In early April 2023 it was reported that NSW Ambulance had entered a plea of guilty to an alleged breach of the Work Health and Safety Act 2011 (NSW) following the suicide of a paramedic – see:

In Mr Thomson’s report we are told ‘Judge Wendy Strathdee reserved her judgment on the penalty to a future date…’ Her honour has now delivered judgment in the matter of SafeWork NSW v Crown in the Right of New South Wales in respect of the Ambulance Service of NSW [2023] NSWDC 134 (2 May 2023).

The outcome

The outcome is that the Ambulance Service was fined $187,500 of which 50% ($93,750) is to be paid to SafeWork NSW and the other 50% will go to the state’s consolidated revenue. The Ambulance Service was also ordered to pay the prosecutors costs.

The reasons

The case arose after the discovery on 9 April 2018 that vials of Fentanyl at the Belmont Ambulance station had been tampered with ([19]).  This led to internal investigations that revealed a total of 44 vials had been tampered with across the Hunter Zone and New England Zone [33].  The matter was referred to SafeWork NSW on 11 April 2018.

Following the SafeWork investigation, the Ambulance Service was charged over its failure to comply with its own policies with respect to the safe handling and audit of restricted (schedule 8) drugs ([86]-[91]).

The breaches exposed paramedics, and others, to a risk to their health and safety as it allowed paramedics to misappropriate drugs for their own use and that in turn could impair their ability to provide clinical care to patients and to safely drive an ambulance ([97]).  To be guilty of an offence under the WHS Act it is not sufficient to show that there was a risk to health and safety. It must also be shown that there were steps that could and should have been reasonably taken to mitigate the risk.  SafeWork NSW (at [99]) alleged that the Ambulance Service

… failed to take one or more of the following measures, each of which is alleged to have been reasonably practicable, to eliminate or, alternatively minimise, if it was not reasonably practicable to eliminate, the Risk:

(a) Ensuring that whenever a paramedic was working as part of a dual crew, the removal from the safe, return to the safe, and the disposal of Restricted Medications was witnessed by another paramedic and the witnessing recorded on the Restricted Medications Register;

(b) Conducting unannounced independent station audits to assess compliance with Restricted Medications policies (including policies relating to storage; maintenance of registers (including witness signatures), stock checks and integrity checks) to be conducted by an independent clinician and implementing an escalation process for corrective action;

(c) Conducting regular audits of patterns of use of Restricted Medications as recorded in the eMR by paramedics to create trend reports so as to identify any atypical use which may suggest possible misappropriation and implementing an a policy to respond to and identified atypical use including by requiring notification to and consultation with the immediate supervisors of any paramedic identified as involved in such atypical use;

(d) Creating regular trend reports on reported incidents involving Restricted Medications in the NSW Health Incident Information Management System to identify potential risks associated with the use of such Medication and reviewing these trend reports to identify potential misappropriation;

(e) Providing every managerial staff member with line management duty for paramedics, specific training as to the contents of the MMOP [ASNSW Medications Management Operating Procedure PRO2016 dated 12 January 2017] and MMPD [ASNSW Medication Management Policy Directive PD2016-018 dated 12 January 2017].’

The charge against the Ambulance Service was laid under s 33 of the WHS Act.  That section says:

A person commits a Category 3 offence if—

(a) the person has a health and safety duty, and

(b) the person fails to comply with that duty.

More serious offences under ss 31 and 32 require proof that the defendant’s conduct ‘exposes an individual to a risk of death or serious injury or illness’.  That was not the allegation here (see [104]).

At [105]-[110] Her Honour set out the difficulties facing the defendant. She said:

The offending in the present case is in a unique category. The risk is a risk of misappropriation for consumption of restricted medications. Such misappropriation and consumption is a crime: Poisons and Therapeutic Goods Act 1996 (NSW); Drug (Misuse and Trafficking) Act 1985 (NSW). The reasonable practicability of any measures to address this risk must therefore be analysed in a context where the fact of criminal sanction (and consequential permanent loss of employment as a paramedic) has been an insufficient deterrent for the worker’s behaviour.

Accordingly, the measures in this case are not to prevent an employee suffering injury as a result of the employee’s own negligence, inadvertence or carelessness, but rather taking precautions to prevent a worker’s intentional criminal conduct. Such conduct is committed by trained paramedical professionals who understand the dangers associated with the misuse of restricted medications including Fentynal [sic].

Because it involves intentional criminal conduct, the risk is also one that has to be managed in circumstances where the worker can be expected to be taking care to conceal such offending from their employer, often using sophisticated means to do so.

To some extent, one wonders what else the defendant could do? During the breach period the defendant had in place extensive steps, programs and policies designed to ensure that the Restricted Medications were not used illicitly. The breach of the WHS Act can be summarised here, in my view, as a failure to take adequate steps to prevent knowingly unlawful conduct.

The defendant also confronts a difficulty in that the risk cannot be eliminated. To the contrary, it is imperative that the workers in this case (trained medical professionals with professional obligations) need to have ready access to restricted medications, including Fentynal [sic], for the purpose of discharging their important public safety functions. Any measure aimed to reduce a risk to a worker cannot come at a cost of an increased risk to a patient or the community.

I accept that the context of the present offending therefore, can be readily distinguished, for example, from the types of measures that might be considered to be reasonably practicable to prevent a construction or manufacturing worker from wilfully or carelessly misusing a piece of equipment on the one hand, and from preventing a medical professional from having ready access to lifesaving medical equipment on the other.

In short it is impossible to eliminate the risk of misuse where it is important that paramedics have access to restricted drugs ([116]). But (at [124]) the risk of substance abuse by paramedics was known and had been the subject of reports and in particular a report by the Victorian Independent Broad-Based Anti-Corruption Commission (the ‘Operation Tone Report’). The Ambulance Service had in place relevant ‘policies, directives and operating procedures’ with respect to the management of s 8 drugs but it did not sufficiently take steps to ensure that these were complied with.

Her Honour found that the offending was ‘objectively serious’.  It was not inadvertence or sudden mistake. ‘The seriousness of the foreseeable harm to a worker was known. However as conceded by the prosecutor, ASNSW had measures in place to mitigate the risk, prior to the breach period’ ([128]).

The penalty did not need to have the same strong general deterrence effect (ie a warning to others not to commit the same offence) as other WHS prosecutions because of the unique position of the Ambulance Service. At [137] Her Honour said ‘The breach that the ASNSW has entered a plea of guilty to is of such a unique failure and involves only one employer to whom the message needs to be enforced, cannot be compared to the message that needs to create general deterrence to a group of employers such as the building industry.’

As for specific deterrence, ie the need to deter the ASNSW from further offending, Her Honour said (at [140]):

… I find that the need for specific deterrence is reduced by the fact that the ASNSW has no prior criminal history and by the extensive ameliorative measures that have been taken to date. Such steps also give me confidence that the ASNSW has very good prospects of rehabilitation.

Having taken all those factors into account Her Honour determined (at [146]) the appropriate penalty was a fine of $250,000 (being ½ of the maximum available fine) further discounted by 25% to reflect the ASNSW guilty plea (Crimes (Sentencing Procedure) Act 1989 (NSW) s 25D).


In the judgment it is noted that Paramedic Tony Jenkins was suspected of misusing Fentanyl  and he made admissions to that effect ([31]).  The media reports, but not the judgement, tell us that after the meeting Paramedic Jenkins took his own life.  The Sydney Morning Herald Reports, inter alia that

Easter Sunday marks five years since Tony Jenkins was pulled into a meeting with NSW Ambulance and accused of misusing the highly potent synthetic opioid Fentanyl . He was allowed to leave the meeting alone, hours before his shift was supposed to end, and died by suicide a short time later.

On Tuesday, NSW Ambulance pleaded guilty in Sydney District Court to a criminal breach of section 19 of the Work Health and Safety Act, admitting it had failed in its duty of care to the paramedic of 28 years by failing to properly oversee the handling of restricted drugs, including Fentanyl .

And later:

Jenkins’ nephew Shayne Connell, who is also the chief executive of suicide prevention organisation LivingWorks, told the Herald on Tuesday it was “pretty significant” that a NSW government agency had pleaded guilty in a court case.

“Tony asked for help the day that he died. He was clearly in need of support … and that help wasn’t forthcoming,” he said.

Readers of this blog may be surprised to realise that the judgement did not discuss Paramedic Jenkin’s suicide at all. The allegation was not that the Service caused or contributed to Mr Jenkin’s decision to take his own life or that the ASNSW failed to provide adequate support to paramedics who were so affected by their employment that they had developed a drug habit. There was no discussion about the conduct of the meeting with Mr Jenkins on 9 April 2018 or whether he should have been allowed to leave on his own.  These matters were not part of the allegations against the ASNSW.

The allegations were that ASNSW failed to properly implement its own policies to identify whether drugs were being misused and by whom.  This created a risk not just to paramedic Jenkins but to all staff and their patients.  The ASNSW was not prosecuted because of a specific risk to, or the suicide of, Mr Jenkins.

As her honour noted the allegation under s 33 of the WHS does not require proof of ‘a risk of death or serious injury or illness’ and to make any finding to that effect would have been an error on her part ([104]) as she could not sentence the defendant for matters that were not part of the allegation against them (relying on the decision in The Queen v De Simoni (1981) 147 CLR 383).  The fact of Mr Jenkin’s death, and how Mr Jenkins was dealt with after he made admissions of drug use, were not relevant in these proceedings. In short this was not a case ‘relating to the suicide of an employee’, it was a case relating to the management of restricted drugs in the workplace where it was necessary to allow staff to access those very drugs in order to perform their duties.


The ASNSW has entered a plea of guilty to allegations relating to the management of restricted drugs.  It was not charged with any alleged failure to properly support Paramedic Jenkins who later took his own life. The issue was not the risk to him but to all paramedics and their patients. The effect of the fine is that a sum is taken from the ASNSW budget, half is given to fund another NSW department – SafeWork NSW – and the other half is returned to the government which can use it to fund government services, such as the Ambulance Service.

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.