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.
It has become common practice for low priority jobs to be assigned to a crew and then taken off the crew when the dispatcher realises (or is informed by the crew) the crew is due a meal break. Sometimes this job is held for the crew to finish their meal break and then the crew is put back on the case. Could these instances also lead to liability for paramedics if it turns out the patient was more ill than thought and suffers harm due to the delay?
Could it not be said in this instance the crew is “at work and ready to respond to priority 1 cases” but agrees with dispatch to delay attending a lower priority case.
No I don’t think so. First it is being done as part of the management of the service. There is a difference between allocating priorities and refusing to go. Certainly if there was a triaging error or some other error then it would be the ambulance service that would wear it as that is their system. But this is individual paramedics (albeit acting collectively) refusing to go when there aren’t those other, conflicting, obligations and entitlements. My argument is not that paramedics have to go to every job the minute it is sent to them. There are priorities and time frames and conflicting duties. But in this action we are told they will refuse to attend – even when nothing else is stopping them. That I think makes all the difference.
While I support the workers rights to take industrial action and I agree that this would expose them to questionable conduct, is there also the possibility of prosecution by failing in their duty as a worker under section 28 of the NSW Work Health and Safety Act, to comply with reasonable instructions etc. given by their employer, business or controller of the workplace?
It could be argued that the PCBU in this case the service, or govt, have fulfilled their duty bu taking the call, triaging it and Des patching an ambulance with crew. The crew not accepting the task would be failing in their duty as a worker would they not?
That could be arguable save that dispatching them is not really a WHS duty or policy. But there is a duty on employees to obey the reasonable and lawful directions of their employer and it may be a breach of that. Of course all industrial action (other than ‘work to rule’) is a breach but is protected by the collective nature of the action and in relevant circumstances by the Fair Work Act and protected industrial action; but I don’t think (without going into detail) this is protected IA. The real fear is that if is deliberate misconduct it could take the paramedics beyond the scope of vicarious liability. The ambulance service gets the call, they allocate the job to a crew, the crew refuse to go – that is not negligent (an inadvertent failure to properly do one’s job) it’s a deliberate choice to not respond. Based on the decision in Woods v Lowns there would be an argument that the paramedics are personally liable. I don’t think a judge would want to go down that path as the point of civil actions is to pay compensation so there has to be a defendant who can pay. I understand however that the HSU provide professional indemnity insurance as part of the union membership. A judge may be willing to find the paramedics liable if the HSU are going to pay the damages. I didn’t discuss this in the post as it involves far too much speculation, but it’s the thinking behind the conclusion that it could make the paramedic’s life hell. Imagine a complaint is made and someone sues the ambulance service; and the ambulance services tries to join the paramedic so the next fews years involves the NSW Managed Fund and the HSU insurer arguing over who is going to pay whilst the paramedic has to defend disciplinary actions?
HSU NSW Paramedics are not actually asking for a “Pay Rise”
We are locked into a NSW Govt wage agreement of 2.5% per year (which does not even keep up with inflation)
The NSW Govt stopped this last year and have only offered a very small fraction of that this year. New South Wales ambulance paramedics are only asking for what they are entitled to & a chance to talk about a professional wage claim which has not been presented in detail.
They are also asking for the total Salary Packaging fringe benefit remuneration which they are also entitled to. This is not a pay rise despite still being the lowest paid paramedics in the country.
What they are asking is only what they are entitled to and not unreasonable or a pay rise. The New South Wales government should honour their agreement in full and stop delaying this process that has caused this industrial action
They are the details but it doesn’t change my conclusions.
The NSW GOVT have had ample time to pay the Paramedic entitlements and stop this industrial action. It will be the NSW GOVT that will be held accountable for any adverse patient outcome over this action.
Paul to some extent that’s true but accountability isn’t all nothing. It is my view that there is a real professional risk to paramedics and the merits of the claims don’t change that
HSU Paramedics Have the full backing of the union. The union are the body that will incur fines or legal action not the individual Paramedic. In any case it will be up to that paramedic to determine whether to respond, upgrade a case based on the information, or choose to uphold the industrial action.
Paul, well that’s the point of my post. It is my view that individual paramedics will indeed be at risk of legal action – in particular a they will be at risk of having defend claims of unsatisfactory professional conduct and possibly even civil claims for damages. Your claim ‘the union are the body that will incur … legal action’ if by that you mean professional sanction that is not the law nor is it possible. If a patient makes a complaint about a paramedic’s conduct it is the paramedic that will have to defend that. The HSU may meet the legal costs, but the consequence can only be borne by the paramedic. The HSU could agree to indemnify participating paramedics from liability and could agree to meet legal costs, but the consequences of any disciplinary action can only be borne by the individual paramedics. The HSU cannot be ‘struck off’ or have conditions imposes on their registration. The HSU cannot take the paramedic’s place before a disciplinary tribunal or panel.
The HSU may incur fines under industrial laws but that is not the subject of this blog post.
Thank you for your advice, hopefully it doesn’t come to that
Paramedics who are an a case cannot be allocated another case until they clear the initial one. Would Paramedics not clearing a previous case afford some protection as they cannot be allocated whilst still engaged with the previous case?
not if it can be shown that their failure to clear was dishonest
Paul, it would be worthwhile clarifying on what basis you’re making these statements.
These are matters of potentially significant personal liability for individual Registered Paramedics.
It would be improper, dangerous and unprofessional for any industrial body to wilfully mislead it’s members in matters of such personal significance and consequence.
Do you speak for the union, are you expressing a personal view, or are you expressing a professional opinion?
My question’s are from this BLOG in general.
To my knowledge there is no precedent that relates to this action by HSU paramedics.
The precedent that was mentioned in this blog relates to a case that would be attended by HSU paramedics.
Can the author explain his intentions for posting this blog ?
It is my understanding that the author was a past ICP paramedic from the ACT & may be affiliated with APA (Australian Paramedics Association) is this correct ?
APA oppose this action by HSU Paramedics but it’s members will benefit from any professional wage agreement fought for by this action.
APA Paramedics are currently withholding KPI’s in opposition to the state government.
Let it also be noted that ACT Paramedics are currently on $10 per hour more that NSW Paramedics.
The Treasury met with HSU Paramedics yesterday & unfortunately chose not to grant the basic claims during the wage freeze imposed on ALL NSW Paramedics.
The fight continues !!!
No there is no precedent that directly relates to the HSU action. Forming a legal opinion does not depend on finding a precedent that is exactly the same, but on drawing analogies. It is the principles that establish liability, not the specific facts that are important.
i don’t understand why there is any doubt about my intentions. Surely over 10 years of blogging my intention is clear. If it’s not see https://emergencylaw.wordpress.com/about-2/. No I was not an ICP paramedic nor have I worked for ACTAS. Again see https://emergencylaw.wordpress.com/about-2/.
To reiterate I am not making any argument about the merits of the claims. That was not the question I was asked. The question I was asked was do I think taking part in the action may constitute action that could lead to professional disciplinary action. I answered that question applying legal reasoning. My intention in posting the blog was to give my answer to the question I was asked. If you think my answer is wrong, address the legal issues not the merits of the claims.
Let it also be noted.. HSU Paramedics have implemented many safeguards so no Patient will suffer during this industrial action
And if that’s the case the issues I raised won’t arise.
The HSU have been less than honest with their paramedic members about the individual, professional implications for an individual clinician in the event of an adverse patient outcome. The HSU might be fined for the industrial action, but the interest of the professional registration board in code of conduct breaches, the interest of a coroner if someone dies and the potential for civil action from a patient or family are all relevant considerations for the paramedics choosing to participate in consciosuly not responding to patients.
I guess with a history of fat cat union officials defrauding their members, it should be of little surprise that the HSU are willing to use patients as bargaining chips in a high stakes poker game with the government of the day. Lets hope thier members dont suffer the real consequences down the track.
For the record, I support freedom of association, collective bargaining and paramedics getting a pay rise. However, this unconscionable conduct of the NSW HSU sets a new low and demonstrates why blue collar unions have no place representing health professionals.
I received this comment via Facebook messenger:
So, again, NSW Ambulance Service Paramedics will ‘go on strike’ tomorrow 22 June. Effectively, they will be responding (again) to ‘Life Threatening Conditions’ only. We can presume that this will be done by the Ambulance Service Control Centre staff, triaging calls based on information supplied.
Previous discussion has surrounded the possible effects of these actions upon the now professionally registered paramedic. This time I’d like to explore, any implications upon a) patients / casualties, and b) transport service providers (i.e. taxi, hire car, uber /ride share).
Firstly, anyone who becomes ill or injured – it is not under ‘Life Threatening’ or ‘Time Critical’ circumstances, may not be able to access Government Ambulance care / response.
So, where does this leave a casualty, who, in this instance, may not have access to private personal transport? They may be able to access public or hired transport. Whether taxi, public or private bus, an Uber or similar ride share company, or a hire car. Regardless of whether if not the government ambulance service is under industrial action (restriction of service delivery) or not, any person wishing to attend a hospital for medical care, in my understanding, may be taken to hospital by any means at their disposal. And I contend, that such a person is not required by Law or Regulation, to seek transport by the state government funded and operated ambulance service.
Enter the private sector paramedic, and the private sector paramedic service provider. These organisations (for-profit, or not-for-profit etc), that employ paramedics and ambulance attendants (or similar), operate under a variety of legislation and or regulation, and, as such, would ordinarily be required to meet certain standards in equipment, personnel, and training etc. These organisations, however, are not (to my knowledge) able to be engaged by the public, to attend a non-life threatening case, and, after management, provide that member of the public, to an appropriate medical facility. My understanding is that’s an ‘Emergency’ transport, which in NSW, by law, is only to be conducted by the NSW Ambulance Service. Which, in this instance of industrial action by its own personnel, is now limiting its services, to those in need. Those people can only ask family/friends to transport them to medical care, or pay for a professional driver (taxi/hire car etc) in both cases with little to no medical knowledge
What happens, should a person be declined service from the only legal service provider, and that person, due to delayed professional care, upon arrival at a medical facility, either deteriorated or due to the delay or even less appropriate selection of medical facility (eg GP rather than hospital) their injury or illness develops to be more complicated in its case and subsequent management, or care, and extends recovery?
An ambulance service owes a duty of care to its patients (Kent v Griffiths). A key issue in that case was that the patient was told an ambulance was on its way, when it was not. Drawing a parallel a key issue will be what are callers told when they ring? If they are advised that due to industrial action an ambulance is not available but to call back of their condition gets worse but otherwise make their own way to hospital then that is telling them the truth. The question is always what is a reasonable response in all the circumstances and the circumstances include that NSW Ambulance can only respond with the resources it has which includes employees who are taking industrial action but a reasonable ambulance service with notice of that action would no doubt put in place some alternative even if that is a script to advise calleers.
It should be noted that in NSW there is a prohibition on providing ambulance services, not just emergency ambulance services, without the permission of the Secretary of Health. NSW Health has issued standards for NEPT providers but it’s not legislated. There is nothing to stop NSW Health contracting with NEPT providers to provide services where NSW Ambulance paramedics are on strike.
Putting that aside in simple terms the NSWAS does have a duty to reasonably respond to callers and that of course is why this industrial action is expected to have an impact upon NSWAS.