Today’s correspondent is ‘a registered paramedic with a private medical company’ who has been having:

… disagreements with a colleague around the question of ‘am I liable either professionally or personal if the company I work for assigns me to a shift that requires me to hold medication/drugs but I haven’t been provided any by the company to carry and should an issue arise such as an Injury, death or something else from me not carry said drugs?’

The typical lawyers answer is ‘it depends on what you mean by liabile’.

Money damages

Let us assume the Private Medical Company (the PMC) is in some form of business and people come to its staff looking for health care. The PMC has a contract with its client and a common law duty of care to its patients to provide reasonable care. The contract would include implied terms to provide professionally competent services and may have express terms about the level of service to be expected.  When a person goes to the PMC for care they are actually looking to the client for care.  Assume the patient is an employee and the PMC is operating the on-site medical centre. The employee is going to their ‘employers’ medical centre. They don’t care whether the staff are fellow workers or employed by a contractor or independent. Their employer is providing a health care service to their employees. The arrangement between the employer and the PMC is irrelevant to the employee.  If the employee receives sub-standard care because the paramedic on duty was not adequately equipped, the employee will look to their employer as it is the employer that failed to ensure that they employee received reasonable care. The employer could look to the PMC to meet those costs as the PMC failed to provide a reasonable level of care in breach of its contract.  So far, any liability ends with the PMC.

Assume a different event and different circumstances. The PMC is providing event health services and the paramedic has done a risk assessment and concluded they’ll need restricted drugs given the activity being covered. What did the paramedic do about that? Who did they tell? Did they follow the procedure to requisition the drugs?  If the scenario is that they are told that they need the drugs but when they get on scene they find they are not in the kit, what sort of check did they do before they left?  Who was responsible for packing the vehicle etc.  In any of those cases the patient expects the PMC to provide reasonable care. If it is failed to do so it will be liable. Even if the employee paramedic was negligent because they failed to check the kit, or failed to order the drugs, they were acting as part of the PMCs business and the PMC will be vicariously liable.

If by liability, we mean liable to pay money damages to the injured plaintiff then the answer is almost certainly ‘no’.  The doctrine of vicarious liability exists to ensure injured patients have someone to sue who can bear the cost by managing the risk and insuring against residual risk.

Professional liability

By professional liability I mean a risk of disciplinary action under the Health Practitioner Regulation National Law. Here the answer is ‘possibly’.  Using the Queensland version as my reference, s 5 defines ‘”unsatisfactory professional performance” as

… the knowledge, skill or judgment possessed, or care exercised by, the practitioner in the practice of the health profession in which the practitioner is registered is below the standard reasonably expected of a health practitioner of an equivalent level of training or experience.

“Unprofessional conduct” by a registered health practitioner, means ‘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…’

AHPRA’s Shared Code of Conduct, that has been adopted by the Paramedicine Board, requires a paramedic to ‘Put patients first [with] Safe, effective and collaborative practice’; ‘Minimising risk to patients …  – Good practice involves putting patient safety … first’.

There has to be some level of equipment that, without it, you would refuse to go to work.  For example, if the PMC promises to the client to provide a paramedic and an ambulance and you are equipped with a rusty ex-jurisdictional ambulance with an oxygen bottle with no regulator and a first aid kit from Repco, you would probably refuse the job as you would know your professional standing is at risk.  You cannot function as a ‘reasonable’ paramedic in that scenario; you are being set up to fail and patients will be denied whatever is the minimum standard of care they can expect. At some point as a professional you have to decide what is the minimum you will work with. 

Equally if the employer told you to provide treatment that was not evidence based and appropriate you would refuse. If the employer said ‘we’re not going to keep patient records’ or ‘don’t use an indicated drug if you can avoid it as it costs too much, use it only on the most extreme patients, the others can wait until they get to hospital’ even though you know this would give a poor outcome then you would have to refuse to comply. Your job is to give proper care to your patient.  Becoming complicit in the delivery of substandard care, care that is ‘below the standard reasonably expected of a health practitioner of an equivalent level of training or experience’ may mean you should be cautioned, or reprimanded or have conditions imposed on your practice.

The question then is what would peers do if assigned ‘to a shift that requires me to hold medication/drugs but I haven’t been provided any by the company to carry’?  Imagine the patient understands you should have had a particular drug available, you did not but if you had, and if you had used it, they would have had a better outcome. That may well warrant a complaint. And as the Board or AHPRA investigate they will ask ‘what did you do?’

• When you discovered that you had been assigned a ‘shift that requires me to hold medication/drugs but you haven’t been provided any by the company’ did you do what ‘might reasonably be expected of the health practitioner by the public or the practitioner’s professional peers’ in response to that in all the circumstances?
• What is the drug? What is the risk to patients of not having that drug available?
• If the drug wasn’t there did you raise the issue? With whom and how?
• Would your peers have continued with the shift or would they have said ‘this event or workplace has to shut down as we cannot provide reasonable cover’?

If it becomes a practice that you just ‘put up with’, if you don’t raise it, if patients are harmed, and if you don’t at some point say ‘if you are not going to give me the minimum kit I need to do my job, then I cannot work here because I cannot deliver good paramedic care’ then yes I can see that could be the subject of some action by the Paramedicine Board.

For a related post see Paramedic sent to work without a relevant drugs authority (May 8, 2022).

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.