My correspondent says:

Today’s question is in relation to AI dictation and documentation tools in the prehospital environment.  I’ve recently noticed colleagues such as doctors in hospitals and my GP using AI for documentation. Apps like Heidi AI say they are compliant with Australian data safety standards and are a fantastic tool.

My employer a state ambulance service states we are not able to use this as it’s not endorsed by the ambulance service.

AHPRA outlines our requirements as a professional when using AI here https://www.ahpra.gov.au/Resources/Artificial-Intelligence-in-healthcare.aspx

Is an employer able to dictate what software and systems a clinician uses to aid clinical documentation and decision making?

If so what potential issues will prehospital clinicians face in the implantation of these tools.

There are limitations and risks in the use of AI as explained by the AHPRA document – Meeting your professional obligations when using Artificial Intelligence in healthcare – and referred to in the question.  I would be particularly concerned if entering patient data to understand where that data is stored and how it is used.  Clearly, as the AHPRA document identifies there are complex technical and with those, legal issues involved.    A doctor who operates their own practice can make their own decisions about those risks.  A paramedic who is employed by a jurisdictional ambulance service (or by any employer) is not acting on his or her behalf if they make decisions to employ AI they make those decisions on behalf of their employer who will face the potential legal consequences if the data is not adequately protected, there is a breach of confidentiality or a failure to obtain proper, informed consent.

Joanna Morgan and Alannah Hogan, Lawyers from the firm Corrs Chambers Westgarth writing for LexisNexis Australia’s General Counsel Practical Guidance say:

There is a term implied in law in every contract of employment requiring an employee to obey the lawful and reasonable directions of their employer. This term goes to the root of the employment contract, and gives effect to the right of employers to exert “control” over employees — which is a key determinant of the existence of a contract of employment.

In Construction, Forestry, Maritime, Mining and Energy Union, Mr Matthew Howard v Mt Arthur Coal Pty Ltd T/A Mt Arthur Coal [2021] FWCFB 6059. [72] the Full Bench of the Fair Work Commission said:

Reasonableness is a question of fact having regard to all the circumstances’ and that which is reasonable in any given circumstance may depend on, among other things, the nature of the particular employment. The approach to the task of assessing the reasonableness of a direction to an employee was identified by Dixon J in Darling [R v Darling Island Stevedoring & Lighterage Co Ltd; Ex parte Halliday [1938] HCA 44], as follows:

‘But what is reasonable is not to be determined so to speak, in vacuo. The nature of the employment, the established usages affecting it, the common practices which exist and the general provisions … governing the relationship, supply considerations by which the determination of what is reasonable must be controlled…

If ‘the clinician uses [AI] to aid clinical documentation and decision making’ where that documentation is being written, and the care delivered on behalf of the employer then it seems axiomatic to me that a direction to not use AI would be a lawful and reasonable direction.   Failure to adhere to that direction could lead to disciplinary action by the employer.

If the employer directed a clinician to use an AI tool that raises more complex questions because of the practitioner’s independent obligations to their patient and professional standards.   Whilst a practitioner may be excused some of the due diligence requirements on the expectation that the employer has meet them and will be responsible if the tool turns out to be inadequate in some respects.  Given the AHPRA document a registered practitioner may have duties to report to an employer their concerns about any particular tool that the employer has adopted. That was, indeed, part of the argument for registration of paramedics, to empower them as a profession to ‘stand up’ to employers to insist that they are able to perform their role in a way that matches standards set by the profession, not by employers.   A direction to ‘use’ a particular AI tool may breach the rule as it may be ‘unreasonable’ if it puts paramedics at risk of breaching their professional obligations and may be ‘unlawful’ if, for example, the tool should be but is not registered with the Therapeutic Goods Administration (see, again Meeting your professional obligations when using Artificial Intelligence in healthcare).

Conclusion

The question asked was ‘Is an employer able to dictate what software and systems a clinician uses to aid clinical documentation and decision making?’  The broad answer is that an employee is required to obey the lawful and reasonable directions of their employer.   If an employer’s direction to use, nor not use, particular ‘software and systems … to aid clinical documentation and decision making’ is lawful and reasonable then it must be complied with.  Whether the direction is lawful and reasonable depends on all the circumstances which would include consideration of the matters identified by AHPRA.

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.