A correspondent has
… a few questions …[about] the recent announcement by the Health Services Union that on the 10th of June their members will not respond to non priority 1 jobs for a 24 hour period. Given this is likely the first time this level of industrial action has been taken by paramedics since paramedics were covered under the national registration scheme, there are a few questions which have been raised:
1. Would this action potentially meet the threshold of a violation of the paramedic code of conduct?
2. Has AHPRA ever (to your knowledge) found a health professional liable for participating in industrial action?
I’ll answer the questions in reverse order.
I note again that it is not AHPRA (the Australian Health Practitioner Regulation Agency) that determines what is or is not unsatisfactory professional conduct – see What it means to be a professional paramedic – part 2 (June 6, 2021). AHPRA does maintain a database to provide some access do disciplinary decisions against registered practitioners (see https://www.ahpra.gov.au/Publications/Tribunal-decisions.aspx and https://www.ahpra.gov.au/Publications/Panel-decisions.aspx). From what little information there is, there is nothing to suggest a Panel, Court or Tribunal has been called upon to consider whether action that forms part of industrial action can also constitute unsatisfactory professional conduct.
The answer to question 2 is therefore no, to be best of my knowledge, no professional practice panel, Tribunal or Court has found a health professional acted contrary to the expectations of the profession for participating in industrial action. But, it should be noted, they have also not found that industrial action excused what might otherwise have been unprofessional conduct. The matter has simply never arisen.
The details of the proposed industrial action are set out on the HSU website – see Paramedic and Control Centre Officer Industrial Action June 10 (2 June 2021). This says ‘Industrial Action means we will ban all responses except 1A, 1B, & 1C emergencies…’ That means striking paramedics will not respond to priority 2 emergencies. As a commentator on the HSU facebook page says:
I definitely support the need for industrial action, but I have concerns about this. There have been a number of times I’ve gone to a job that was far more serious than the description would suggest…You just don’t know what you are going to get until you are there. I’m really torn about this.
The risk is that a paramedic crew will be tasked with a task below priority 1 and decline to attend. The patient’s condition deteriorates so the priority is changed, and the crew now arrive. Let us (to tug the emotions but also to draw an analogy with Woods v Lowns, discussed below) assume the patient is a child and suffers irreparable harm that may have been avoided with earlier attendance. What would you say to the paramedics who were available when it was a priority 1 job but, although tasked and available when it was priority 2, refused to come? You might say, as Patrick Wood’s grandmother said ‘this will not be the last you will hear from me’ (Woods v Lowns, (1995) 36 NSWLR 344 at 348).
In answering a question about failure of NSW ambulance paramedics to attend when called upon, I concluded that there would be a strong argument that they could be liable in negligence – see Failure to attend by NSW Police and Ambulance (December 18, 2013). My opinion has not changed.
Lowns v Woods involved a doctor who was at his surgery, ready to see patients but not yet engaged in any patient care. A young child knocked on his door and asked him to come and attend to her brother who was having a seizure nearby. The doctor refused. The doctor was found to have owed a duty of care to the patient even though there was no pre-existing doctor/patient relationship. Critical to that case was that Dr Lowns was at his surgery ready to see patients but not yet engaged seeing patients. He knew the patient was nearby because he was summoned by the patient’s young sister who had run to the surgery. The Court found that the special nature of being a doctor – the status and privileges that affords – meant that in the unique circumstances of that case Dr Lowns owed a duty to attend young Patrick Woods. Patrick suffered permanent brain damage and received $3m in damages from Dr Lowns (Woods v Lowns, (1995) 36 NSWLR 344; affirmed on appeal in Lowns v Woods (1996) Aust Torts Reports 81-376).
That case did depend on the terms of the Medical Practice Act 1938 (NSW) now repealed. Today there are 15 registered health professions, including paramedics. On the other hand the Health Practitioner Regulation National Law does not specifically say that failure to assist in an emergency is ‘professional misconduct’. But the principles are not a world apart. Today paramedics, like doctors, go through extensive training and public expense (albeit students now pay a much higher percentage of the cost of their training). They are in a position of trust and are uniquely positioned to provide emergency care. That is the very essence of being a paramedic at least one employed by NSW Ambulance. If they are assigned a less than priority 1 case, they are being tasked to a job so they know that they are an appropriate response until taking into account physical proximity and clinical skill level. They are not then talking about an abstract patient but a real person who has called for ambulance assistance.
At the time of writing that earlier post, paramedics were not registered health professionals. Now they are. There may not be a specific section saying that failure to attend in an emergency is professional misconduct, but there are obligations on paramedics imposed by the law and by the Paramedicine Board’s Code of Conduct.
In NSW ‘unsatisfactory professional conduct’ (Health Practitioner Regulation National Law (NSW) s 139B) includes:
(a) Conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of the practitioner’s profession is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience….
(l) Any other improper or unethical conduct relating to the practice or purported practice of the practitioner’s profession.
The Paramedicine Board has published an Interim Code of Conduct (June 2018, ‘the Code’) that defines the professional expectation of paramedics. Relevantly the Code says:
Prima facie taking the proposed industrial action and refusing to attend to cases priorities below 1C would be a breach of the Code. A breach of the code would be an example of ‘improper or unethical conduct relating to the practice or purported practice of the practitioner’s profession’ and could therefore constitute ‘unsatisfactory professional conduct’ with resultant implications for a paramedic’s registration.
Paramedics by providing pre-hospital care and perhaps diversion contribute to ‘the effectiveness and efficacy of the healthcare system’ Interim Code of Conduct (June 2018) p. 5) and that contribution will be lost by the removal of services. By refusing to respond to any category 2 task, paramedics are not ‘applying the key principles of risk minimisation and management to practice’ nor are they acting in the best interests of the patient (p 5). By having a blanket refusal to attend (noting that one cannot actually know until you get there the true nature of the patient’s condition) paramedics will not have ‘Care of the patient or client is the primary concern’ (p. 7). In fact, their decision will be influenced by a conflict of interest by allowing their relationship with the Ambulance Service of NSW and the HSU to influence their care (or refusal to care) for a patient. The employer/employee relationship is ‘not relevant to the therapeutic relationship’ between paramedic and patient. The proposed withdrawal of services would appear to be an example of allowing ‘the personal views of a practitioner’ to ‘affect the care of a patient or client adversely’ (p. 8). If there is a conflict of interest (in this case between the wages demand and patient care) the paramedic’s obligation is to ‘resolve this conflict in the best interests of the patient or client’ (p. 18).
Good practice in emergency care ‘involves offering assistance in an emergency that takes account of … other options…’ (p. 9). If all NSW Ambulance paramedics refuse to attend category 2 cases that limits ‘other options’ for people who may be seriously ill or having what is for them, a crisis. Some people may be able to make other arrangements for care, but some will not.
The reason this industrial action may work is indeed because some callers will not get ambulance assistance. That may be an example of an ‘expression of personal beliefs to patients or clients in ways that exploit their vulnerability or that are likely to cause them distress’ (p. 18). It is there very vulnerability and/or distress that it is hoped will persuade the NSW government to make a more generous offer. The discomfort of the patients is a means to an end and exploiting their vulnerability is unethical.
On the other hand, the Code says ‘The focus of this code is on good practice and professional behaviour. It is not intended as a mechanism to address disputes between professional colleagues…’ (p. 6). Arguably if NSW Ambulance decided to make a complaint that a paramedic was guilty of ‘unsatisfactory professional conduct’ on the basis that participating in the IA was an example of ‘improper or unethical conduct relating to the practice or purported practice of the practitioner’s profession’, the relevant Panel or Tribunal may consider that it is being used to resolve an industrial dispute and this is not an appropriate use of the resources or the Code. The situation would not be so clear if a patient, or worse the family of a patient who dies, makes a similar complaint.
Another way to look at it is to ask what would anyone’s attitude be to a paramedic who refused to attend a priority 2 case in any other circumstances. I think it would be beyond question that such conduct would be considered reprehensible and a breach of trust between paramedics, patient’s and the community. That it is done as part of an industrial action makes no difference to the patient. Refusing to do things that an employer directs – eg failing to fill out billing information – may be employment misconduct but is protected by the strength of collective strength. But here the part of the community affected are the vulnerable. I see that in an interview on 2GB HSU NSW secretary Gerard Hayes was asked:
Jim Wilson: Are you worried this … will put lives at risk?
Gerard Hayes: We are.
Paramedics knowingly putting ‘lives at risk’ for their own interest must be acting contrary to the concepts of good paramedic practice.
I do think the situation would be different if the claim was, say, for more resources. If the argument was ‘paramedics are overworked and that is impacting upon their health and safety and the safety of patients; to address that we will only attend priority 1 cases because that way we can focus on those most in need. That will allow us to provide proper care, complete case reports etc for the benefit of the patient. And we’ll work to rule so we’ll take our meal breaks and go home on time’. If that were the case one could argue that is a patient centred decision – the aim is to improve patient care for the most serious and protect paramedics which also improves patient care. And that sort of industrial action delivers the result – if refusing to clear for a priority 2 job allows paramedics to provide proper care to a priority 1 patient or paramedic’s get their breaks and get home so they can perform better when they come back to work then patient and paramedic care is improved directly by the action. But the claim here is for a pay rise. The demands may be meritorious, but this action won’t deliver a pay rise in the same way insisting on meal breaks delivers a break; or insisting on going home on time increases your time at home. In those cases too, when asked ‘why didn’t you attend?’ a paramedic could honestly answer ‘because I was busy with another patient’ or ‘I had to go home because we need breaks to refresh to be able to come back tomorrow’. In Woods v Lowns and in Kent v Griffiths the Doctor and the London Ambulance Service respectively were liable when they failed to attend without good reason. The pay claims may be meritorious but I don’t think ‘we don’t get paid enough’ or ‘we want to bring pressure on the government’ would constitute sufficient good reason to refuse to attend to a particular patient.
It is my view that paramedics who refuse to attend cases, and in particular paramedics who do not attend a case when it is less than priority 1 but do when it is reassessed would face a very real risk. The patient, or the patient’s family – the equivalent of the family of Patrick Woods – would be well within their rights to make a complaint of unsatisfactory professional conduct and I would suggest may also want to bring a civil claim against those paramedics. Those proceedings may or may not succeed, everything depends on the particular facts, but it could make a paramedic’s life hell for the next few years.
The question I was asked was ‘Would this action potentially meet the threshold of a violation of the paramedic code of conduct?’ My view is that absolutely it ‘could’ meet that threshold. I would suggest that paramedics who refuse to attend priority 2 cases but are at work and ready to respond to priority 1 cases could be putting their registration and livelihood at risk. The fact that they are undertaking industrial action supported by the HSU does not change their obligations as paramedics to put their patient’s interests first.
None of this is to suggest for a moment that their grievances are not justified and that industrial action may be the only way to bring the NSW government to the table; but this industrial action will knowingly put lives at risk. And the lives at risk will not be abstract, theoretical lives, but at the time decision not to respond is made they will be known, identifiable people. Perhaps no-one will make a complaint, but it will only take one and one or two paramedics may find themselves in a world of pain.