Today’s correspondent asks:
Does doing overtime and double shifts etc expose the healthcare professional to no support from their employer and/or professional indemnity protections when errors are made, especially medication errors or critical procedures gone wrong? Does having a vehicle accident due to fatigue or lack of concentration after a long shift potentially affect insurance or TAC coverage?
I am an ED nurse and working extra hours is very common, whether that be staying back longer or even doing double shifts (07:00-15:30, plus 15:30-22:30). Sometimes nurses will work 07:00-15:30, then return for the nightshift at 21:00-07:30. Doctors often work long hours also and may work well onto the night before returning the next day.
Are we jeopardising public indemnity insurance coverage with these work practices?
There are in fact lots of different issues here; and I’ll respond to them as I see them.
Professional indemnity insurance (PII)
PII is there to ensure that a person who is injured due to a health practitioner’s negligence is compensated. It therefore applies when a practitioner has made an error. If a doctor, nurse or paramedic is overtired and makes a mistake the insurer cannot avoid liability as that is the very liability the insurer promises to cover.
There is another point here. If the practitioner is an employee, then it is the employer who is at least allowing, if not asking, the practitioner to work those hours. The employer will be vicariously liable for the negligence of an employee but will also be liable for its own negligence in not having systems in place to ensure that reasonable care is delivered to patients, eg by not having overtired practitioners in the ward. If it fails in its duty to its patients, then it will be liable and again it’s insurer will necessarily meet that liability.
Where a person is not an employee, eg a doctor with an honorary appointment, then one would need to read the terms of any PII policy but it is extremely unlikely that any insurer could avoid liability in the circumstances described. For more detail of what is covered and what is not see for example https://www.aondirect.com.au/sme-talk/risk-insurance/comprehensive-guide-to-professional-indemnity, in particular ‘What does Professional Indemnity Insurance cover?’ and ‘What doesn’t Professional Indemnity Insurance cover?’
TAC (Transport Accident Commission)
Reference to TAC tells me that this question comes from Victoria. The TAC covers the motor accident insurance scheme in that state. All states have compulsory motor vehicle personal injury insurance, and the schemes provide benefits for all people injured in motor vehicle accidents including the driver at fault. Again, they are intended to ensure that people are compensated to the insurer cannot avoid liability because the insured was negligent, that is the very liability it is there to cover.
The Transport Accident Act 1986 (Vic) s 109 says that the owner of a registered vehicle must pay the transport accident charge (in effect, a premium). In return the TAC is to ‘indemnify’ ‘the owner or driver of a registered motor vehicle in respect of any liability in respect of an injury or death of a person caused by or arising out of the use of the motor vehicle in Victoria or in another State or in a Territory’ (s 94). To indemnify means that the TAC must wear all the liability – the driver is not liable to pay anything, it is all managed by the TAC (see s 94(10)). The fact that the driver is driving home after a double shift and has a collision won’t affect the indemnity provided by the TAC.
Subject to some exceptions (s 39), the driver at fault is entitled to compensation (s 35). One of the exceptions is where the driver ‘is convicted of an offence under section 318(1) or 319(1) of the Crimes Act 1958 …’. Those offences are culpable driving causing death (s 318(1)) or causing death by driving ‘at a speed or in a manner that is dangerous to the public’ (s 319(1)). A person who attempts to drive knowing that they are overtired may well be guilty of one of those offences – driving tired is driving in a manner dangerous – if they crash and as a result someone dies. In that sense the overtired nurse, doctor or paramedic may lose the benefit of compensation under the TAC scheme but that does not mean that they are not indemnified against any claim by the other people killed or injured in the accident.
The Act does allow for an action for damages alleging negligence that may see higher damages paid than under the TAC scheme (s 93). If the tired driver of the vehicle is injured and wants to claim that another driver was at fault, their decision to drive whilst tired may amount to contributory negligence and could reduce any damages that they could claim.
In short being tired may see a person lose their entitlement to benefits under the TAC scheme, but it does not mean that they are not indemnified against claims by any person who they kill or injure.
Property insurance
As for insurance against property damage ie the insured’s car or someone else’s, you would need to read the terms of any relevant insurance policy to see what it says. Taking as an example the product disclosure statement issued by the RACV for their ‘Complete Care Motor Insurance’ policy says that a driver is not covered if ‘you or the driver of your vehicle … were engaged in a wilful or reckless act while driving the vehicle’. Whether driving after a double shift amounts to a ‘wilful or reckless’ act would depend really on how tired the driver felt when they got behind the wheel. It might be if they were falling asleep at work and someone senior said ‘don’t drive home, there’s a room there, go in and have some sleep’ and the person refused that offer.
Criminal law
As noted, driving when you know you are too tired to drive may amount to a criminal offence – see the discussion in the post SA Ambulance officer ‘not guilty’ after fatal ambulance roll-over (December 5, 2020)).
Professional responsibility
A registered health professional would have to consider their professional responsibilities when considering whether to work a double shift balancing the health care needs of the patients against their own, honest assessment of whether they are fit to continue working. Just as any practitioner must consider whether they are fit for duty or whether they are affected by illness or the side effects of medication so too it is incumbent on a practitioner to consider whether they are too tired to safely perform their duties.
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.
Australian Emergency Law 
OFFICIAL
Hi Michael,
Given that the query is related to Victoria I think you may have overlooked a change a few years ago to the Crimes Act, which essentially puts fatigue in the same bracket as drink driving when it comes to Dangerous Driving or Culpable Driving causing death or serious injury.
And unlike being able to measure BAC, there’s no “measurable” for fatigue. So in ambulance & particularly related to my on call locations the question or conversation I have with team members is whether if the highway patrol subpoena their time sheet could they defend the question from the prosecutor, “Here’s a copy of your time sheet. Please confirm it’s correct.” Then “Do you think having worked 21 hours in the last 24 hour period before the crash, is it probable that you were fatigued?”
Ambulance Victoria has come under a lot of scrutiny from Worksafe following the Myrtleford rollover. It will be interesting to see how the on call rosters survive this. I believe there’s a position on workload on call about to come out.
When it comes to state of knowledge, it’s hard for nurses and paramedics to deny knowledge that being awake for 17-18 hours is variously described in many studies to be equivalent to being over 0.05% BAC.
I think the risk your original enquirer on the email below should be more worried about is how much jail time they want to do if they microsleep on the way home from their shift and seriously injure or kill a pedestrian or occupants of an oncoming vehicle/vehicle at intersection if they have a microsleep or nod off.
While their employer might wear some of the blame, their employer will probably successfully argue (particularly in AV’s case where branches have bedrooms) that the employee should have managed their own fatigue prior to driving.
That is the bigger issue for me out of this nurse’s email question than the negligence issue.
Cheers
Dave
Hi Dave
I did mention the offences of ‘culpable driving causing death (s 318(1)) or causing death by driving ‘at a speed or in a manner that is dangerous to the public’ (s 319(1)) and that a person who drives fatigued may be guilty of those offences. As far as I can see that is not set out in the Crimes Act 1958 (Vic) but the case law has come to that conclusion and I referred to my post at https://australianemergencylaw.com/2020/12/05/sa-ambulance-officer-not-guilty-after-fatal-ambulance-roll-over/ where the relevant case law is cited.
In that South Australian case the accused was found not guilty but he had been suffering from undiagnosed sleep apnoea. The judge said:
“On the whole of the evidence, I am not satisfied that the accused’s driving was objectively dangerous or that a reasonable person in the situation of the accused ought to have realised that he was so tired or fatigued that to continue driving in that condition was a danger to the public, given the real risk of falling asleep. This is not a case where a reasonable person in the situation of the accused ought to have realised that he was at risk of falling asleep because he had some direct warning of drowsiness or sleepiness, or because of the length of time he had driven without rest, or by reason of his lack of sleep in the preceding hours or days, or because of the conditions under which he was driving. I have reached that conclusion for the following reasons.”
Unless you can point me to a section, I cannot see any changes to the Crimes Act, it is developments in the case law that are relevant. But, as you say (and as the judge quoted above said) the issue is quite different where the driver knows they are overtired and I gave the example of someone ‘falling asleep at work and someone senior said ‘don’t drive home, there’s a room there, go in and have some sleep’ and the person refused that offer’. So I agree a paramedic who has the benefit of a room where they can get some sleep may be in some difficulty if they chose to drive home after a long shift.
As I noted in my post driving whilst fatigued may be a criminal offence and whilst you can insure against civil liability and rely on the vicarious liability of your employer, there is no vicarious liability for criminal offences – your employer won’t go to gaol on your behalf – so I do agree (particularly given my conclusion that they are not losing their insurance protection) that the bigger issue is criminal liability. And I might add that makes sense, tort or civil liability is intended to put the injured party back in the position they would have been but for the negligence of the defendant. It is not intended to punish the defendant. So the insurance ensures that the injured person is able to recover but the punishment of the defendant, for their wrongdoing, is left to the criminal law.