This is the first of three posts for the day where I’m responding to questions that have come in over the past week. The first revisits the question of ‘When is an Intensive Care Paramedic an Intensive Care Paramedic? (August 2016, 2019).’ In that (and other earlier posts) I was discussing the situation where people who work as Intensive Care Paramedics (ICP’s) were rostered to fill a shift that is usually filled by someone with a lower skill set. That is not quite the case with today’s question. Today’s correspondent’s (edited) question is:
Many … overseas and interstate Paramedics have come to SA Ambulance (SAAS) as part of ‘Paramedic’ recruitment over the past few years… We are called Qualified Ambulance Paramedics (or ‘QAPs’ colloquially)… Those of us already qualified as ICPs were initially (upon recruitment) promised a pathway to Intensive Care Paramedic Authority to Practice (ATP). I understand budgetary constraints can put a stop to things (like recruitment of ICPs), but I would think that registration would help here. ATP is just a piece of paper from an employer and does not determine if one is experienced and trained to an acceptable level.
… We are all registered Paramedics, and hopefully know how to work within our qualifications, experience and training. The service is stopping us doing that with the threat of reprimand if we step outside our ATP which is that of Paramedic (the lowest skillset for a Paramedic in the country).
E.g. A South African Critical Care Paramedic, 20+ years’ experience at CCP level, 10+ intubations per week, more experience than the highest level clinicians in SAAS, is now back to base Paramedic level with no pathway for increased scope (even with same pay level).
• Each career SAAS ambulance has equipment to ICP level (Endotracheal Tubes, surgical cricothyroidotomy kits etc, and medications for ICP level treatment) – equipment is available to be used…
• There have been instances of inappropriate delay for clinical support (ICP backup) where a QAP could have done these skills, often with more experience than current ICP in the service… [for example] a Paramedic in our service cannot offer a simple fluid bolus for dehydration unless the patient is critical or the Paramedic calls for clinical backup from an ICP or a comcen clinician for approval. An ICP can offer this without question or concern…
- What makes an ICP an ICP?
- Do you think AHPRA will ever list skills and competencies for Paramedics?
- Do you think AHPRA will move to have endorsement for Paramedics, like the Registration Scheme for New Zealand with Critical Care Paramedics and Extended Care Paramedics?
- Can I use my ICPs skills and rely upon the doctrine of necessity and still keep my job as a Paramedic?
- What role does credentialling have in the monitoring and authorisation of Paramedics to practice in Australia?
- Do you think a central credentialling body would be beneficial to the profession? I.e. protect the public?
I have indeed addressed these issues in earlier posts (start with the link above). My conclusion remains: ‘Don’t let the patient die (June 11, 2019)’ (and see also the discussion in the comments that follows that post).
I have previously written on the concept of ‘authority to practice’ (see What is a paramedic’s ‘authority to practice’? (August 19, 2014)) but that was written before paramedics joined the ranks of the registered health professions so that answer is largely irrelevant.
The answer to this question is at the intersection of employment law, negligence law (and the duty a practitioner owes their patient) and the Health Practitioner Regulation National Law.
Employment law says that an employer takes on employees to do the work that the employer wants them to do, and employer must obey the lawful and reasonable directions of an employer. An employee cannot be compelled to act illegally and, in the context of the professions, in an unprofessional manner. It would not be lawful for an employer to direct their paramedic employees to sell fentanyl out of the back of the ambulance (ie to be drug dealers). Nor would it be lawful for an employer to direct a paramedic to provide less than optimal care eg to withhold pain relief from a patient because the drugs are too expensive (or because they can make more money selling them). Of course that doesn’t mean that the paramedic who refuses those directions won’t be fired or hopefully will chose not to work there. No doubt people get fired for failing to comply with unlawful directions and other people choose to walk away.
When discussing the vicarious liability of hospital authorities for the negligence of doctors, Kirby J, in Ellis v Wallsend District Hospital (1989) 17 NSWLR 553 at pp. 563-564 said (emphasis added):
It is no answer to [the Hospital authorities] to say that their staff are professional men and women who do not tolerate any interference by their lay masters in the way they do their work … The reason why the employers are liable in such cases is not because they can control the way in which the work is done — they often have not sufficient knowledge to do so — but because they employ the staff and have chosen them for the task and have in their hands the ultimate sanction for good conduct, the power of dismissal ….
Employers cannot and do not control the way doctors practice medicine nor can they control the way paramedics practice paramedicine, but such a broad statement does need clarification. An employer will publish policies and procedures (in the paramedic context, Clinical Practice Guidelines) to ensure that patients receive the same type of care and to define what sort of services they provide. A paramedic may think they are competent to perform surgery in the ambulance but that is not acceptable practice and even if it was it is not a service that the employer chooses to offer (see Patient’s demands do not create a duty to treat (April 11, 2020)). And how an employer chooses to deliver that service is a matter for them. To again quote Kirby J (p. 563):
In my opinion authorities who run a hospital [or an ambulance service], be they local authorities, government boards, or any other corporation, are in law under the selfsame duty as the humblest doctor [or paramedic]; whenever they accept a patient for treatment, they must use reasonable care and skill to cure him of his ailment. The hospital authorities cannot, of course, do it by themselves: they have no ears to listen through the stethoscope, and no hands to hold the surgeon’s knife. They must do it by the staff which they employ
But that doesn’t mean they have to employ every staff member to do every task. They have to provide the service to the patient so they could employ only ICPs or could they employ people with a range of skill sets with processes to escalate care when required.
It must therefore be the case that employers can direct their staff, including paramedics, how they are to practice their profession but that has to be subject to the limits already described, that is the direction must be both lawful and reasonable. And it has to be considered in the context of the ambulance service’s, and the paramedic’s duty to act in the best interests of the patient.
Registration as paramedics is now critical. The Paramedicine Board has (at this stage) only one type of registration – either you are a paramedic, or you are not. They do not (yet) have specialist registration – Intensive Care Paramedic, Extended or Community Care Paramedic etc.
One question I was asked was:
2. Do you think AHPRA will ever list skills and competencies for Paramedics?
We really should distinguish between AHPRA (the Australian Health Practitioner Regulation Agency) and the Boards. AHPRA is the secretariat for the Professional Boards, but it is the Professional Boards that set standards, determine professional outcomes etc. The question should be ‘Do you think the Paramedicine Board will ever list skills and competencies for Paramedics?’ and my answer is ‘Yes, they already have’ – see Paramedicine Board Professional capabilities for registered paramedics (2013) – but this does not distinguish between ‘classes’ of paramedic.
What follows is that the titles ICP, CCP, ECP etc are titles given by employers. At law they don’t mean anything, at law everyone is a paramedic. The question of professional competence is therefore a matter for the paramedic and ultimately a board or tribunal acting under the Health Practitioner Regulation National Law. A paramedic is guilty of unsatisfactory professional performance if
… the knowledge, skill or judgment possessed, or care exercised by, the … [paramedic] in the practice of [paramedicine] … is below the standard reasonably expected of a [paramedic] of an equivalent level of training or experience.
They are guilty of unprofessional conduct if their conduct ‘… is of a lesser standard than that which might reasonably be expected of the health practitioner by the public or the practitioner’s professional peers …’ (Health Practitioner Regulation National Law cl 5 ‘Definitions’).
In context assume a patient is critically ill. The paramedic is employed as a QAP but has many years experience and knowledge. The paramedic correctly diagnosis the problem, understands what the appropriate treatment is, knows how to administer that treatment and has the equipment on hand to do so, but fails to do so because the particular procedure is not listed on the ‘Authority to Practice’ issued by the employer. The patient dies. I am not a paramedic so it is up to my correspondents and to other paramedics reading this blog to answer the questions:
- Is that conduct below the standard reasonably expected of a paramedic with that level of training or experience?
- Is that what you, as a peer, would reasonably expect that paramedic to do in those circumstances?
If you answer question 1 with a ‘yes’, and question 2 with a ‘no’ then you are saying that this conduct is unprofessional, regardless of what the employer says. Perhaps you are saying that what we expect a paramedic to do is to use their skills to save the patient’s life which is more important that complying with a administrative edict. And if an employer cannot direct a paramedic to engage in unprofessional practice, then such an edict cannot be a lawful or binding direction.
This answer does depend on the claim that the paramedic could diagnose the problem and had the skills to deal with it. A paramedic may be guilty of unsatisfactory conduct if they attempt to do something that they don’t know how to do. Employer’s do have to define what they expect of their staff so there is a truth in the claim that they have to assess an employee’s skill set and set out what they expect their staff to do and what they don’t expect them to do. This can also work in the paramedic’s favour if it is alleged they should have done something that they did not and they can confirm that it was not in their skill set nor did their employer expect it to be in their skill set.
The Paramedicine Boards Code of Conduct for paramedics says good paramedic practice includes [2.1(d)] ‘recognising the limits to a practitioner’s own skills and competence and referring a patient or client to another practitioner when this is in the best interests of the patients or clients’. The Code also says (at [2.2]):
Maintaining a high level of professional competence and conduct is essential for good care. Good practice involves:
A paramedic who knows and understands their own skill set (not that listed by the employer), is focussed on the patient, understands the risk to the patient if a particular treatment is not given, knows that the treatment in question is the accepted treatment in the circumstances and weighs up the cost of waiting for an endorsed ICP versus acting now, is engaged in good paramedic practice.
Finally the Code also 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.
In context one can see the issue of ‘other options’. There is the option to treat the patient or to wait for an endorsed ICP. Murray v McMurchy  2 DLR 442 was a Canadian case about treatment without consent. In that case the court said (at -) ‘There are times under circumstances of emergency when both doctors and dentists must exercise their professional skill and ability without the consent which is required in the ordinary case’ but for that doctrine to apply the action taken must be (emphasis added) ‘necessary, as opposed to being convenient, for the protection of the life …’.
If a person is employed as a QAP and thinks they should give a treatment that is reserved for an endorsed ICP because it would be more convenient is not in the same position as a paramedic who thinks they should give the treatment because the patient will die before the ICP arrives.
That is a long answer and in fact it needs to be longer to fully address all the questions asked. At the risk of skipping important details I’ll give my answers to the questions:
- What makes an ICP an ICP?
An ICP is an ICP if that is the title their employer gives them. It is not a title provided for in law.
2. Do you think AHPRA will ever list skills and competencies for Paramedics?
Yes, they already have.
3. Do you think AHPRA will move to have endorsement for Paramedics, like the Registration Scheme for New Zealand with Critical Care Paramedics and Extended Care Paramedics?
I don’t have a view on this matter. That question should be directed to the Paramedicine Board (not AHPRA)
4. Can I use my ICPs skills and rely upon the doctrine of necessity and still keep my job as a Paramedic?
If it’s a question of life or death I think it is essential to use your ICP skills and to do so is consistent with good paramedic practice as defined by the Paramedicine Board. Whether you will still keep your job is a matter for the employer. The employer may sack you and you could seek a remedy for ‘unfair dismissal’. A dismissal is ‘unfair’ if it is ‘harsh, unjust or unreasonable’ (Fair Work Act 2009 (Cth) s 385). One could certainly argue it is all those things if you are dismissed for accurately diagnosing and treating a patient and saving their life even if it is contrary to the employer’s stated ‘authority to practice’. But getting a remedy doesn’t guarantee you’ll get your job back or that you would want to work for someone who wanted to sack you in those circumstances. The best you can say is you can rely on your status as a registered health professional who provided good care in accordance with professional standards to argue that any dismissal is ‘unfair’.
5. What role does credentialling have in the monitoring and authorisation of Paramedics to practice in Australia?
Edited out of the question, above, was the statement ‘Credentialling refers to the requirements set out by SAAS allowing you the authority to provide care to you patients.’ In that definition it is largely an internal matter. In any action a court or tribunal will consider matters like CPGs (see Queensland v Masson  HCA 28 discussed in the post High Court overturns finding of negligence against Queensland paramedic (August 13, 2020)). But there it was accepted that the CPGs represented best practice not ‘credentialling’ per se. ‘Credentialling’ as defined will be relevant in any action against a paramedic (or an ambulance service) but it’s certainly not the ‘be all and end all’. Just as in Masson’s case where the court accepted 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’ so too a court would accept such a departure from the ATP where that departure was consistent with good practice – that is the paramedic had the relevant skills and training, the departure was warranted in the best interests of the patient, the decision was made with a patient centred focus, the treatment was consistent with ‘current and accepted evidence base of the health profession’ and the paramedic considered ‘the balance of benefit and harm’ in coming to their decision.
6. Do you think a central credentialling body would be beneficial to the profession? I.e. protect the public?
I think there is a central credentialling body, it’s the Paramedicine Board.
For other related posts see:
- Performing an Emergency tracheotomy (or life mimics art?) (March 11, 2018) and
- I’m trained but am I allowed to use my skills? (May 25, 2018).