Today’s question comes from

…a registered paramedic with AV … and also a volunteer firefighter with CFA …

Over the past few months I have encountered four high risk MVA’s in my role as a fire fighter where patients have been acutely unwell and not managed appropriately with AV personal on scene ignoring my suggestions for management or intervention which in turn results in direct harm to the patients. 

I have obviously completed all the internal complaint processes for the same and asked management for clarification surrounding my responsibilities when off duty for av, in an external role in CFA and witnessing ongoing mismanagement or alternatively no management of patients.

Whilst I have received an answer in writing of sorts I believe it still may leave me ‘wide open’ legally given that if I am unable to be placed on ‘recall’ for a case when attending as a CFA volunteer and I have then been in turn directed to ‘do nothing’ with regard to patient care or intervention on scene regardless of how poorly the patient is managed.

I would appreciate your thoughts or advice on this matter …

My correspondent is not left ‘‘wide open’ legally’.  At the motor accident where an Ambulance Victoria crew are on scene that it is that crew that are providing services to the patient on behalf of Ambulance Victoria.  My correspondent is under not duty to rescue.

In Stuart v Kirkland-Veenstra [2009] HCA 15, Gummow, Hayne and Heydon JJ said (at [112]):

There can be no duty to act in a particular way unless there is authority to do so. Power is therefore a necessary condition of liability but it is not a sufficient condition. Statutory power to act in a particular way, coupled with the fact that, if action is not taken, it is reasonably foreseeable that harm will ensue, is not sufficient to establish a duty to take that action.

An off-duty AV paramedic has no authority (subject to the terms of their employment) to take over case management from the on-duty AV paramedics, particularly if they cannot be ‘recalled to duty’ to exercise powers that they may have a senior employee.  In the circumstances described my correspondent is not in any position to exercise any control of the risk to the patient (if there is a risk from the other paramedics).

Crennan and Kiefel JJ said (at [127]):

The common law generally does not impose a duty upon a person to take affirmative action to protect another from harm… The law draws a distinction between the creation of, or the material increase of, a risk of harm to another person and the failure to prevent something one has not brought about.

Again, in the circumstances described, my correspondent has not caused any harm to the patient. If the on-duty paramedics are providing less than ideal care, that does not impose a duty on my correspondent to do something about it.

The situation may be different if my correspondent is on scene and wants to provide care that the CFA doesn’t want them to provide (see NSW Paramedic and fire fighter – when does one role start and finish? (July 8, 2015); and Registered paramedic or firefighter? (July 10, 2018)) but that is not the situation being discussed.

Paramedics have an obligation to report colleagues to the Paramedicine Board where they observe a paramedic place ‘the public at risk of harm by practising the profession in a way that constitutes a significant departure from accepted professional standards’ (Health Practitioner Regulation National Law cl 140(d) and 141).  The obligation to report arises only where the ‘Registered health practitioner … forms a reasonable belief … in the course of practising [their]… profession’ (cl 141(1)).  Arguably observing them whilst on duty with the CFA is not observing the conduct or forming the belief when ‘practising’ their profession so there may not be an obligation to make a notification but a voluntary notification could be made (cl 144) as should, a notification be made to AV.

Conclusion

The situation described does not expose my correspondent to any legal risk or obligation. That does not deny that there is a moral obligation to point out to AV colleagues if they have missed something or are providing inadequate care and, if necessary to report that to AV or the Paramedicine Board.

But my correspondent is not responsible for all the decisions made by others and one can imagine that they, like others, would not welcome an off duty paramedic telling them how to do their job.  If they give advice and that is ignored, there is nothing more my correspondent can, or is required to do.

This blog is made possible with generous financial support from (in alphabetical order) the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), the Australian Paramedics Association (Qld), 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.