Today’s correspondent has:

… some questions about the responsibility of the employer vs employee in managing fatigue levels at work.

I’m a Paramedic with an Australian ambulance service. The branch/station that I work at works a call roster with another Paramedic. As a new staff member at this branch I have asked management for some guidance around the roster and call expectations in regards to fatigue management and have been told on multiple occasions that it is our individual responsibility to manage our fatigue levels, and that we should be taking uninterrupted breaks if we feel we are too fatigued to remain on duty. My concern with this is that 1) At certain levels of fatigue we become unable to make unimpaired decisions about our own fatigue levels and, 2) What impact is compounded fatigue having on our decision making ability?

We work a rotating roster of 4 or 5 dayshifts 0800-1900 with a call period from 1900-0800. The expectation is that we would be at the branch for our dayshifts and respond from home in the ambulance if there is a case during the on-call period.

We have two options for managing our fatigue. At the end of a case during the on-call period (where we have not already had a 10-hour continuous break since the completion of our dayshift) we would commence a 10-hour rest break, where we return to our on-call state (home) and are available to be dispatched to further cases. If no case occurred in this time, we would be expected back at the branch for the remainder of our dayshift at the completion of the 10-hour rest break. If this rest break is interrupted for a case, we would then recommence a new 10-hour rest break at the completion of the case. As we start our week in a call period it is not uncommon that we can be ‘chasing’ a 10-hour break for multiple days.

If we felt at the end of a case that we were too fatigued to recommence call we can take an uninterruptible rest break where we would sign off and return home in our own vehicles for 10 hours. At the completion of this uninterruptible rest break, we would then be expected to return to duty, regardless of the time of day. This can mean that we would be expected to return to duty in the early hours of the morning.

Just a couple of other notes on this point.

* In the last few months, it has not been uncommon for crews to be doing 30 or more hours of call in a 5-day period.

* If we take an uninterruptible rest break, we are expected to make our own way home, unless someone else is at the branch and can drive us home (generally daytime hours only). Our branch doesn’t have a staff carpark, so staff don’t leave vehicles on the street for the 5 days we are on call, and our town doesn’t offer an overnight taxi service. This means staff are walking home at all hours of the day and night if they require an uninterrupted break, increasing crew reluctance to take an uninterrupted rest break overnight or in inclement weather.

* The staff that have been working at the branch for a number of years have been adjusting to the increasing workload and despite them feeling that they are doing too many hours, they also feel uncertain as to when they should be taking uninterrupted breaks as they have been able to meet the demands of the town for a number of years. Additionally, if a crew takes an uninterrupted fatigue break in the early hours of the morning the town can be uncovered for potentially 6 hours or more until a replacement crew can be contacted in the morning. When the staff all live in the town there is an element of guilt around leaving the town uncovered.

My concern around fatigue management particularly relate to Paramedic liability if something ‘goes wrong’ such as if we were to crash the ambulance, or make a medication mistake resulting in harm to one of our patients.

(My correspondent has not identified the jurisdiction so I will assume the model work health and safety (WHS) Act applies. That is not the case in either Victoria or WA but the answers will not be significantly different in those jurisdictions).

The short answer is that everyone has responsibility for managing their fatigue. The employer as Person Conducting a Business or Undertaking (PCBU) has an obligation to design the workplace to minimise risks to health and safety of staff. That requires a thought-out fatigue management policy for a service that operates 24 hours a day/7 days a week. A WHS policy must have regard not only to the safety of staff and patients when at work but as noted, when making their way to and from work.

Employees have a duty to take reasonable care of their own safety, follow the PCBU’s work health and safety policies and to raise WHS concerns through the consultation processes in the workplace, whether that’s health and safety representatives, the WHS committee or via an industrial union.

In the heavy vehicle industry the fact that everyone has responsibility for safety, including fatigue management, is reflected in the concept of ‘chain of responsibility’ (see Greencap Understanding Transport Chain of Responsibility (5 October 2018); National Heavy Vehicle Regulator Chain of Responsibility (2020)). Ambulance services are not generally operating heavy vehicles but the principles that give rise to chain of responsibility still exist under modern WHS and OHS legislation.

Who will be liable if ‘something goes wrong?’ It will depend on the circumstances of the particular case, what went wrong and who could have done something about it. If it’s a medication mistake harming a patient the employer will be liable but a registered paramedic my face professional sanction both for their conduct in making the mistake and for their conduct in not taking steps to manage fatigue. In a motor vehicle accident it will be the compulsory third party insurer that will meet any damages claim but the driver may be subject to criminal prosecution – see Meagan Dillon ‘SA paramedic breaks down on the stand as he explains rollover which killed patient’ ABC News (Online) (10 November 2020).

Where employees work out of loyalty to the employer or the community, pasting over the cracks left by inadequate resourcing, they give the employer no problem to fix – ‘Everything’s working fine; no-one’s complaining’.  To manage fatigue employees have to actually insist on applying the policies – take those breaks even if it leaves the community un-serviced. And push to have better policies by raising the matter through your WHS committee, your trade union and the relevant WHS/OHS inspectorate.