Today’s correspondent says:
The Health Practitioner legislation, to my knowledge, makes it unlawful to hold yourself out as a specialist practitioner, especially in professions where there are no recognised specialties.
ASNSW has recently taken to calling extended scope paramedics (intensive care, extended care) “specialists,” which would seem to be in violation of the legislation.
The Health Practitioner Regulation national Law (NSW) provides for specialist registration ‘in a recognised specialty in a health profession’ (s 57). The medical profession and the dental profession have specialist registration. All other professions need approval by the Ministerial Council to provide for specialist registration (s 13). In the absence of that approval, the Paramedicine Board cannot register paramedics as a ‘specialist’.
I stop to note here that the Australasian College of Paramedicine (one of the sponsors of this blog) has recently reported (We’re being heard – Health Ministers recognise advance practice paramedic roles (2 May 2024) that:
At the Health Ministers Meeting held recently in Brisbane, the Health Ministers agreed to work with the Paramedicine Board of Australia to establish Area of Practice Endorsements for advanced practice paramedics in critical care and community paramedicine, marking an important milestone for professional advancement and recognition.
That is not the same as eIndorsing specialist registration, but it could be a step along that path. Whether that will lead to specialist registration or not, the situation is that today there is no specialist registration for paramedics and therefore no protected specialist title.
Section 115 provides that a person must not use the title of a specialist unless they are so registered that is a person cannot use the title ‘dental specialist’ or ‘medical specialist’ unless they are registered as a specialist. Equally a person cannot use a specialist title related to any of the other professions if there is, indeed, such a title (s 115). Given that paramedicine does not have specialist registration there is no ‘specialist title for a recognised specialty’ in paramedicine as there is no ‘recognised speciality’ (s 115). Therefore a person could not use the tile of a recognised specialist.
More importantly, section 118(2) says
A person must not knowingly or recklessly–
(a) take or use the title of “specialist health practitioner”, whether with or without any other words, in relation to another person who is not a specialist health practitioner; or
(b) take or use a title, name, initial, symbol, word or description in relation to another person who is not a specialist health practitioner that, having regard to the circumstances in which it is taken or used, indicates or could be reasonably understood to indicate–
(i) the other person is a specialist health practitioner; or
(ii) the other person is authorised or qualified to practise in a recognised specialty; or
(c) claim another person is registered under this Law in a recognised specialty or hold the other person out as being registered under this Law in a recognised specialty if the other person is not registered in that recognised specialty; or
(d) claim another person is qualified to practise as a specialist health practitioner if the person is not a specialist health practitioner.
It would seem that calling intensive care and extended care paramedics “specialists” would indeed be a breach of s 118(2). It is in effect calling them a specialist health practitioner (contrary to s 118(2)(a)), when they are not. The use of the term could also indicate that they are a specialist when specialisation does not exist in paramedicine (contrary to s 118(2)(b)(i)). I’m not sure where NSWAS is doing this, there does not appear to be any reference to the use of the term on the NSWAS website. It would however be prudent to find a different term to use.
POSTSCRIPT
This postscript deals with the various comments below and on the Facebook page:
The maximum penalty for a breach of s 118 in the case of an individual is a fine of $60,000 or 3 years imprisonment or both. For a corporate entity (which would include the NSW Government) is a fine of $120,000 but nothing like that would be expected in these circumstances.
Malcolm points out that the term ‘“Paramedic Specialist” in NSW is a term that predated the paramedic registration scheme and is defined in the Award, which is a publicly available via https://www.health.nsw.gov.au/careers/conditions/Awards/ambos-paramedics.pdf’. It has to be remembered that the priority of the National Law is consumer or patient protection. Section 118(1)(b) and s 118(2)(b) both prohibit the use of specialist claims where ‘having regard to the circumstances in which it is taken or used, indicates or could be reasonably understood to indicate–having regard to the circumstances in which it is taken or used, indicates or could be reasonably understood to indicate’ that the person has specialist registration. Where the term is used in internal documents or in an award that has its own definitions then the use of the term is not going to confuse or imply specialist registration to anyone who is reading that document.
This internal use is confirmed by David on Facebook but Justin says ‘Except of course on the side of the ECP vehicles, which are now labelled with ‘paramedic specialist’’. The Act prohibits the use of a title to suggest that a person is ‘a specialist’ or ‘qualified to practise as a specialist health practitioner’. Consumers may not know what the specialist titles or be aware that there are no recognised paramedicine specialties. So I suggest that the use of the term ‘Specialist Paramedic’ would suggest to an average person that the paramedic does have specialist endorsement and, if they considered that paramedics are registered under the same law as doctors that this implies that like specialist doctors they are registered in that specialty. I would suggest putting the words ‘paramedic specialist’ on the side of the ambulance would be a textbook example of a breach of s 118(1)(a) and (2)(a).
It would certainly seem prudent, since the introduction of registration, for ambulance services to find another word to use rather than ‘specialist’.
POSTSCRIPT 2
Marty made a further and important comment, below.
I understand the argument that a health professional only breaches the Act if claiming a specialist status in those professions where there is specialist registration (eg medicine and dentistry).
As Marty says s 115 is very much limited to those professions with specialist registration. Section 115(1) says:
(1) A person must not knowingly or recklessly take or use–
(a) the title “dental specialist” unless the person is registered under this Law in a recognised specialty in the dentists division of the dental profession; or
(b) the title “medical specialist” unless the person is registered in a recognised specialty in the medical profession; or
(c) a specialist title for a recognised specialty unless the person is registered under this Law in the specialty.
That section cannot apply to paramedics as there is no ‘recognised specialty’ with respect to paramedics. Section 115 is therefore directed to stopping people claiming to be a specialist dentist or doctor for obvious reasons. It would be harmful to patients if people claimed to be a specialist when they are not.
As Marty says, ss 118(1)(b)(ii), 118(1)(c), 118(2)(b)(ii) and 118(2)(c) also seem to be limited to a person claiming to be a specialist in those professions that have specialist registration, for example s 118(1)(b)(ii) says:
(1) A person who is not a specialist health practitioner must not knowingly or recklessly–
…
(b) take or use a title, name, initial, symbol, word or description that, having regard to the circumstances in which it is taken or used, indicates or could be reasonably understood to indicate–
…
(ii) the person is authorised or qualified to practise in a recognised specialty;
There being no recognised specialty in paramedicine would mean that a paramedic could not breach that section. But there are ss 118(1)(a), 118(1)(b)(i), 118(1)(d), 118(2)(a), 118(2)(b)(i) and 118(2)(d).
Section 118(1)(a) says:
(1) A person who is not a specialist health practitioner must not knowingly or recklessly–
(a) take or use the title of “specialist health practitioner”, whether with or without any other words;
That is a much more general prohibition and does not refer to a ‘recognised specialty’.
Section 118(1)(b)(i) says
(1) A person who is not a specialist health practitioner must not knowingly or recklessly–
…
(b) take or use a title, name, initial, symbol, word or description that, having regard to the circumstances in which it is taken or used, indicates or could be reasonably understood to indicate–
(i) the person is a specialist health practitioner;
Again no reference in this section to a ‘recognised specialty’.
Marty says:
… it is my view that the specific and repeated references to ‘recognised speciality’ in sections 13, 15 & 18 are intentional, as are the references specifically to medicine and dental specialities.
I think that’s true in s 15 and I think it is wrong with respect to s 18 as the term ‘recognised specialty’ is used in some provisions and not in others. If s 18 was intended to stop people claiming specialist status only in those professions with specialist registration the sections quoted above would not be necessary. My interpretation is that the section is trying to cover situations where a person claims to be registered in a recognised specialty and where a health practitioner claims to be specialist in any circumstances where they are not, including where there is no recognised specialty.
I agree that:
When a provision in an Act could have more than one meaning section 33 of the Interpretation Act 1987 requires us to consider the meaning that promotes the purpose or object of the Act to be the preferred meaning. The Objects of the Health Practitioner Regulation National Law (NSW) references the regulation of health practitioners, and then the broader principles in 3(2) …
The Act has to be interpreted in accordance with the guiding principles set out in s 3A including ‘The main guiding principle of the national registration and accreditation scheme is that the protection of the health and safety of the public must be the paramount consideration’. I think the claim that ‘Since paramedicine does not have recognised specialty practice there is no public expectation in regard to what a specialist paramedic is’ is unreasonable. Most people will not have read the Health Practitioner National Law or the various documents published by the Paramedicine Board. I would expect that the public (however defined) would think if someone is calling themselves a specialist health practitioner it means something as we are used to claims by specialist medical practitioners means something.
Marty says his argument ‘… could explain while the law has not concerned itself to date with the use of specialist in paramedicine and nursing roles’. The law is rules on paper, it is indifferent to everything. It is the regulator who uses the law – to use my favourite phrase, the law is not self-executing – so the issue is why is the regulator not concerned. It may be that the issue does not This may not matter as much in the case of paramedicine as in medicine as people don’t choose their paramedic as they may choose their doctor, but that may change and it will be relevant for industry who may be entering contracts with paramedic providers. Further the regulator may be less interested in taking on NSWAS given its size in the sector and the idea that the claim by NSWAS is not posing the same risk as if it was being done by private providers. With limited resources every regulator has to pick its fights.
In summary I do not think that ‘in absence of any recognised specialty practice areas in paramedicine, … the ground [is] therefore … free for organisations and clinicians to make their own claims’. As noted I think the sections of s 18 I have quoted cover that area.
What this shows is that legal opinions are at best predictions as to what we think a court would do if the matter came before it. There are alternative arguments and that is what courts have to resolve, and only courts can give a binding answer. All the rest of us can do is give an opinion. It is my opinion that paramedics cannot use the title ‘specialist’ where they are not registered as a specialist and that applies to both those professions with recognised specialties and those that do not.
As I said it is my opinion that having the words ‘Paramedic Specialist’ on an ambulance is a clear breach of s 18(1)(a).
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.
Australian Emergency Law 
“Paramedic Specialist” in NSW is a term that predated the paramedic registration scheme and is defined in the Award, which is a publicly available via https://www.health.nsw.gov.au/careers/conditions/Awards/ambos-paramedics.pdf
The current Award uses similar titles and definitions as previous Awards. The term would also no doubt be included in numerous internal documents. From your comments, it would seem that either NSWA (and perhaps other ambulance services) should use different terminology, or the legislation could be altered slightly to permit the continued use of terms that seem to have been useful for some time.
There is also precedence within the nursing/midwifery professions (in NSW at least) where senior nurses are appointed as Clinical Nurse/Midwifery Specialists (CNS/CMS) under the state award in a similar way that paramedics are appointed ECP/ICP.
This is usually based on post-graduate qualifications or significant experience and a portfolio is presented to the senior nursing management for appointment. This title has existed for many years and was definitely in place prior to AHPRA’s existence and has no mention in the registration process.
You must be Registered Nurse with AHPRA to apply for CNS, as you do to be a Nursing Unit Manager (NUM), Clinical Nurse Consultant (CNC) or even Director of Nursing.
It seems that the job titles “XX specialist” that are commonly used across the Health system for consistency both within and outside the system to indicate a senior clinician and might not have been considered during this law implementation.
The term “practitioner” is how advanced practice nurses/midwives/paramedics are referred to and that requires a specific endorsement from AHPRA.
Interested to see how a long standing job title is contradicted by newer legislation.
Hi Prof Eburn!
Another interesting read.
I was initially going to respond along the lines of the two readers who beat me to your comments section, that being:
I am aware that just because something has history and because another profession does it does not make it legal. So I wanted to confine my further probing of this matter to the matter of ‘Paramedic Specialist’ being put on the side of some NSWA vehicles, or paramedics referring to themselves as ‘Paramedic Specialists’.
I believe that there may be a precondition not present that allows paramedicine (& nursing, etc.) to use ‘specialist’ as they desire at this time.
Section 13 of the National Law articulates:
It appears that the intent of Section 13 is to articulate the requirements of specialist registration in the professions for which it is in operation, rather than professions where it is not formalised.
Section 115 outlines the restrictions of the use of specialist titles. However, as with my interpretation of section 13 it appears that there is a precondition to meet, that being a profession where there is recognised specialist practice.
Section 115(1)(c) refers to ‘specialist title for a recognised specialty’.
The same focus on ‘recognised speciality’ is present in s115(2)(c).
When we turn our attention to section 118 this focus remains in the frequent use of ‘recognised speciality’ in:
As such, could one interpretation on the legislative intent of sections 13, 15 & 118 be to align with the National Laws overarching principle of ensuring public protection (s3). Section 3(2)(e) references one object being the facilitation of access to services provided by health practitioners in accordance with the public interest, and section 3(2)(f) references the development of a flexible, responsible and sustainable Australian health workforce.
When a provision in an Act could have more than one meaning section 33 of the Interpretation Act 1987 requires us to consider the meaning that promotes the purpose or object of the Act to be the preferred meaning. The Objects of the Health Practitioner Regulation National Law (NSW) references the regulation of health practitioners, and then the broader principles in 3(2) as discussed above. While regulation is the first object, it is my view that the specific and repeated references to ‘recognised speciality’ in sections 13, 15 & 18 are intentional, as are the references specifically to medicine and dental specialities. As such could a case be made that the expressio unius est exclusio alterius (the expression of one thing is the exclusion of the other) principle for statutory interpretation apply? This could explain while the law has not concerned itself to date with the use of specialist in paramedicine and nursing roles.
The public protection aspects are catered for in the general registration regulation provisions. Since paramedicine does not have recognised speciality practice there is no public expectation in regard to what a specialist paramedic is. There is also no educational standard for specialist paramedicine practice. If both of these were to occur, then organisations and clinicians would need to ensure they meet them or cease using the term. However, in absence of any recognised speciality practice areas in paramedicine, is the ground therefore not free for organisations and clinicians to make their own claims?
It would seem that nursing has previously considered this issue when the Nursing and Midwifery Board of Australia (NMBA) undertook research in 2014 into which explored the need for regulation of specialty areas within nursing.
https://www.nursingmidwiferyboard.gov.au/Codes-Guidelines-Statements/FAQ/fact-sheet-advanced-nursing-practice-and-specialty-areas.aspx
The NMBA has therefore concluded that current systems in Australia provide an appropriate level of public protection, whilst ensuring a dynamic, flexible and responsive workforce.
Regards
Marty