I have previously reported on the matter of Masson v State of Queensland, first in the Supreme Court of Queensland (Queensland Ambulance not negligent in treatment of patient’s extreme asthma (July 25, 2018)) and then in the Court of Appeal (Queensland Court of Appeal finds paramedic was negligent in treatment of extreme asthma (May 11, 2019)). Today, in State Of Queensland v The Estate of the Late Jennifer Leanne Masson [2020] HCA 28 the High Court unanimously allowed an appeal holding:

… that the State of Queensland, as provider of ambulance services under the name “Queensland Ambulance Service” (“QAS”), was not liable in negligence, either vicariously or directly, by reason of the failure of its ambulance officers to promptly administer adrenaline to Jennifer Masson, a chronic asthmatic, who suffered a severe asthma attack.

The High Court produces a summary statement of its reasons which you can read here – https://cdn.hcourt.gov.au/assets/publications/judgment-summaries/2020/hca-28-2020-08-13.pdf.  The discussion that follows below is my summary of the judgement (and you can read the Court’s reasons, not just the summary, here).

The court was constituted by Kiefel CJ, Bell, Keane, Nettle and Gordon JJ.

Kiefel CJ, Bell and Keane JJ

There were two questions to be answered. The first was ‘did Mr Peters, the treating intensive care paramedic ‘consider’ adrenaline as required by the CPM?’ and if he did ‘was the decision to administer salbutamol in preference to adrenaline a reasonable response?’  The trial judge had determined that the answers to both those questions was ‘yes’. The Court of Appeal found that the answer to both questions was ‘no’.

After recounting the history in the courts below (and reported in my earlier posts) their Honours said (at [10]:

The standard of care expected of Mr Peters was that of the ordinary skilled intensive care paramedic operating in the field in circumstances of urgency . Self-evidently, this is a less exacting standard than that expected of specialists in emergency medicine. The Court of Appeal correctly observed that intensive care paramedics cannot be expected to make fine professional judgments of a kind that require the education, training and experience of a medical specialist. This is not to say, however, that an intensive care paramedic is not expected to exercise clinical judgment. The guidance in the CPM is posited upon the assumption that ambulance officers will exercise clinical judgment and that officers may depart from its guidelines where the departure is justified and is in the best interests of the patient.

Importantly they said (at [11]) that the Clinical Practice Manual (the CPM) ‘was not, determinative of the range of reasonable responses for an intensive care paramedic treating an asthmatic patient in imminent arrest who presented with Ms Masson’s symptoms’. Having assessed Ms Masson’s condition it was open to Mr Peters to act upon his clinical judgment. At [22] they noted:

The stated object of the CPM was the provision for ambulance officers at all levels of clinical practice with a comprehensive guide to pre-hospital treatment and care. Notably, the CPM was said to depart from earlier “Clinical Protocols” in its emphasis on the exercise of officers’ “good judgement”.

And, at [34] they noted that the CPM required treating paramedics to ‘consider’ the use of various drugs.

… the CPM explained the use of the term “consider”:

“When this term is used it implies that the ambulance officer has to make a judgement regarding application of the following treatment modalities based on potential benefits and adverse effects. It does not imply that the following treatments are automatically appropriate or sanctioned. Consultation should be used if doubt exists.”

The Court of Appeal had found that when considering whether to use salbutamol or adrenaline a paramedic should have regard to the speed with which the drugs would act. At [70]-[71] their honours said:

There was no basis in the evidence for concluding, in the case of an asthmatic patient in imminent arrest, that the “consideration” of adrenaline in accordance with the CPM was not to be informed by the ambulance officer’s clinical judgment, allowing that in the case of a patient with Ms Masson’s high heart rate and high blood pressure IV salbutamol might be preferred.

Contrary to the Court of Appeal’s analysis, there was ample evidence to support the trial judge’s finding that, in 2002, a responsible body of opinion within the medical profession favoured the administration of IV salbutamol in the initial stage of treatment for a patient in Ms Masson’s overall condition, with her high heart rate and high blood pressure.

At [73] they said:

Intensive care paramedics are expected to exercise clinical judgment in applying the guidance contained in the CPM. If, as the trial judge found, Mr Peters’ decision to administer IV salbutamol to Ms Masson reflected his judgment that her high heart rate and high blood pressure were contra indications for adrenaline, the fact that that judgment was supported by a responsible body of opinion within the medical profession would be inconsistent with finding that Mr Peters failed to apply reasonable care. It remains to consider whether the Court of Appeal was right to overturn the finding that Mr Peters’ decision not to administer adrenaline in his initial treatment of Ms Masson was a clinical judgment.

In other words, the issue at this point became whether Mr Peters made a clinical decision. The CPM flowchart (shown in the earlier posts) identified the following symptoms as indicative of a patient at risk of ‘imminent arrest’:

GCS < 12/

Bradycardia/

Absent pulses

In those case a paramedic was directed to, amongst other things, consider adrenaline. The question was did Mr Peters consider and reject adrenaline (ie make a clinical judgement) or did he not consider adrenaline because Ms Masson was hypertensive and tachycardic, not bradycardic. At [78] their honours said:

… it was clear that Mr Peters considered adrenaline, the inference that he rejected it because he believed that Ms Masson’s tachycardia and hypertension were contra-indications for its use was well open. The trial judge’s finding that Mr Peters made a clinical judgment not to administer adrenaline because of the presence of Ms Masson’s high heart rate and high blood pressure was neither contrary to compelling inferences nor glaringly improbable. It should not have been overturned.

In other words, Mr Peters did not misunderstand that the CPM was intended to be a flexible guide to decision making rather than a strict, inflexible protocol. He understood that he had to make a call on which treatment to give and he did consider adrenaline, but determined that in the circumstances salbutamol was the preferable drug given Ms Masson’s presentation. He understood he needed to ‘consider adrenaline’ and he did, and ruled it out- a clinical judgment.

They concluded (at [79]):

The trial judge was rightly critical of the tendency of the parties in argument to treat the flowchart as if it were a statute or legal document. As his Honour explained, the flowchart was “intended to guide and assist rather than [to] proscribe decision-making” . The flowchart prompted consideration of adrenaline but did not require its administration. The decision Mr Peters made in the face of Ms Masson’s high heart rate and high blood pressure, to administer IV salbutamol, was supported by a responsible body of medical opinion. In the circumstances, his Honour’s conclusion that Mr Peters’ treatment of Ms Masson did not fall below the standard of care expected of an ordinary skilled intensive care paramedic was clearly correct.

Nettle and Gordon JJ

Their honours reviewed the evidence and the proceedings in the lower courts and said (at [139]):

In the result, the overall effect of the evidence led before the primary judge was that a responsible body of opinion in the medical profession in 2002 supported the view that Ms Masson’s high heart rate and blood pressure in the context of her overall condition provided a medically sound basis to prefer salbutamol to adrenaline at the time of initial treatment. Further, as his Honour observed , he was bound to bear in mind that paramedics are not medical practitioners specialising in emergency medicine. In the urgent reality with which Mr Peters was presented, he was faced with the dilemma of choosing between the administration of adrenaline, which he correctly understood would carry a real risk of worsening the patient’s condition, and salbutamol, which did not carry that risk. Consistently with a responsible body of medical opinion, he chose the latter, and such evidence as there was of practice among paramedics was that it was not an inappropriate decision. The reality was, as his Honour said , that this was a decision which could reasonably, in light of the competing risks, have gone either way. No breach of duty of care was established.

Discussion

This case is a recognition of growing professionalism in paramedicine. Led by the ambulance services (in this case QAS) paramedic ‘protocols’ have moved to ‘guidelines’ recognising the capacity of paramedics to make complex decisions when faced with complex conditions. The High Court has recognised that development and acknowledged that paramedics are capable of and expected to make clinical decisions. Those decisions need to accord with a ‘responsible body’ of opinion.

In that area there is still some way to go. Unlike earlier cases (think Neal v Ambualnce Service of NSW, Ambulance Service of NSW v Worley and Lithgow City Council v Jackson, all discussed on this blog) there was evidence from paramedics in this case. Each side called an ‘expert paramedic’ but they also both called ‘expert medical practitioners’ so there is still some way to go before a court will say that a decision has to be consistent ‘with a responsible body of para-medical opinion’ but there is a start.

Most importantly the court recognised that Mr Peters was an appropriate clinical decision maker. He had training and experience and knowledge to bring to bear and he was facing a complex case where drugs such as adrenaline were both indicated, and contra-indicated. Recognising that a poor outcome does not mean a poor decision is vindication that paramedics are not mere automatons required to implement procedures written by doctors but they too are health care professionals. That step has been taken further by the registration of paramedics under the Health Practitioner Regulation National Law.

With respect to my professional brethren part of the reason this case got to the High Court may have been the way the lawyers ran it. Queensland’s case was that Ms Masson was not at risk of ‘imminent arrest’ as all three criteria (GCS < 12, Bradycardia and absent pulses) were not present and therefore adrenaline was not an option. That is the State itself tried to treat the CPM as proscriptive and this was the subject of criticism by Kiefel CJ, Bell and Keane JJ at [79] quoted above.  With that ‘case theory’ it is not surprising that in evidence Mr Peters said that he was ‘prohibited’ from giving adrenaline.

The trial judge accepted that Mr Peters used the word ‘prohibited’ but he did not think that at the time of treating, Mr Peters really believed that he was not allowed to use the drug, just that given her presentation it was contra-indicated. The Court of Appeal took Mr Peters’ use of the word ‘prohibited’ as evidence that he did not ‘consider’ adrenaline as he was not allowed to.

Nettle and Gordon JJ said (at [111]-[112])

Possibly, if Mr Peters had been a judge or a lawyer or someone else whose education and experience has more to do with semasiology than the applied science of critical emergency care, he might have chosen an expression such as “not recommended” or “not appropriate”. But it is neither surprising nor at all unlikely that a paramedic whose day to-day business is one of making life and death decisions should conceive and speak of a “not recommended” or “not appropriate” course of initial treatment as one that is “not permitted”. Common sense and ordinary experience dictate that, just as a paramedic’s initial treatment must be immediate and unhesitating, a paramedic is likely to be inclined to conceive and speak of actions in perfunctory and unqualified terms. Of course, exceptionally, such a person might be so particular in his or her choice of language as to convey that, by stating that something is “not permitted”, he or she means that all choice is excluded. But whether that was the case here could only be decided by seeing and hearing the witness give his oral evidence.

The oft unspoken reality that lay witness statements are liable to be workshopped, amended and settled by lawyers, the risk that lay and, therefore, understandably deferential witnesses do not quibble with many of the changes made by lawyers in the process – because the changes do not appear to many lay witnesses necessarily to alter the meaning of what they intended to convey – and the danger that, when such changes are later subjected to a curial analysis of the kind undertaken in this matter, they are found to be productive of a different meaning from that which the witness intended, means that the approach of basing decisions on the ipsissima verba of civil litigation lay witness statements is highly problematic. It is the oral evidence of the witness, and usually, therefore, the trial judge’s assessment of it, that is of paramount importance.

What was said in a written statement, 9 years after the event and no doubt ‘workshopped’ by lawyers was not to be preferred to the oral evidence of what actually happened when it was clear that Mr Peters did ‘consider’ adrenaline and ruled it out.

Conclusion

One cannot get over the tragedy here. Ms Masson had an asthma attack in 2002. She lived in a persistent vegetative state until her death in 2016. In 2020 a court decides that the treating paramedic was not negligent. I just cannot imagine what that has been like for the Masson family or for Mr Peters and his colleagues and this author extends his sympathy to all involved.

From a distance however this case is a step forward in the growing field of paramedicine and paramedic professionalism. Paramedics are not only expected to make clinical decisions is it is recognised that they are trained and capable of making those decisions with due recognition for the circumstances that are unique to paramedic practice.