Today’s question comes from
…a registered paramedic on a mine site. due to an administration error our authority to administer scheduled medications has lapsed but our poisons permit is current. ie we can order drugs but currently can’t administer anything other than appendix C of the Poisons and Therapeutic Goods Regulation 2008. My question is in relation to liability. Where does liability sit for an adverse patient outcome when unable to perform my job with the tools I am trained to use at the level I am trained to use them?
The reference to ‘appendix C of the Poisons and Therapeutic Goods Regulation 2008’ tells me that my correspondent is in NSW. Appendix C lists ‘Persons authorised to possess and use substances’. There is no specific authority granted to paramedics (though there is authority for ‘ambulance officers’ employed by NSW Ambulance). My correspondent works on a mine site. Paragraph 11 of Appendix C says:
A person who is trained and authorised to administer first aid at a mine … is authorised to possess and use methoxyflurane and nitrous oxide if required for use in connection with the carrying out of first aid at a mine.
I assume my correspondent also has the relevant training to use salbutamol ([12], Asthma First Aid) and adrenaline ([13] Anaphylaxis First Aid) though nothing turns on that to answer the question.
I’ll rephrase the question to get to the nub of the issue. As I see it the question is:
if, because of my employer’s administrative error, I’m sent to work without access to drugs that form part of my normal tools of trade, who is liable? My employer or me?
The answer is ‘your employer’. That is for a number of reasons.
First, where talking about a mine site. I assume that everyone on the mine site is an employee. They may not be an employee of the mine but if they are there for work, they are employed by the mine or a mine contractor. If they get injured in the course of their work their employer is liable to pay workers compensation (Workers Compensation Act 1987 (NSW) and Workplace Injury Management and Workers Compensation Act 1998 (NSW)). The compensable injury includes all aspects of that injury so if the injury is made worse because relevant paramedic care was delayed then that is all part of the injury and compensation is paid for the whole injury.
Second, if the injured person wanted to sue in negligence, they need to find a duty holder. The paramedic (my correspondent) clearly owes a duty of care to the patient (Kent v Griffiths [2001] QB 36; Queensland v Masson [2020] HCA 28) but the duty is to act reasonably in all the circumstances. Those circumstances include not having access to whatever drugs we are talking about. If you do the best you can with the resources you have, you have provided ‘reasonable care’.
The employer also owes a duty of care to their employees. That includes a duty to have appropriate first aid and emergency procedures (Work Health and Safety Regulations 2011 (NSW) rr 42 and 42; Work Health and Safety (Mines and Petroleum Sites) Regulation 2014 (NSW) Sch 7). If a risk assessment indicates that the appropriate response is to employ a paramedic and provide that paramedic with relevant drugs. A failure to have systems in place to ensure relevant permits and authorities are maintained would suggest a failure by the employer reasonably manage the business and so put staff members at risk. In other words, the fact that the employer allowed the permit to lapse so that the staff could not do the job they were employed to do would be evidence of negligence by the employer.
Finally, if the paramedic is an employee, then the employer will be vicariously liable for any negligence.
The paramedic/employee also has duties to the employer as well as professional obligations to provide good paramedic care. Good paramedic care is also restricted to the circumstances – it is not the best care that a patient could possibly get – it is the best evidence based, patient centred care that the paramedic can deliver in all the circumstances. However, to ensure that the paramedic was seen to be delivering that care it would be prudent to bring to the employer’s attention that the permit had lapsed; that in the circumstances the paramedic cannot possess, supply or administer whatever drugs are involved and warn the employer of the potential clinical consequences – eg a list of drugs they can no longer access and why they are important.
Conclusion
If
- a person at a mine site can demonstrate their injury was made worse, or their recovery was delayed, due to the fact that the on-site paramedic did not have a drug that they would normally have; and
- that failure was due to an administrative error that caused the employer’s authority under the Poisons and Therapeutic Goods Act 1966 (NSW) to lapse; then
- any legal liability would fall on the employer.
Any professional liability of course belongs to the paramedic but if the paramedic can show that the issue, and why it is important, has been brought to the attention of the employer or a relevant senior employee or officer of the employer (eg the paramedics immediate line supervisor, the site manager, the general manager, the CEO) then the paramedic can show that he or she has acted to advocate on behalf of future patients and done what they can do to rectify the issue.
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 Association and 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 
Michael,
If in the above circumstance the paramedic administered a medicine that they are trained, are confident and competent to give and the situation was a life-threatening one (as an extreme example) – even if the poisons permit or other relevant documentation was not valid or included the said paramedic – in retrospect a coroner (and I’m about to quasi quote one of your older posts – and ALS paramedic working as a volunteer with SJAWA) would not accept a company’s procedures and policies for a paramedic withoholding lifesaving interventions…
So my question is, at what law or act is the most supreme in this situation? What would happen to a paramedic who knowingly broke the poisons act (I’m writing from WA) to save the life of a person and it was in good faith, reasonable, necessary and proportionate to the circumstances…
Thanks in advance for your assistance and time in replying.
My view is that no-one would criticize the paramedic for acting to save the patient’s life, even if the action was a technical breach of the poison’s laws. To give another example, it’s an offence for me to buy and carry a gun; but if I’m getting attacked and I fear my life is in danger it’s not illegal for me to use the gun in self-defence.
Stephen’s Digest of the Criminal Law (1st ed, 1887) said: “An act which would otherwise be a crime may in some cases be excused if the person accused can show that it was done only in order to avoid consequences which could not otherwise be avoided, and which, if they had followed, would have inflicted upon him or upon others whom he was bound to protect inevitable and irreparable evil, that no more was done than was reasonably necessary for that purpose, and that the evil inflicted by it was not disproportionate to the evil avoided. The extent of this principle is unascertained.”
In R v Davidson [1969] VR 667 Menhennit J said “The principle of necessity as stated by Stephen contains within it the two elements of necessity and proportion’. The accused has to believe, upon reasonable grounds, that it is necessary to take the action and that the harm done is not disproportionate to the harm to be avoided.”
In Re A (Conjoined Twins) [2000] EWCA Civ 254, Brooke LJ’s said “According to Sir James Stephen, there are three necessary requirements for the application of the doctrine of necessity: (i) the act is needed to avoid inevitable and irreparable evil; (ii) no more should be done than is reasonably necessary for the purpose to be achieved;(iii) the evil inflicted must not be disproportionate to the evil avoided.”
If there’s no relevant permit the drugs shouldn’t be there or at least the paramedic shouldn’t have access to them but if they are then saving the patient’s life is going to trump compliance with the Act given where you say the action is ‘in good faith, reasonable, necessary, and proportionate to the circumstances…’ That will be even clearer if the breach is only due to an administrative error to renew a permit and there is no question that the relevant authority would have been granted if someone had filled in the form and paid the money on time.