Toda’s correspondent asks whether ‘inconsistent terminology over the title ‘community paramedic’ might impact upon consent to medical treatment.  I’m asked to ‘ignore protected titles, and AHPRA’S current proposal on APP endorsement etc’.  I’m told:

The usage of this title [community paramedic] ranges from registered paramedics with no additional training of skills, to those with a Master’s degree and expanded capabilities.  I am wondering if this can impact informed consent.  My reasoning is:

If a paramedic describes themselves using a particular title, consumers may form assumptions (correct or incorrect) from that title about the level of capabilities that the clinician has.  For example, a consumer in WA may have read that Community Paramedics in SA are all intensive care paramedics with additional training – not realising that the WA Community Paramedics are registered paramedics with no additional training.

This in turn may inform the consumer’s decision to provide consent to particular treatment from that clinician.  Our WA consumer may assume their Community Paramedic has a higher level of training than a registered paramedic, influencing their decision to agree to a line of treatment.

If titles are inconsistent, the assumption underlying the patient’s consent is undermined.  This could occur without the WA paramedic making any misleading statements, but simply by stating their job title – a title that happens to be used inconsistently in different locations. 

Is this line of reasoning sound or flawed? 

I think the reasoning is flawed and assumes far too much knowledge by anyone other than those in the industry.  I suspect most people who are not in the trade have no idea that paramedics are registered health professionals given they were called paramedics long before registration, but let us look at the law.

The High Court described informed consent as that ‘oft-used and somewhat amorphous phrase’ (Rogers v Whitaker [1992] HCA 58, [15] (Mason CJ, Brennan, Dawson, Toohey and McHugh JJ).  Their honours looked at US authorities that have held that without information there is no consent so an absence of ‘informed consent’ means a doctor may be liable for battery. That is not the law in Australia.  They said ‘the consent necessary to negative the offence of battery is satisfied by the patient being advised in broad terms of the nature of the procedure to be performed’.

If therefore a ‘community paramedic’ indicates that they are going to apply a bandage, or insert a drip or a catheter, or take blood, or in any way touch the patient and the patient understands in ‘broad terms’ that is what they are going to do and consents then there is valid consent.  Any misconception on the person’s level of training, providing the treatment is indeed within their scope of practice, won’t make any difference. 

Whether their level of training makes a difference arises in negligence law.  Their Honours said (at [16])

… a doctor [and let’s read there also a paramedic] has a duty to warn a patient of a material risk inherent in the proposed treatment; a risk is material if, in the circumstances of the particular case, a reasonable person in the patient’s position, if warned of the risk, would be likely to attach significance to it or if the medical practitioner is or should reasonably be aware that the particular patient, if warned of the risk, would be likely to attach significance to it.

Does the level of the paramedic’s qualification represent a material risk? Assuming the paramedic is acting within their scope of competent practice then no it does not.  If a paramedic is going to administer a treatment they are trained and competent to perform, what does it matter that other paramedics in other jurisdictions may have a different scope of practice or a higher level of training?

It may be that the particular patient may put the paramedic on notice that they are concerned about the paramedic’s qualifications, though I would think they would be more concerned about whether they should be seeing a doctor instead of a paramedic, not a paramedic with a master’s degree as opposed to one who does not, or a paramedic in another state.  If the patient expresses concern about the paramedic’s qualifications making it clear that it is an issue that is material to them, then the paramedic would have to answer any questions honestly.

A negligence action requires proof of damage so if the paramedic makes an error and the patient sues the patient may, in the right circumstances, demonstrate that had they been warned or advised of the paramedic’s level of qualifications they would not have consented to the treatment then they may be able to succeed in their claim (see Chappel v Hart [1998] HCA 55). 

Nurses, doctors, paramedics, lawyers and all professionals and all tradespeople and all workers of all types have different levels of qualifications, skill and experience.  A person is entitled to assume that a ‘doctor’ or a ‘paramedic’ has the base set of skills leading to registration.  If they want to know what the extra title ‘surgeon’ or ‘specialist’ or ‘community care paramedic’ means they need to ask or look it up.  A mere assumption eg ‘I assumed that all medical practitioners had a PhD that is why they are called ‘doctor’’ is not going to be enough to mean a patient did not consent to treatment from their doctor when they discover their doctor does not have a PhD.  A patient could not sue because their doctor did not have a PhD. They could sue if they asked the doctor if they had a PhD and the doctor lied and the patient can convince the court that t would have made a difference to their decision, and the outcome, if they had been told the truth.

If the patient were to ask ‘what training do you have?’ the paramedic would have to answer it.  If the patient said ‘I want the best expert or someone with more experience’ a paramedic might have to explain what a doctor or nurse or an ICP may be able to do to allow the patient to make a decision based on what they think is material. But in most cases the issue will be irrelevant. But if a patient wants a South Australian intensive care paramedic they will have to travel to SA.  It would not be necessary for a WA paramedic to say ‘you know community paramedics in SA have a different level of training to me’ given that the patient, in this scenario, is in WA.

Although I’m asked to ignore ‘protected titles’ I will make some comments.  Before 2018 paramedic meant whatever the person using the term wanted it to mean.  Once registration came in, it became a specific term.  A ‘paramedic’ is a person registered with the Paramedicine Board as a paramedic.   Other titles remain open to definition – extended care paramedic, community paramedic, intensive care paramedic etc all mean whatever the person giving the title intends it to mean.   If there was insistence on consistency, there would have to be action by the Paramedicine Board being the only national regulator.  And if they did that then new titles could not be invented as people developed new ways to practice.

Conclusion

The inconsistent use of titles across the jurisdictions is not going to be relevant to issues of consent.  Hardly anyone is going to be treated by ‘community care paramedics’ in different states and hardly anyone is going to consider the different training or scope of practice as ‘material’ to their decision.  If it is material, and if the reasonable paramedic would understand that any issue of the paramedics qualification is material to that particular patient then the paramedic would need to honestly inform the patient – eg ‘I know you’re worried about this procedure, I’m trained to do it but it may be that a doctor would be more expert than me and you might prefer to see them’.  It would never be reasonable for a WA paramedic to say I know you’re worried about this procedure, I’m trained to do it but it may be that a paramedic in South Australia would be more expert than me and you might prefer to see them’ because seeing a paramedic from SA won’t be an option. 

Further the issue will only arise if there is a poor outcome.  If the paramedic performs the procedure competently then the mere fact that another paramedic, in another state, would need another qualification before they could use the title, will be irrelevant.

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.