Today’s question revisits the issue of a conflict between an employer’s directions and an employee’s skills – see https://australianemergencylaw.com/?s=volunteer+scope+of+practice –  but this question has a twist. Today’s correspondent is:

… a paramedic practicing in a remote area of NSW.

Recently, NSW Ambulance have increased the scope of practice of paramedics to include Needle Thoracocentesis, CPAP and the application of PEEP to ventilation; all skills that may be lifesaving, and further are within the scope of practice of equivalent paramedics in all other states.

Both ambulance unions currently are opposing the skills upgrade, and as part of this action, NSWA educators are refusing to teach the new skills, leaving paramedics who want to take part in the upgrade unable to learn them.

At my station, our nearest ICP backup is approximately 300km away; and obviously unavailable to us. Additionally, aeromedical assets are generally a minimum 2hrs from us.

As such, all of us are very passionate to learn and utilise these skills regardless of the current industrial issues, as their lack of availability in the past has contributed to patient deaths in our area multiple times recently.

We are all very familiar with the skills through our own research as registered professionals, prior university studies and practice with the equipment on station and are satisfied we understand the indications/contraindications for each and would be capable of performing them. Because of this, we have stocked the vehicles with the new equipment “just in case”.

My questions are the following:

1.         If we were to utilise these skills, and an adverse outcome occurred that was related to the procedure (e.g, inadvertent misplacement of a decompression needle), could we be held liable as individual practitioners, or otherwise would ambulance have grounds for terminating our employment based on a skill they have not yet trained us in formally?

2.         Alternatively, if we withheld the skills and a patient had an adverse outcome, could we and/or the service be held liable?

The answers to these questions, and to so many others, is ‘it depends on all the circumstances’.

Question 1

Employee’s duty

First an employee is required to obey the reasonable directions of an employer. The employer is required to ensure people are trained and competent in the skills required to do their job and, quite rightly, can insist on a person meeting a training requirement before being endorsed with a particular scope of practice. The starting point has to be therefore, if you haven’t been trained and ‘signed off’ on these skills, you should not be using them and if you do, depending on all the circumstances, your employer may have grounds to dismiss you.

Liability- breach

Second, whether there is ‘liability’ depends on a number of factors, in particular duty, breach and damage. That a paramedic owes a duty of care to their patient goes without saying. As for ‘breach’ that means a paramedic did not act reasonably in the circumstances. Where the circumstances are the patient is facing imminent death, the paramedic is ‘very familiar with the skills … and are satisfied we understand the indications/contraindications for each and [are] capable of performing them’ then there may be no breach even if the procedure is not effective.  Whether your licensed or not does not prove negligence. An unlicensed driver may be very competent; a licensed driver may be a threat to all other road users and who has the licence does not prove who was at fault at the accident. So just because you have not been signed off does not mean you are not competent.

It may be reasonable to try and sometimes some adverse events are risks ‘inherent’ in the procedure, ie even with the best care they can still happen, or it may be that there is a risk of error – say ‘inadvertent misplacement of a decompression needle’ but the risk is worth running taking into account the alternative (ie death).  It may be that to have a go is not unreasonable.

On the other hand if there is a less than optimal performance, and the plaintiff can prove damage, then yes, the paramedic could be liable but that would depend on whether there was damage and the issue of vicarious liability.

Damage

Damage requires proof that the person is worse off as a result of the paramedic’s conduct. If the option is ‘do nothing and the patient dies or do something’. If the ‘something’ doesn’t work the patient still dies so no harm is done. If the something saves their life, even if it is imperfect, the patient has not suffered harm (but see below for some further nuance on that point).  At least in the context here whether the patient dies or not, it is hard to see how the paramedic has caused any loss or damage so there can be no liability.

Vicarious liability

If the patient was going to survive anyway so it can be said that the patient is worse off then there could be liability, but who that falls to would also depend. First the plaintiff wants to sue someone with money so the better target is NSWAS. They will be vicariously liable even if their employee does an authorised act in an unauthorised way. Here paramedics are employed to provide care to their patient. It would turn on whether they are employed solely to provide care as directed or a more general – do the best they can for the patient. Remember in the inquiry into the death of Allison Hume ([2011] FAI 51; see Legal confusion leads to unnecessary death (December 8, 2011)):

[The Incident Controller] in particular, considered that the rescue operation was “a success”. In his view he had adhered to the policies and procedures set out by Strathclyde Fire and Rescue Service. He had obtempered to the letter the instruction contained within the Memoranda from Strathclyde Fire and Rescue Service of the 14 and 27 March 2008. There had been no casualties other than the one to whom the Service was called upon to rescue.

Unfortunately this was not a successful operation: a woman died who had … survivable though life threatening injuries…

Would you, or your Incident Controller, or the patient, or their family, think your operation was a ‘success’ because you ‘adhered to the policies and procedures’ even though a person ‘died who had … survivable though life threatening injuries…’?  Or is it a success to think ‘this person is going to die if I do nothing, there is something I can try, it’s this or its nothing, I’ll give it a go’?  Do we want paramedics to exercise clinical judgement (see High Court overturns finding of negligence against Queensland paramedic (August 13, 2020)) or as the Sheriff in the matter of Allison Hume said rescuers who are willing and able to use ‘some imagination, flexibility, and adaptability’.  The issue of vicarious liability would therefore turn on what the ambulance service expects of its staff and what success looks like.  I imagine the ambulance service wants it staff to only use the skills they are trained and ‘signed off’ on but a modern paramedic’s skills are not just technical, they are about judgment and acting in the patient’s best interests and sometimes going outside the rules – where it is a matter of life and death – can be justified – Performing an Emergency tracheotomy (or life mimics art?) (March 11, 2018).

The twist in this question is the comment ‘we have stocked the vehicles with the new equipment “just in case”.’  Most other times when I’ve answered a similar question the scenario has been that the equipment is there.  Here however my correspondent is adding the equipment to the car ie making sure they have it not just having coincidental access to it. This may look like they are on a ‘frolic of their own’ ie setting up their own practice rather than that of their employer.

Question 2

No, the service could not be liable if you withheld the skills, and a patient had an adverse outcome.  The service doesn’t promise to provide an ICP to everyone. The service doesn’t provide a full medical retrieval team to everyone but no doubt there are some people who have died who might not have had that been available.

Could you be liable? Not for the payment of damages because you can only be expected to do your job.  Other paramedics may consider that the failure to act demonstrates a lack of skill or knowledge in the practice of a profession, but it would be hard to expect a colleague to do something they are not formally trained in or authorised to do.  Again that is different from the usual question where the correspondent says ‘I am trained and do this procedure in my ‘day job’ but I’m instructed not to do it on this overtime shift or this volunteer organisation’.

To return to the issue of damage

I said above that if the patient survives there is no harm done. That is true in this context but may not be in all contexts. Where a patient has indicated they refuse treatment, eg they don’t want to be resuscitated because the very thing they don’t want is to end up in a residential aged care facility with permanent hypoxic brain damage. You resuscitate them knowing that they had refused treatment and they end up in the very position they wanted to avoid, then they may well be able to show real damage (see also Malette v Shulman (1990) 67 DLR (4th) 321; doctor sued for administering blood contrary to patient’s known wishes even though it saved her life). But that arises in the context of the tort of battery, not negligence which we are discussing here. I raise it just to make the point that there could be damage even if the patient survives but as I say, not in the context of this discussion.

Conclusion

As I have noted today’s questions varies from the ‘usual’.  Usually, the scenario is the person is trained in a procedure but on this particular shift/job they have been instructed not to use those skills even though the equipment is to hand. In this scenario the paramedic has not been formally ‘signed off’ by anyone and they are loading the equipment themselves.

The answers to the question are:

Question 1: Yes, if they ‘were to utilise these skills, and an adverse outcome occurred that was related to the procedure’ then they ‘could be held liable as individual practitioners, [and] … ambulance [might] have grounds for terminating [their] employment …’ That is not to say either of those things would happen. It would depend on all the circumstances, but it is theoretically possible.

Question 2: If you withheld the skills and a patient had an adverse outcome, neither you nor the service would be liable.  It would not be the service that killed the patient, it would be whatever their condition was.

POSTSCRIPT

I have been thinking more about this scenario, particularly in light of comments on this blog’s Facebook page.

My conclusion to question 1 was:

Yes, if they ‘were to utilise these skills, and an adverse outcome occurred that was related to the procedure’ then they ‘could be held liable as individual practitioners, [and] … ambulance [might] have grounds for terminating [their] employment …’ That is not to say either of those things would happen. It would depend on all the circumstances, but it is theoretically possible.

The way to think about these issues is put yourself in the position of the loved one of the deceased and try to imagine what legal action they could bring.  I stand by my conclusion that in circumstances where the patient dies and it can be shown that it is more likely than not that they would have survived if the procedure had been performed correctly it is theoretically possible that they could sue the ambulance service and the ambulance service might try to avoid vicarious liability on the basis that the paramedic was on a frolic of their own.

I want to reiterate however that whilst that is theoretically possible, I think I very unlikely.  First as noted above, the adverse outcome does not prove the decision to try was unreasonable in the circumstances; and second it would be hard to prove damage – if the patient dies, they are no worse off if it was more likely than not that they were going to die without the procedure, and if the procedure saves their life even if it was imperfect they’re better off.

And it would be harder to make the ‘frolic of their own’ argument where these are skills the service wants the paramedics to have and the paramedics, as health professionals, have conscientiously tried to get those skills in circumstances where it is industrial action, not the service, that is stopping them getting certification.

So possible, but unlikely. 

I still think it would be impossible to sue the paramedics for not using the skill.  The paramedic who has a go, particularly if they save the patient, is a hero, the one that doesn’t is doing all that can reasonably be expected of them.

It seems to me, recognising again that I am not an expert in industrial law, that this may be an area where the Industrial Relations Commission might be willing to get involved – see More NSW Ambulance industrial action before the Industrial Relations Commission (August 22, 2023). Dispute orders may be ‘rarely’ made by the Commission, but the Commission might be willing to intervene where it shown that industrial action poses a threat to patient safety.

As for the argument (see the comments on the Facebook version of the blog) that the failure to offer a ‘professional’ pay rate poses a ‘potential greater, long-term harm if NSWA fails to recruit and retain experienced, high performing clinicians’, I suspect the Commission would find that theoretical possibility of less concern than the immediate threat to actual patients. Further that threat would require evidence of a failure to recruit staff (eg not getting enough applicants to fill positions) or a significant loss of staff.  I don’t know if that evidence exists, but I understand that NSWAS is not short of applicants when it advertises for paramedic recruitment.

If I were the legal representative of a patient who died and I wanted to seek some vindication, I would look to the paramedics on the union who were leading the action – not necessarily those educators who simply gave effect to the ban but those in leadership positions who came up with the idea. Those paramedics are still bound by their professional obligations including a focus on patient centred care. Now paramedics don’t have to work for nothing or in sub-standard conditions and unions have the right to advocate for their members.  Members who are asked to take on extra skills are entitled to be remunerated for them. But as I say, if I were the mourning and angry family member, I would certainly be looking at the union as my target rather than the individual front line paramedic who wanted the training but couldn’t get it.

And it’s a gamble how it would play politically.  If the press were aware of a case where it can be shown that a patient died, or at least their risk of survival was reduced, because paramedics did not have the training that the ambulance service wanted them to have due to industrial bans – would public outrage be directed to the service for refusing to pay paramedics more, or against the unions for imposing industrial bans that had a direct effect on patient safety?  Paramedics are well trusted and I think there is probably broad community support for their pay claims; but equally unions are often seen in an unfavourable light (and I say that as a person who has always been a member of their relevant union and who is sponsored to write this blog by the APA) and that support for paramedics may be lost if it can be shown that paramedics themselves are being denied training that they want and believe they need to advance their patient care.

On balance I don’t think the law, and in particular the law of negligence, is going to be pivotal in this.  The issues of duty and breach are too complex to say that in the case of any patient who dies but might have lived had the procedures been available, would have a cause of action against anyone – the paramedics, the service, or the union.  It’s an industrial issue that will play out in industrial law but where public sympathy will lie may depend on how any case is presented and the sympathies of the media outlets.

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.