I’m catching up on some posts that have taken too long to get to, and I apologise for that. The first comes from a correspondent who asks about the link cross-over between a paramedic’s professional indemnity insurance and an employer’s vicarious liability. Their question:

… comes after a recent “clinical update” from a jurisdictional ambulance service (JAS) to all staff, which reads as the following: 

Authority to practice reminder
What you need to know: Authority to practice independently is set out as per the Clinical Practice Guidelines – Clinical Resources website/app. *Employer* provides professional indemnity insurance (PII) in relation to the provision of clinical care; this cover is based on the requirement that clinicians providing care act reasonably and in accordance/intent of the clinical practice guidelines as per their relevant scope of practice. 

My question is related to the issue of Professional Indemnity Insurance (PII) and vicarious liability – and if they are separate in the case of registration requirements.  

Many of us working for a JAS rely on the PII from our employer to fulfil the requirements of our responsibilities under registration. From my understanding of Vicarious Liability, an employer cannot just “wash their hands” of a clinician solely because they stepped outside their assigned “authority to practice”. However, if the employer states that their PII will not cover such acts, does that become a separate issue regarding registration responsibilities? 

To illustrate my question, suppose a paramedic has recently completed training on a procedure (let’s say needle thoracocentesis in a tension pneumothorax), has been signed off by the training provider and believes they are competent. They now have a patient in front of them they believe requires this skill immediately to prevent harm (death). No one else can perform the skill in a reasonable amount of time and the equipment is available to the paramedic. However, it is outside of their JAS assigned “Scope of Practice”. Surely, they would be professionally and morally bound to act to help the patient.

My questions then are: 

  • Am I correct in assuming that the JAS cannot avoid all liability by claiming any harm results from a clinician (who is acting in good faith) steps outside their allocated “Scope of Practice”?
  • And in the above hypothetical situation, would the paramedic be breaching their PII requirements if the JAS has stated they will not cover this (even if they would be vicariously liable) and the paramedic has no other PII arrangements outside of this? 

The Professional indemnity insurance arrangements registration standard (17 May 2018) says (relevantly):

(1) When you practise as a paramedic, you must be covered by your own or third-party PII arrangements that meet this standard:

(a) for all aspects of your practice …

(2) Your PII cover must include:

(a) civil liability cover

(b) appropriate retroactive cover for otherwise uncovered matters arising from prior practice, and

(c) automatic reinstatement, or an equivalent approach which ensures that the amount of cover will not be exhausted by a single claim.

and

6.    If your PII cover is provided by your employer, and you intend to practise outside your stated employment, you must have individual PII arrangements in place to cover that practice. …

It’s interesting that the JAS says they provide ‘professional indemnity insurance’.  As suggested by my correspondent the employer is vicariously liable for any negligence by an employee. The employer’s insurance will cover civil liability cover and cover for whenever the paramedic was employed by them. If they are a government ambulance service, they will be covered by the governments (usually) self-insurance arrangements that are ultimately unlimited.  The relevant self-insurance scheme will also meet any professional liability of an employee.  So they say they offer ‘professional indemnity’ but it’s equally accurate – probably more accurate – to say they are vicariously liable and the terms of that liability will be sufficient to meet the PII standard.

Liability only applies where there is negligence ie a failure to provide reasonable care where that causes injury loss or damage.  A paramedic may provide a ‘needle thoracocentesis’ but that will not necessarily lead to liability. It may have been a reasonable response in all the circumstances ie the ‘paramedic has recently completed training on [the] procedure’, the patient ‘requires this skill immediately to prevent harm (death). No one else can perform the skill in a reasonable amount of time and the equipment is available to the paramedic’.  I have argued elsewhere that I don’t think not acting on the basis that ‘my employer instructed me that it would prefer the patient to die than to try my best’ would meet the ‘reasonable person’ test.  So if the action was a reasonable response in all the circumstances, there is no liability even if the action was outside the ‘authority to practice’.

Second for liability there must be damage. There must be proof that applying the procedure made the situation worse. That it didn’t make it better would not be damage, it must make the situation worse. If you save the patient’s life, or the outcome is the same, then there is not liability even if the action was outside the ‘authority to practice’.

Vicarious liability extends to do authorised acts in unauthorised ways, and a paramedic is employed to render emergency and at times lifesaving care to their patients.  They are expected to use their professional judgement and recognise that not every case presents as a text-book and judgement is called for (Queensland v Masson [2020] HCA 28).

What avoids vicarious liability is when an employee can be described as being on a ‘frolic of their own’.  If you are operating a private first aid business that is clearly not doing the work of the ambulance service and they will not be liable for any negligence. If as a side hussle you are working for uber eats and delivering meals in the ambulance that would also be outside any connection to your employment and vicarious liability could not apply. But where someone needs immediate health care, a triple zero call is made, so the reason the paramedic is there is because the ambulance service sent them, and they sent them to provide care for the patient, and the paramedic honestly believed in all the circumstances that this was necessary (not just convenient) and in the best interests of the patient, then even if turns out there is an adverse outcome and the paramedic’s actions made the situation worse, then the ambulance service will still be vicariously liable.

Is the paramedic acting without PII at that time?  That is a purely hypothetical question. Assume the paramedic does the thoracocentesis but no-one sues anyone.  If a complaint was made that the action was done without insurance the argument would be that they were covered by the employer’s insurance and given that has never been tested, because the issue was never tested, then you could not know the actual answer.

I suspect that if the procedure was performed and the patient was harmed then the issue before the Paramedicine Board would be whether the paramedic was guilty of some form of unsatisfactory professional conduct evidenced by their action rather than whether the employer’s insurance would have covered them if they had been sued.

And if they are sued; and the employer denies liability on the basis that the paramedic was on a ‘frolic of their own’, and they win, then we’ll know that the paramedic was practising without relevant insurance.

Conclusion

To return to the questions:

•          Am I correct in assuming that the JAS cannot avoid all liability by claiming any harm results from a clinician (who is acting in good faith) steps outside their allocated “Scope of Practice”?

That would be consistent with my understanding of the law on vicarious liability.  Consider that many schools are vicariously liable for the sexual assault of their students, and yet abusing pupils in their care is not even closely related to a teacher’s duty statement.   

If the paramedic put together a kit to do a procedure that was not authorised and carried it to work each day clearing planning to do that procedure whenever they felt it was appropriate, then one might say that this procedure was something they were doing as their own practice – a frolic of their own. But that was not the situation described here. In the situation described here the paramedic is doing fundamentally what they are there to do which is provide health care in the best interests of the patient and that involves exercising clinical judgment where life or death may depend on their judgment.

•          And in the above hypothetical situation, would the paramedic be breaching their PII requirements if the JAS has stated they will not cover this (even if they would be vicariously liable) and the paramedic has no other PII arrangements outside of this?

Again, I cannot see that as the relevant issue in the circumstances described.  If the JAS is vicariously liable, then there is an insurer to meet the claims which is the point of the PII standard.

See also Revisiting conflict between a paramedic’s skills and an employer’s duty statement (April 26, 2021).

Remember too that PII often provides much more in particular PII (depending on the policy) may also provide assistance with representation at professional disciplinary hearings. The employer’s obligations under vicarious liability do not extend to that.

Disclaimer: Both the Australian College of Paramedicine and the Australian Paramedics Association offer PII and both are sponsors of this blog. Australian Emergency Law does not specifically recommend either policy and recommends that any paramedic considering buying PII read the policy information from both, and other PII providers, to buy the product that suits their needs.

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.