In Paramedicine Board of Australia v Vanderberg [2024] QCAT 382 the Queensland Civil and Administrative Tribunal (QCAT) reprimanded a paramedic for performing an episiotomy that was not clinically indicated and that was outside his clinical scope of practice, and also for failing to complete adequate patient care records regarding the treatment of both mother and baby.

In his submissions to QCAT (see [12]) the paramedic said that he thought the baby was distressed and the labour was not progressing. He ‘wrongly thought that a ridge of bunched skin on the baby’s head, which had crowned, was the umbilical cord’ and that the baby’s life was at risk if he did not act.  He acknowledged ‘that his assessments were wrong, the episiotomy was not clinically indicated, he acted outside his scope of practice and he performed the procedure incorrectly causing Patient A harm in the process’.

With respect to the record keeping the allegation was that the paramedic and his partner were at the hospital for over an hour but did not provide a completed electronic Ambulance Report Form (eARF) until 24 hours later.  The paramedic submitted that he observed his partner was completing the eARF.   He said ([12](f)}:

(iv) … they got sent out on a succession of cases which continued until the end of the shift and it was generally not uncommon to be sent away to another case before the paperwork for the then present case had been finished;

(v)      he later learned the eARF for Patient A was submitted the next morning;

(vi)     he admits in accordance with QAS procedures he did not comply with certain obligations concerning the eARF, that he should have reviewed the eARF, especially with respect to the episiotomy entries and he should have signed it and participated in its timely completion. He acknowledges there should have been a separate eARF submitted for the baby and this was not done…

The parties agreed that the paramedic’s conduct represented professional misconduct (with respect to episiotomy) and unprofessional conduct (with respect to the record keeping), that it was appropriate that he be reprimanded, and his registration be subject to conditions regarding further relevant training and supervision.

Although the parties agreed on what they thought was the appropriate outcome it was still up to the Tribunal to decide for itself whether that outcome was appropriate. The Tribunal was not bound by their agreed position but did, ultimately impose the agreed sanctions.

Discussion

The paramedic, Mr Vanderberg was a paramedic of 35 years standing.  He had been a critical care paramedic for 20 years and was the officer in charge of a QAS station.  He was stood down from duty the day after these events and his employment terminated about a year later after internal disciplinary proceedings.  The Paramedicine Board considered taking immediate action to suspend his registration but did not do so, instead accepting his undertaking not to practice until the matters had been resolved. He has therefore not practiced since December 2019.  At [11] we’re told:

On 7 January 2020, the Board notified the respondent it decided to investigate whether the respondent had practiced outside his scope of practice by performing the episiotomy on Patient A and whether his documentation in relation to Patient A was adequate and/or appropriate.  Almost three years later, it determined to refer the respondent to the Tribunal.

It simply beggars’ belief that it took 18 months to ‘decide to investigate’ and then another three years to refer the respondent to the Tribunal.

On one view the entire action, in particular the loss of employment, seems disproportionate.  If the paramedic had been right and had saved the babies life, he would have been a hero.  His actions should be judged in the circumstances he honestly and reasonably believed them to be.   If his diagnosis and response was misguided some further education on how to manage emergency childbirth may have helped. But it is not my decision and I do not know what evidence QAS considered or the basis for their ultimate decision.

Further, the issue was not just that he performed a procedure outside his scope of practice, but that he did it without seeking ‘decision support for his planned treatment pathway of performing the episiotomy via QAS clinical consultation’ ([14](c)(i)) and, further he did not perform it well.  The case report says (at [14](c]):

(ii)      he did not use appropriate sterile equipment;

(iii)     the episiotomy was cut at the wrong angle;

(iv)     Patient A was not administered any or any appropriate pain relief at the time. Patient A’s statement from July 2020 includes that the pain she suffered was the worst ever in her life and that as at that time she was experiencing ongoing issues;

(v)      the resulting laceration was excessively large and caused significant damage to Patient A’s labia and perineum, with tissue being wrongly incised; and

(vi)     the child’s scalp was nicked;

With respect to the eARF, .the Tribunal noted (at [15]):

… the respondent has recognised he should have signed the eARF for Patient A and in doing so reviewed it and contributed content to it concerning the episiotomy, and the eARF was delayed in submission. Further, there was no eARF for the baby. Balanced against this, are the workload which the respondent and his partner had on the day, that the verbal handover was adequate for immediate care purposes, there were no health issues for the baby and the QAS found that a disciplinary charge of failing to complete patient care documentation in a timely manner was not substantiated. Weighing these factors, the Tribunal is satisfied that the respondent’s conduct contained in the agreed facts is properly characterised as unprofessional conduct, that is conduct which is of a lesser standard than might reasonably be expected of him by the public or his professional peers.

The outcome

The Tribunal noted (at [23]):

… the parties have agreed a reprimand, which the authorities recognise is a serious matter for a professional person and is not a trivial penalty.  It accepts the Board’s submissions that a reprimand marks, from the perspective of general deterrence in particular, the clear inappropriateness of such conduct to the profession and the broader community.  That is important in this case because, whilst there was no absence of good faith, the respondent’s actions were very serious, and resulted in actual harm to Patient A and the child.  Even allowing for the fact that obstetric cases are, according to the Board’s expert evidence filed in the proceeding, not a common occurrence for paramedics and there is a high degree of stress involved, it is critical to the public’s confidence in our health system that attending paramedics act in accordance with established procedures, particularly when managing unusual and stressful cases, to ensure the best outcomes possible for patients. Acting within established scope of practice and in accordance with the QAS (or other operative) guidelines helps to achieve this position…

The parties proposed conditions requiring further education and mentoring (25]). The education was to be directed to ‘a paramedic’s permitted scope of practice and record keeping obligations’ (Annexure A, [1]) but not education about managing emergency childbirth.

Given that the paramedic’s employment with QAS was terminated how he might return to practice is unclear and the Queensland community has lost the services of an experienced paramedic with, until this incident, an unblemished record ([8](d)).

POSTSCRIPT

After writing this post I received this comment via Facebook:

Sorry Michael but the procedure was being done on the mother (ie the patient). Until such time as the baby is born it is not a patient rather the mother is.

As you have pointed out previously is that every person’s body is inviolate (Collins v Wilcock [1984] 3 All ER 374); and

… all medical treatment is preceded by the patient’s choice to undergo it (Rogers v Whitaker [1992] HCA 58).

The risk of an episiotomy causing long term life altering problems particularly if done incorrectly (and exposing the patient to potentially life threatening infections is also huge)

I don’t think the patient would’ve been able to provide informed consented particularly if she knew that the paramedic wasn’t trained in that skill.

The WHO defines obstetric violence as “outright physical abuse, profound humiliation and verbal abuse, coercive or unconsented medical procedures (including sterilisation), lack of confidentiality, failure to get fully informed consent, refusal to give pain medication, gross violations of privacy, refusal of admission to health facilities, neglecting women during childbirth to suffer life-threatening, avoidable complications”

Obstetric violence is considered as a form of gender based violence internationally. An episiotomy in this context is tantamount to obstetric violence and although it isn’t criminalised in Australia it is in other overseas jurisdictions.

In fact the NSW Parliament recently published a report into birth trauma which discriminates the impacts of not obtaining proper consent. One recommendation was to review the legislation surrounding informed consent, with some submissions calling for this to be criminalised. I therefore strongly disagree that the loss of a job was disproportionate or that had this being necessary he would’ve been considered a hero. Your argument here is essentially that it is ok to physically and probably psychologically harm the patient and this would be outweighed if the baby actually needed it. The paramedic acted in a way that was violent towards his patient. That he was not trained to do and caused actual harm to his actual patient.

Whilst I don’t argue there was an intent to cause harm, i do argue that you are incorrect to state that losing his job was a harsh consequence.

I’ve reflected on that comment and my own ‘editorial’ in the post where I said:

On one view the entire action, in particular the loss of employment, seems disproportionate.  If the paramedic had been right and had saved the babies life, he would have been a hero.  His actions should be judged in the circumstances he honestly and reasonably believed them to be.   If his diagnosis and response was misguided some further education on how to manage emergency childbirth may have helped. But it is not my decision and I do not know what evidence QAS considered or the basis for their ultimate decision.

I accept that I made that comment without thinking about the implications for the female patient. I recognise that there has been a NSW Select Committee on Birth Trauma and whilst I haven’t read the Final Report I recognise that the person who wrote this comment is far more informed on these issues than I, and I should not write from a position where I am not, but could have been informed.

I am certainly mindful of the need for consent, and I hadn’t really addressed that (though, I note, neither did VCAT). It was not specifically part of the complaint that he did the procedure without consent but equally it wasn’t raised, as a defence, that he had fully explained the position and got consent to perform a procedure that he was not trained to do in circumstances where he did not try to obtain further advice on whether it really was indicated.

It’s my job to report on the developments in the law and communicating the outcome of the cases is important. We are all presumed to know the law and you can only know the law if you can access it and I see it as my (self-appointed) role to try and make the law accessible.   Like anyone I can form views of what I think of the law, and what I think of outcomes but my opinion on the outcomes is not more authoritative than anyone else’s. As I said in this case it was not my decision, and I don’t know what QAS relied on so I was, and am, in no position to judge.  I overstepped the mark here and demonstrated some hubris and arrogance.  I will take that on board in future and try to be more humble and stick to reporting on the law.

I apologise for getting it wrong here and thank Kay Mary a) for bringing these issues to my, and our, attention and b) giving me an appropriate lesson in humility.

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.

This blog is a general discussion of legal principles only.  It is not legal advice. Do not rely on the information here to make decisions regarding your legal position or to make decisions that affect your legal rights or responsibilities. For advice on your particular circumstances always consult an admitted legal practitioner in your state or territory.