Today’s correspondent asks about:

Section 140(a) of the National Practitioner Regulation National Law (WA) Act 2010 [which] defines notifiable conduct as a health practitioner who has

“Practised the practitioner’s profession while intoxicated by alcohol or drugs; or…”

I can’t seem to find a definition of when a practitioner has “practised their profession”.

1. If a paramedic arrives at work intoxicated and decides (or is told) to go home before they interact with a patient, have they “practised their profession”?
2. How about a paramedic who, while off duty having beers in the city, provides CPR to a stranger?

I have, albeit in a different context, written on what it means to practice one’s profession – see Eburn, M ‘Registered paramedics, insurance and first aid – looking for coherence in law’ (2019) 16 Australasian Journal of Paramedicine https://doi.org/10.33151/ajp.16.663. In that article I said (at p. 5):

The question of what it means to practise a profession has been discussed in case law. In Attia v Health Care Complaints Commission [2017] NSWSC 1066, Walton J said ([149]):

‘The word ‘practice’ … is not defined in the National Law. Nor is the phrase [‘the practice of the practitioner’s profession’] itself. There appeared to be common ground that the word and the phrase were attended by some ambiguity’.

In Legal Services Commissioner v Walter [2011] QSC 132 the Queensland Supreme Court had to determine whether the respondent had engaged in legal practise while not a registered Australian lawyer. Daubney J said ([15]):

‘More recently, in Cornall v Nagle [1995] 2 VR 188, J D Phillips J, in construing the Legal Profession Practice Act 1958 (Vic), identified that a person who was neither admitted to practise law nor enrolled as a barrister and solicitor may be regarded as acting or practising as a solicitor in one of three ways:

1. By doing something which, though not required to be done exclusively by a solicitor, is usually done by a solicitor and by doing it in such a way as to justify the reasonable inference that the person doing it is a solicitor;

2. By doing something that is positively proscribed by legislation or rules of court unless done by a duly qualified legal practitioner;

3. By doing something that, in order that the public may be adequately protected, is required to be done only by those who have the necessary training and expertise in the law.

            …

Applying Daubney J’s approach to paramedics one could conclude that a person is practising as a paramedic if he or she:

Is doing something which, though not required to be done exclusively by a paramedic, is usually done by a paramedic and by doing it in such a way as to justify the reasonable inference that the person doing it is a paramedic.

In that article I specifically argued that a paramedic who renders assistance to a person whilst off duty should not be regarded as practising their profession in order to avoid any issue should that paramedic not hold relevant professional indemnity insurance.  I said (at p. 6):

The author’s view is that providing emergency first aid where the paramedic is not doing so in an ongoing capacity and is not using equipment and technology (such as scheduled drugs) that are usually used by paramedics then they are not practising their profession.

Let me then turn to my correspondent’s questions. Remember that the principle aim of the Health Practitioner Regulation National Law is to protect consumers and the public.  With that in mind I would suggest that a paramedic who ‘arrives at work intoxicated and decides (or is told) to go home before they interact with a patient’ is ‘doing something’ (ie reporting to work) ‘in such a way as to justify the reasonable inference that the person doing it is a paramedic’ (given that he or she is at the paramedic’s place of work and presumably in uniform) and is therefore ‘practicing their profession’. They have arrived with at least an intention of going to work whilst intoxicated and they therefore pose a risk to potential patients – if not on this day then at some time in the future.  I don’t think, even given the ambiguity in the phrase, there would be difficulty concluding that this person was at the time they reported to work, ‘practising their profession’.

The second scenario is more difficult. As I have argued I don’t think the paramedic who ‘while off duty having beers in the city, provides CPR to a stranger’ should be regarded as practising their profession, but that is just an argument.  And the argument was necessary because

In a forum to discuss requirements for paramedic registration, a representative of the Paramedicine Board of Australia (the PBA) discussed the need for professional indemnity insurance (PII) for registered paramedics. In the course of the forum it was said (Paramedicine Board of Australia Melbourne Forum 23 July 2018 Available at: https://livestream.com/Goliveau/AHPRAMelb/videos/178039122, at 55’ 20”):

…the insurance coverage that’s applicable to jurisdictional services varies greatly … some jurisdictional services will cover their employees if they’re attending the scene of an accident on the weekend and they’re not working or where they’re doing volunteer sports trainer work with the local soccer club, other jurisdictional services won’t. What practitioners need to know is any time they’re using their skills and knowledge and experience as a paramedic … they have to be covered by PII…

When reporting on the forum, Paramedics Australasia (Facebook, 28 July 2018) wrote:

At last week’s Paramedicine Board of Australia forum, we once again received the advice that:

• Each individual practitioner needs to decide what level of insurance they require

• Employees may have vicarious liability cover through their employer or a third party, however there may still be unique circumstances which arise whereby an individual paramedic is required to represent themselves before a tribunal

• Two other examples where it may be practical to have additional PII … were: attending a scene of a road traffic accident whilst not on duty, or providing first aid as a spectator at a soccer match … any time where you are using your skills or knowledge as a paramedic, you must be covered by PII.

Attending a road accident or attending a sudden cardiac arrest produce the same legal issues and the Paramedicine Board are (or at least were, in 2018) of the view that this was practicing the paramedic’s profession.  I cannot agree and if it’s correct it’s a tragedy for the community as it discourages those most able to assist from stepping up.  The fact that a person is intoxicated may also take them outside good Samaritan protection when it is most needed – see Excluding good Samaritan protection for the intoxicated (March 17, 2016). In that post I said:

But why add s 5(2)(b) [of the Civil Law (Wrongs) Act 2002 (ACT)] when that would be when the Act is really needed.  Imagine an off duty paramedic out with a few mates and someone collapses or is injured right near them.  That is where you have someone with expert skills who, if stone cold sober, would step up and perhaps save a life (or at least give the person their best shot).   They would be protected by the good Samaritan law even though no such protection was required.  But now they’ve had a drink or two  – a perfectly lawful thing to do.  When you’re out drinking that is when you are likely to come across accidents and injuries but now that paramedic loses the good Samaritan protection but surely that is when we want him or her to step up and do their best and that is when they need protection.  They’re honestly trying to help but may not be performing at their normal level, but if ‘“Any Attempt at Resuscitation is Better Than No Attempt” (Australian Resuscitation Council http://resus.org.au/) they should be encouraged to act – ‘don’t worry we know you may not be performing at your best but anything you do is better than nothing and you won’t be held to the same professional standard as you would be if you were at work’.   As it is anyone who can help is actively discouraged from helping.  And let’s face it, we’d all rather die than risk being treated by someone who’s consumed alcohol or drugs!

Conclusion

It is my view that a ‘paramedic [who] arrives at work intoxicated and decides (or is told) to go home before they interact with a patient’ will at the time they reported for work, even at the time they put their uniform on and began the commute to work (hopefully by bus) has been ‘practising their profession’ and in order to protect the public should be reported and may be subject to control by the Paramedicine Board. 

It is also my view that a ‘a paramedic who, while off duty having beers in the city, provides CPR to a stranger’ is not practising their profession but that does not appear to be (or at least in 2018 did not appear to be) the view of the Paramedicine Board. If the Paramedicine Board view holds then that, taken with provisions such as the Civil Law (Wrongs) Act 2002 (ACT) s 5(2)(b) and the Civil Liability Act 2002 (NSW) s 58(2) creates unnecessary and deliberate legal rules to discourage paramedics from helping when, even if intoxicated, they may be best placed to give someone their best shot at survival – but apparently the law makers think ‘we’d all rather die than risk being treated by someone who’s consumed alcohol or drugs!’

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.