Today’s correspondent has a question:

With regard to mandatory notifications and impairment of Paramedics.

Can an employer/ambulance service prejudice a legal case (e.g. wrongful dismissal/unfair dismissal/workers compensation) by reporting an employee or past employee who they believe is impaired and unable to work as a Paramedic professional? E.g.  A Paramedic is unfortunately injured at work.  They are recovering from their injuries, but the service is concerned the paramedic cannot complete their duties (at least for the next 12-24 months) to an acceptable standard on account of multiple injuries. 

Can notifying a perceived impairment of a practitioner be considered vexatious and used in legal proceedings for damages etc?

I’m not sure if the use of the word ‘can’ is meant to mean ‘can they’ in the sense ‘are they allowed to’ or ‘may they …’ or does it mean ‘can they prejudice a legal case by making a report’ as in will such a report prejudice those other proceedings. I’ll try to answer both.

A practitioner is required to notify the relevant authority in their jurisdiction if they are aware that another practitioner has engaged in notifiable conduct (Health Practitioner Regulation National Law s 141). Notifiable conduct includes ‘a registered health practitioner… (c) placing the public at risk of substantial harm in the practitioner’s practice of the profession because the practitioner has an impairment’ (s 140).   Impairment (s 5):

… means the person has a physical or mental impairment, disability, condition or disorder (including substance abuse or dependence) that detrimentally affects or is likely to detrimentally affect—

(a)        for a registered health practitioner or an applicant for registration in a health profession, the person’s capacity to practise the profession…

An employer of a registered health practitioner is also required to make a notification regarding an employee’s conduct (s 142).  If there is a finding that the practitioner does have an impairment, the relevant tribunal can impose conditions on the practitioner’s registration and in the most extreme case, suspend the practitioner’s registration (s 191).

The critical issue is that the report is mandatory. The employer, or a senior paramedic in a management position have no right to withhold a report if they believe the circumstances exist, that is that the practitioner is ‘placing the public at risk of substantial harm in the practitioner’s practice of the profession because the practitioner has an impairment’. It is irrelevant that there are other proceedings on foot.  So if the question is ‘may they make that report if there are other proceedings on foot?’ the answer is not only may they, they must.

Will that influence those other proceedings? I would not think so, Hearings are not by surprise. People make claims and put evidence before tribunals. If there was a ‘wrongful dismissal/unfair dismissal/workers compensation’ claim on foot, it would be well known that the issue involves the paramedic’s capacity to perform their task. The fact that there has also been a report made under the Health Practitioner Regulation National Law is likely to be irrelevant but equally raise nothing that is not already being raised.

I think the more interesting issue is to return to the definition of ‘notifiable incident’. To repeat the definition, it is that ‘a registered health practitioner… [is] placing the public at risk of substantial harm in the practitioner’s practice of the profession because the practitioner has an impairment’.  There is no obligation to report a paramedic’s impairment, unless it is impacting on the practice of their profession. An employer who is managing an employee’s return to work may well have options to give the employee duties that do not involve practice, or which limit the employee’s practice such that their illness or injury does not put the public at risk.

The issue may arise if an employee resisted those restrictions, eg if the employee argued they were fit for duty and the employer does not believe that to be the case. In those circumstances referral may be quite useful. It would allow a panel, appointed by the Board, independent of the employer and the paramedic, to make a determination. If they found there was an impairment and imposed conditions on the paramedic’s registration, everyone would be bound by that finding. The paramedic could not practice, and the employer could not expect or require, the paramedic to practice contrary to those conditions. If the Panel found no impairment that would be significant but may not determine the matter. It may be that an employer would still want to restrict duties under their Work Health and Safety obligations. For example, if the allegation is that the paramedic’s PTSD is an impairment, a panel may find that they are not currently impaired. An employer does have duties not to expose their employee to unreasonable risk. It may be that, whilst they are not currently impaired, if they return to full duties they will again be exposed to traumatic events and their impairment will return.

The issue may also arise if an employer is managing an employee’s return to work with limited duties when they discover the employee is working a 2^nd job without restrictions. That may well inspire the first employer to seek to terminate the employee’s position and may also make them feel that they need to make a report to the relevant authority.  If the employee sought a remedy for unfair dismissal the report would not add anything new and would probably be irrelevant.

Where a report may be relevant would be if the employer really did believe that their employee was practising with an impairment that was putting the public at risk and the employee failed to abide by restrictions or accept alternative duties. In those circumstances the employer dismisses the employee who then lodges an unfair dismissal claim whilst practising with a private provider. In that case if the employer DID NOT file a report, the employee’s lawyer may well seek to rely on that to show that the employer does not really believe that the grounds for the dismissal really exist. In that case the employer would have another reason to make the report but that also doesn’t change the position that if they do believe the paramedic is impaired, they must make the report even if it also supports their case. That does not make the report ‘vexatious’.

A report would only be considered vexatious if it was indeed vexatious that is ‘brought without sufficient grounds for winning, purely to cause annoyance to the defendant.’  If a report was made where the person making the report did not believe that the notifiable conduct exists but in order to get some forensic advantage, that would be vexatious.  If that was the claim, it could be tested in any hearing where it was relevant. If on the other hand, the person making the report believed that the paramedic had engaged in notifiable conduct then they are obliged to report it regardless of any consequences it has in other related proceedings.  That is not vexatious even if by some process it harms the employee’s position.

Conclusion

To rephrase the questions:

May an employer/ambulance service report a paramedic for impaired practice whilst there are related proceedings (eg unfair dismissal/workers compensation) on foot?

The answer to that question is that if the employer or senior paramedic honestly believes that the paramedic is ‘placing the public at risk of substantial harm in the practitioner’s practice of the profession because the practitioner has an impairment’ then they are required to make a report, regardless of the consequences for those other proceedings.  Not only ‘may’ they lodge a report, they must.

The alternative question is:

Would an employer/ambulance service prejudice a legal case (e.g. wrongful dismissal/unfair dismissal/workers compensation) by reporting an employee or past employee who they believe is impaired and unable to work as a Paramedic professional?

I don’t see how the report would prejudice the other proceedings. The facts and supporting evidence that support the report would be known to all the parties and to the extent that they are relevant they will be put before the tribunal hearing the proceedings. The presence or absence of a report is unlikely to be relevant.

A report will be vexatious if it is filed to gain an advantage where the person making the report does not really believe that the paramedic is impaired.