Today’s correspondent has a question about the use of the Ferno pedi-mate by a jurisdictional ambulance service. Details of the device can be found here: http://www.ferno.com.au/Ferno/media/Image-Slides/Ferno/Instructions/Ferno-QR-Pedi-Mate-Operators-Instructions.pdf. The Operator’s instructions say:
The Multi-Stretcher Pedi-Mate is designed to secure infants and toddlers from 4.5 kg to 18 kg. It can be securely attached to a wide range of cots without the need to attach to specific mount points.
The Pedi-Mate is for professional use by one or more trained operators. It is designed for use only in an emergency setting and only by suitable trained personnel. Where child restraint is needed outside of this setting, the transport vehicle should be fitted with restraints in accordance with applicable local standards and regulations.
My correspondent says that the jurisdictional ambulance service has issued guidelines that ‘state that newborns of any weight should be restrained and only need to be swaddled to fit comfortably within the restraint’. My correspondent feels ‘uncomfortable using the pedi-mate outside of design specifications.’ I am asked:
Can the ambulance service instruct / encourage its employees to use a safety restraint device outside of its safety specifications?
I have deliberately avoided identifying the ambulance service in question and have not asked for the issued guidelines as I don’t want to get into specifics. This is going to be general principles only.
In my view the relevant legislation to consider is the Work Health and Safety Act and I’ll use as my reference the model Act as published by WorkSafe Australia rather than the Act as passed in any particular jurisdiction. The primary duty of a person conducting a business or undertaking (a PCBU) is to provide, so far as is reasonably practicable, systems of work that are safe for workers and those affected by the work (s 19(1) and (2)). In the context of an ambulance service that must include ensuring, so far as is reasonably practicable, that the systems of work and the use of plant (which includes ‘any machinery, equipment, appliance, container, implement and tool’ (s 4)) is safe for patients.
Arguably the use of the pedi-mate for children who weigh less than 4.5kg is not safe as it is outside the manufacturer’s recommendations; but we’re not sure (at least from the owner’s manual) why or how the manufacturer determined that weight limit. What will determine whether the PCBU’s directions are reasonable is the risk assessment the PCBU carried out, ideally in consultation with the manufacturer. Section 18 of the Act says that what is ‘reasonably practicable’
… in relation to a duty to ensure health and safety, means that which is, or was at a particular time, reasonably able to be done in relation to ensuring health and safety, taking into account and weighing up all relevant matters including:
(a) the likelihood of the hazard or the risk concerned occurring; and
(b) the degree of harm that might result from the hazard or the risk; and
(c) what the person concerned knows, or ought reasonably to know, about:
(i) the hazard or the risk; and
(ii) ways of eliminating or minimising the risk; and
(d) the availability and suitability of ways to eliminate or minimise the risk; and
(e) after assessing the extent of the risk and the available ways of eliminating or minimising the risk, the cost associated with available ways of eliminating or minimising the risk, including whether the cost is grossly disproportionate to the risk.
The pedi-mate says it is suitable for children that weigh 4.5kgs or more. The WHO Weight for Age charts shows that 50% of girls are expected to reach 4.5kgs at 5.5 weeks old. 97% are expected to have reached that weight at 4 months old. 3% of girls will weigh more than 4.5kgs at birth. For boys, 50% will weigh 4.5kg at 4.5 weeks, 97% at 9 weeks and again 3% will exceed 4.5kgs at birth. Let us accept there is a risk in carrying children under 4.5kgs in the pedi-mate. What can the ambulance service do that is ‘reasonably practicable’?
The ‘normal’ way to manage the risk is to restrain a child in approved child restraint. There are issues for a PCBU/ambulance service. It would be impracticable to put a child restraint in every ambulance given the amount of room that they take up and whether there are appropriate ways to secure them. It is also complicated by the very nature of ambulance work and the fact that the child may be subject to intensive medical intervention that could not be delivered in a normal child seat. Given that 50% of children weigh 4.5kg at 5.5 weeks, that some neo-nates will be carried in other equipment (eg humidi cribs etc) the number of times that a child under that weight will have to be carried will be relatively low but certainly not never given ambulance services transport sick children so that may mean more of them will be in the lower weight scales. Carrying a child who weighs less than 4.5kg may not be ideal but it may be that people expert in ergonomics and the manufacturer are satisfied that where a child is ‘swaddled to fit comfortably within the restraint’ that reduces the risk to a level that is as low as is ‘reasonably practicable’.
It has to be remembered that the WHS Act does not require, nor could it require, risk be reduced to zero. It requires that risk is reduced as far as reasonably practicable taking into account the factors listed in s 18. The question is, and would be if a child was injured in an accident were they were not restrained by the pedi-mate, ‘did the PCBU undertake the sort of risk assessment required by s 18?’ If they did then they have met their duty.
What follows is that a PCBU can give the sort of directions referred to here. Whether the risk assessment behind the conclusion that ‘newborns of any weight should be restrained and only need to be swaddled to fit comfortably within the restraint’ was satisfactory is a matter to be judged in all the circumstances. If a person does think that the decision was unreasonable, they would need to point to another ‘reasonably practical’ risk mitigation measure that the PCBU should adopt (or, in the event of a prosecution, should have adopted: Kirk v Industrial Relations Commission  HCA 1). If my correspondent is concerned about the risk assessment process, then it should be raised via the relevant Work Health and Safety consultation processes adopted in their workplace. One would expect that the PCBU could point to evidence, and advice received, to confirm that the direction is based on an appropriate risk assessment.