This question, in various forms, is often asked – see all the posts at https://australianemergencylaw.com/?s=volunteer+scope+of+practice. Even so it’s worth revisiting for people new to the blog and because it is clearly a common and recurring issue. The question is:
A large percentage of SA Ambulance Service SAAS staff are volunteers (approx 47% of the workforce).
SAAS trains lay people who volunteer on their 90+ rural stations in 3 distinct volunteer Authority to practice/Credentialing levels – Ambulance Assist (non accredited training), Ambulance Responder (Certificate II) and Ambulance Officer (Certificate IV).
Many of these volunteers are Registered Health Care Professionals’ including Nurses and Paramedics. Registered Paramedics volunteering for SAAS are currently limited to practice at the Ambulance Officer (Certificate IV) credentialing level.
Considering their registration status with AHPRA, could a SAAS volunteer who is a Registered Paramedic:
1. Be held to a high level of care or knowledge compared to a lay trained non-registered volunteer should an investigation occur e.g. coronial;
2. If a patient or relative discovered the volunteer was a Registered Paramedic and limited by the employing organisation to practice at a lower level of scope (despite medications and equipment being available to them on shift), could the individual volunteer or the organisation be at risk of legal action? Example could a family take action if they discover after the fact, the volunteer present at their family members cardiac arrest was trained in advanced life support procedures as a Registered Paramedic but their scope of practice was limited by the Statutory service engaging them?
The simple answer to both questions is ‘yes’.
A paramedic is a paramedic. A paramedic who is volunteering with an agency like SAAS, or any other ambulance service or event first aid service, is volunteering in an area that is part of the traditional paramedic area of practice. It is not the same as volunteering to help prepare meals on wheels.
A registered paramedic is expected to deliver patient centred, evidence-based care (see Revised Code of Conduct that takes effect from 29 June 2022). Whatever one’s assigned status, as a paramedic you know what you know. If you are asked to treat a patient a person with a Certificate IV may form a view about the patient’s condition but a paramedic may know to ask more or different questions or may be able to form a more complete picture of the patient’s condition based on the history, signs and symptoms. One cannot deny that knowledge. Where a person with the Cert IV may reasonably say ‘I think you should go to hospital’ a paramedic may know that the advice should be ‘I think you go to hospital as a matter of urgency and we, not your family member should take you’. To pretend you don’t know that just because, today, the service pretends you only have a Cert IV would be both unprofessional and negligent.
As for question 2 imagine you are indeed the relevant family member. How would you feel if you found that the person treating your family member had the skills and knowledge to identify the patient’s condition, knew what the recommended treatment was, had the skills and knowledge to administer the treatment but failed to do so to comply with a direction from the agency rather than acting in your family member’s best interest? Personally, I would make a complaint that the paramedic had failed to deliver good patient centred care.
The definition of unprofessional conduct is “professional conduct that 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…’ What would the public, or paramedic peers, expect of a paramedic, on duty with an ambulance service and faced with a patient in cardiac arrest and who had “medications and equipment … available to them” but did not use them to benefit the patient? My guess is that paramedics would, and as a member of the public I would, expect them to use that equipment and medication particularly if they are part of an ambulance response.
It is important to remember that there is no fine line (at least in law) between what is first aid, or ambulance work or paramedic work. The Australian Health Practitioner Regulation National Law does not define a professions scope of practice. If you are a paramedic, and particularly if you are wearing an ambulance uniform and responding to ambulance calls (ie traditional paramedic work) then you have to provide patient centred care. Now there can be limits. If you don’t have the ‘medications and equipment’ that you would have if you were in an intensive care ambulance, then you cannot use them. If the patient’s condition is such that they will not be disadvantaged by a delay in waiting for the on-duty paramedic crew to attend, then it may be reasonable to hold off. But if it’s ‘life and death’ then a statement from the agency that you are only to pretend you have a Cert IV cannot be justification for not doing what you can within your skills and training.
Conclusion
Paramedics are registered health professionals. One of the advantages of that registration is that it can empower Paramedics to insist on providing appropriate care. It is no longer the case that an agency can say ‘you only practice at this level’ because the paramedics obligations are now owed to the profession and directly to their patient – not just or even to the agency for which they work or volunteer.
A paramedic or a nurse knows what they know and cannot deny that just because today they are volunteering in a ‘different’ capacity. Your duty is always to provide ‘reasonable’ care, but it cannot be reasonable to pretend to not know something. It can be reasonable to provide a lower level of care in the circumstances but only if there are good reasons for that decision. In my view telling a paramedic ‘pretend you are not a paramedic’ is not going to count as a ‘good reason’.
This blog is made possible with generous financial support from the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), Natural Hazards Research Australia, NSW Rural Fire Service Associationand the NSW SES Volunteers Association. I am responsible for the content in this post including any errors or omissions. Any opinions expressed are mine, and do not necessarily reflect the opinion or understanding of the donors.
Australian Emergency Law 
Thank you for clarification on this issue
Another question please
Say a cert1V first responder has also completed a certificate in Advanced life support and IV resuscitation and has the equipment available and it is needed to treat a casualty.
however, the employers Code of practice states only for paramedics to use this equipment and the nearest is 45 mins away should the first responder use his skills to save a life?
I’ll answer that question by putting two options. First you follow the employer’s Code of Practice to the letter and you let the patient die knowing that you have the knowledge, skills and equipment to save their life. The second option is you intervene and the patient survives with as good an outcome as can be expected.
If you take the first option you may be like the incident controller of the Strathclyde Fire and Rescue Service (see Fatal Accident Inquiry Under The Fatal Accidents And Sudden Deaths Inquiry (Scotland) Act 1976 Into The Death Of Allison Hume (16 November 2011) discussed in my post Don’t let the patient die (June 11, 2019)) – you may want to consider that the “… operation was “a success” [because you] … adhered to the policies and procedures set out by [your employer. You…] had obtempered to the letter [Code of Practice]… There had been no casualties other than the one to whom the Service was called upon to rescue.”
A coroner may however take a similar view to the Scottish Sheriff “Unfortunately this was not a successful operation: a woman died who had … survivable though life threatening injuries…”
But, at best, you keep your job. But now the family of the deceased decide to sue you and your employer. Has there been negligence? I think so. The patient came to the first responder looking for assistance for a medical emergency. They don’t know what skill set you have but you are at the event or work site being held out as the provider of emergency care. You owe a duty to your patient (Kent v Griffiths [2001] QB 36; Queensland v Masson [2020] HCA 28). Your duty is to provide reasonable care in all the circumstances taking into account your training and your experience as well as the terms of your employment and the service your employer is contracted to provide. When deciding if what you did, in withholding the care, the court will consider (Wyong Shire v Shirt [1980] HCA 12, [14] (Mason J)):
We’re assuming that you can see that if you don’t use ‘the equipment available and it is needed to treat a casualty’ then their will be fatal consequences for the patient. So what would a hypothetical reasonable person do? The magnitude of the risk is death; the probability of its occurrence given the paramedics are 45 minutes away is very high, perhaps 100% certain. There is no “expense, difficulty and inconvenience of taking alleviating action” given the equipment is available and you are trained and competent to use it. The conflicting responsibility is a responsibility to comply with the employer’s edict. In those states with relevant legislation (eg Civil Liability Act 2002 (NSW) s 5B) a court would also consider “(d) the social utility of the activity that creates the risk of harm.” The ‘activity that creates the risk of harm is the failure to give the treatment. What is the social value of that? None I would suggest where the social value of saving a life is immense.
If that analysis is correct then we have a situation where the first aider who fails to provide their best care to a person who has come to them for care even though he or she is qualified to give, and who has the necessary tools to give it. They do not give it even though they know, and the employer should know, that failure to give the care will be fatal. And they withhold the care because:
• an employer has written a Code on the assumption that the person has a Cert IV only and the training for this procedure or equipment is not in the Cert IV syllabus;
• the employer does not have a process to consider, evaluate and endorse a person who has further training and
• the employer sent the first aider out with equipment but with a warning – like God to Adam and Eve and the apple – “don’t touch that”.
In those circumstances I would certainly predict that an action in negligence against the employer would succeed. And I say the ‘employer’ as they will be vicariously liable for any alleged negligence by you as well as directly liable for their own negligence in failing to have a system to recognise learning and for sending you out with the equipment but also with an edict not to use it.
And what if you have a go and it doesn’t work? If the patient was going to die anyway you have not made the situation worse. And a reasonable person when faced with a life or death emergency will probably do whatever they can to try and avoid death; they may, reasonably, say “I am not actually skilled in this procedure but it’s this or they die, so I’ll give it a go” – see Performing an Emergency tracheotomy (or life mimics art? (March 11, 2018). If the patient is going to die, trying a desperate measure will not make the situation worse.
The alternative is to deliver the treatment and save the patient’s life. Who is going to complain about that? Not the patient; they may even write a letter of thanks to your employer. The worst that might happen is you may lose your job but if your employer would rather see a patient die do you really want to work for them? If they did attempt to sack you, you may have a remedy for unfair dismissal, but I appreciate that achieving that is long, complex and generally unsatisfactory.
All of this depends on you getting the facts right. That you have correctly diagnosed the situation, that the treatment was warranted etc. But you have to, at some point, back yourself. If you’re not confident, if you don’t know what to do, then that really is a very different matter but that is not the assumption of the question.
Conclusion
Given they are the two options – what would you do? If we really are talking about a situation of “This person has come to me for care; I’m here to provide care; if I don’t do x then I know this patient will die; my employer employs people with a Cert IV and has written the practice procedures for those people but I have further qualifications; I know how to do x, I have the equipment at hand to do x; it’s do x and they may live, don’t do it and they die” then I cannot see any legal reason not to do ‘x’. And if your employer wants to sack you do you really want to work for an employer that provides emergency health care but would prefer to see their patient’s die?
This comment came by private message:
If the paramedic was not between a ‘rock and hard place’, then the question would be trivial. An employer may try to discipline an employee who steps outside the printed guideline even if that saves the patient and saves the employer a negligence claim. As I said, any dismissal may be ‘harsh, unjust or unreasonable’ (Fair Work Act 2009 (Cth) s 385) but having that remedy is not really very helpful, and do you want to work for that employer in any event. But that is of course the dilemma, we all need our job – if that is your employer’s attitude you have to consider what is the employer going to do to me versus what is the Paramedicine Board, and a common law court going to do. You might think ‘fine I’ll stick to the employer’s rules, the employer will be liable not me so the cost to me is less’ but is that professional practice? There is no easy answer here, but at least for paramedics, registration should encourage them to think about what is good paramedic practice first and foremost and better enable them to defend their decisions.