Thank you to my colleague, Ruth Townsend, for bringing the case of Dr Dekker to my attention. On 27 April 2002, Dr Dekker was driving near Roebourne in Western Australia. Around 6.30pm on a dark night, as she was waiting at an intersection a vehicle travelling at high speed approached her stationary car. Dr Dekker drove across the intersection allowing the other car to pass behind her. The second car left the road, mounted and embankment and rolled over. According to one report (‘‘Terrified’ doctor guilty after fleeing car crash scene’ Australian Doctor 26 November 2013) one person died in the accident.
Now, eleven and a half years later, Dr Dekker has been found guilty if improper professional conduct for failing to stop and render assistance at the accident (Medical Board Of Australia v Dekker [2013] WASAT 182). Following the accident Dr Dekker and her passenger drove to the nearby Roebourne Police Station and reported the near accident and that the other car may have been involved in a collision.
In 2002 Dr Dekker had no mobile phone, no torch and no first aid kit with her. She asked her passenger what they should do and the passenger suggested that they go to the police, which they did. Dr Dekker reported that ‘At that time, I was [in] a state of shock as well, I think. Yes. Yes. I didn’t know what was happening around me. I had no idea what was happening. I was in absolute shock from the moment of the nearmiss, just before the nearmiss’.
The Tribunal’s reasoning
The matter was heard by the Western Australia State Administrative Tribunal. The matter was determined as if the Medical Act 1894 (WA) was still in force as that was the relevant Act at the time. That Act has since been repealed, it was replaced by the Medical Practitioners Act 2008 (WA) which in turn has been repealed and replaced by the Health Practitioner Regulation National Law (WA) Act 2010 (WA).
The issue under the 1894 Act was whether or not the Doctor was guilty of ‘infamous or improper conduct in a professional respect ‘. In Allinson v General Council of Medical Education and Registration [1894] 1QB 750 it was said infamous conduct in a professional respect “would be [conduct] reasonably regarded as disgraceful or dishonourable by his professional brethren of good repute’. Improper conduct ‘is conduct which falls short of “infamous conduct”. “It is constituted by something less than serious professional conduct that is nevertheless conduct which would reasonably be regarded as improper by professional colleagues of good repute and competency.
The Tribunal found that the doctor’s conduct in leaving without going to check on the occupants of the other vehicle, to determine if there were injuries and whether she could help, and if not the extent and nature of those injuries so they could be reported to the emergency services, was improper conduct in a professional respect. It would have been infamous conduct if she had left the scene and not reported the event at all.
With respect to conduct being conduct in a professional respect, the Tribunal said ‘a medical practitioner’s conduct may be ‘in pursuit of the practitioner’s profession’ even where it does not occur in the carrying out of medical practice, provided that there is a sufficiently close link or nexus between the conduct and the profession of medicine.’ The Tribunal was satisfied that link existed because she admitted that she suspected that there had been an accident and that there was potential for serious injury.
Would failing to render assistance be regarded as improper by other doctors? No other doctor’s gave evidence to answer that question. What the tribunal said (at [39]) was:
It is improper conduct in a professional respect for a medical practitioner who is aware that a motor vehicle accident has or may have occurred in their vicinity and that anyone involved has or may have suffered injury not to make an assessment of the situation, including the nature of any injuries and needs of persons involved, and render assistance, by way of first aid, when the practitioner is physically able to do so, notwithstanding that the practitioner immediately reports the matter to police or other emergency services. It matters not that there is no existing professional relationship between a medical practitioner and the persons involved in the accident. Because saving human life and healing sick and injured people is a core purpose and ethic of the medical profession, and because members of the profession have the knowledge and skills to do so, the failure by a medical practitioner to make an assessment and render assistance when he or she is aware that a motor vehicle accident has or may have occurred in their vicinity and that people have or may have been injured, when the practitioner is physically able to do so, would, notwithstanding that the practitioner reports the matter immediately to police or other emergency services, reasonably be regarded as improper by medical practitioners of good repute and competency, and there is a sufficiently close link or nexus with the profession of medicine.
The impact of that decision
Lawyers look to tribunals and courts for precedents, statements of the law that can be applied in future cases. The most significant precedents come from the High Court of Australia. The High Court sits at the top of the legal tree and its rulings are binding on all lower courts. As one come’s down the judicial hierarchy the precedent value diminishes. The State Administrative Tribunal of Western Australia is not a court and does not establish binding precedents for subsequent courts. But an Administrative Tribunal is charged with administering and interpreting the law for the benefit of the law’s users. Further, now that we have a national system of health registration what a tribunal in one state has to say will be influential in other states to ensure that the national system remains national – it can’t be improper conduct in one state, but not another. Of course the 1894 Act is no longer the Act in Western Australia or anywhere else, but the reasons set out above, could be applied to the current legal regime.
So this is not a decision of the Western Australian Court of Appeal which would be much more authoritative, but it is a decision of the tribunal charged with implementing the relevant laws and its reasoning is likely to be followed elsewhere.
But there’s no duty to rescue?
We are constantly told (or more accurately, I constantly say) there is no duty to rescue. A person is not under a duty to render assistance to a stranger in an accident. This ruling challenges that claim for medical practitioners but we need to make a distinction. When we say ‘there is no duty to rescue’ we are referring to the common law of negligence, that is one cannot be sued for failing to render assistance and Dr Dekker was not being sued for damages. If she was the matter would be in a court, not a tribunal, and the plaintiff would have to show a common law duty of care, and that if Dr Dekker had gone to help, the outcome would have been different. That is not what was happening here. Accordingly this case does not set aside the principle that there is no duty to rescue at common law.
But, the common law does ask what would a reasonable person do in the circumstances, and if it is improper conduct for a medical practitioner to fail to render assistance, then that could assist a common law court to find that a doctor is under a duty at least to stop and see if there assistance is required. That obligation would be compounded by the obligation under the (current) Western Australian Road Rules to render assistance at an accident (Road Traffic Act 1974 (WA) s 54, though that section in its current form was put in in 2007, ie well after this accident, but there was probably something similar in placed in 2002).
This was the reasoning that led the NSW Supreme Court to find a doctor owed a duty of care to render assistance when asked. In Lowns v Woods [1996] Aust Torts Reports 81-376 the court found that provisions in the NSW law that made it unsatisfactory professional conduct by a doctor to fail to render assistance when called upon to do so aided the Court to come to the conclusion that the doctor, in the very specific circumstances of that case, was under a legal duty to assist and was liable for failing to do so when, on the doctor’s own admission, he would have made a difference to the outcome.
People, including health professionals, report a fear that if they stop to render assistance they may be liable so, it is believed, the better course of action is not to stop. So far there are no cases of medical or other health professionals being liable for stopping to render assistance and this case, along with Lowns v Woods, have two cases where professionals have been liable (one for improper professional conduct, the other liable in negligence) for failing to render assistance. One might perceive a trend. Along with good Samaritan legislation that applies in all states and territories (thought the exact terms vary) it would seem that the policy of the law is that doctors are expected to get out and help when they can.
So why didn’t she help?
Dr Dekker did not stop and help because she did not realise there had been an accident, or because of fear of legal liability or because of fear for her own safety, and I think that’s part of the problem both for her, and for the legal system generally; let me explain.
Dr Dekker is in a near miss accident and is very shaken up. We might all accept that, for that reason, she is not thinking clearly and she goes to the police. She may also, reasonably I would have thought, have decided absent a telephone, torch or first aid kit, she was better off going to the police to summons help. She had a passenger and there is no explanation of whether or not that passenger could drive so no discussion about whether or not the passenger could have gone to get help and left Dr Dekker there.
No, the problem here is procedural. Dr Dekker gave different explanations of what happened. Five days after the accident she gave a statement to police where she said “As a medical doctor, I know there would be a bad injury and I know it was a waste of time so I go to police so they can get help” and her assessment that there would have been a bad injury was her “instinct as a doctor”. This contradicted later evidence, in a district court matter, that she was not sure whether or not there had been an accident. In her evidence before this Tribunal the doctor gave evidence about her knowledge of alcohol and drug abuse in the region and reports of violence. At the hearing it was conceded that statements about drug abuse and violence in Roebourne were not relevant, and statements about another town were even less relevant.
More importantly, despite giving evidence about alcohol and drug fueled violence, she admitted that was not what she was thinking about when she decided to drive off, so the material in her statements, written many years after the event, did not reflect or say that this was what caused her to drive off. Even if she had such fears, the Tribunal said (at 44):
In any case, even if the practitioner had been thinking of these issues [alcoholism, drug use and violent behaviour], they would not have absolved her from her professional obligation to make an assessment and render assistance to the occupants of the second vehicle. Furthermore … it was not reasonable to expect that the occupant or occupants of the second vehicle ‘would have been agitated and might have posed a risk to the [practitioner’s] personal safety’, given that the practitioner was aware, by instinct as a doctor, that they had suffered ‘a bad injury’. Of course, if the occupant or occupants of the second vehicle had threatened violence towards the practitioner, the practitioner would have discharged her professional obligation and could have driven to the police station.
It’s really important to bear this in mind and not react by claims that the Tribunal should have accepted that a woman, out of town in WA, on a dark night, should go to help even though she feared violence, because all that fear was suggested in evidence at the 2012 hearing, it was not what she said to police 5 days after the accident nor in the District Court three years after the event and in these proceedings she did not say that a fear of violence was what stopper her acting: “she conceded in crossexamination that these were not matters about which she was thinking at the time when she made the decision to leave the scene after the ‘near miss’ incident.” It does appear that the reference to alcohol, drugs and violence was an afterthought rather than an actual motivator.
The consistent story was that having been involved in a near miss she was shaken up and distressed. The Tribunal said (at 43)
The fact that the practitioner was ‘in a state of shock’, ‘petrified’ and ‘freaked out’ after the ‘near miss’ incident is hardly surprising in a case where a person is involved in an accident or in a nearmiss situation. However, the practitioner was not simply ‘a shocked and distraught woman’, to quote Mr Morrissey’s submission, but rather a member of the medical profession who had gone through a no doubt frightening nearmiss experience, but was thankfully physically unharmed, and was aware that another vehicle had or may have crashed in her vicinity. Because she is a member of the medical profession, and therefore a person with medical knowledge and skills to save life and to heal the sick and injured in the community, her professional duty required that she overcome or at least put aside the shock and provide assistance to the occupant or occupants of the second vehicle. Although the practitioner’s ‘shock’ may be relevant in relation to penalty, it does not have the consequence that her conduct would reasonably be regarded as anything other than improper (or, had she not immediately reported the matter to police or other emergency services, disgraceful or dishonourable) by professional colleagues of good repute and competency.
That, I think, is the interesting and controversial point. Should doctors be expected to ‘overcome or at least put aside the shock’? It may be reasonable to expect doctors to be able to deal with many situations that most of us could not in their professional setting, but is it a reasonable expectation when they themselves have been involved in the incident, or near miss, and their own life has been put at risk? Again we may expect that if they are Australian Defence Force practitioners on the battle field, but radiologists driving home from the tip?
Further the issue was whether or not her ‘professional colleagues of good repute and competency’ would, in the circumstances, consider her decision to go to the police as improper. The Tribunal thought they would, but on what basis the Tribunal could make that decision is not explained.
Legal lesson
There are two significant legal lessons from this decision. They are:
1. This adds to the weight of authority that doctors are under an obligation to assist when they are aware that their professional assistance is required and ‘when the practitioner is physically able to do so’. (And one can still imagine lots of circumstances including conflicting duties to others where a practitioner will be able to argue that they were not able to assist); and
2. Tell a consistent story – and that’s a process problem – this event has taken 11.5 years to resolve (and it’s not over yet, she’s got to go back to the Tribunal in February 2014, nearly 12 years after the event, to find out what her ‘penalty’ will be). Not surprisingly stories and recollections change, but trying to tell the story that you think will help (whether it is Dr Lowns saying he would have gone to help if asked and he would have been able to administer IV Valium even when experienced paramedics could not; or Dr Dekker hinting at fears of violence without actually saying that is what concerned her and then admitting it did not) really doesn’t help. Litigation lawyers forget nothing and are experts at turning up everything, so they will find the statement written in 2002 and compare it to the one in 2011 and point out every difference.
Australian Emergency Law 
Whilst the Dr may not have a legal obligation to stop, what aboit the moral obligation? I am also under the impression, and being that I am from WA, there is a law which says you cant leave the scene of an accident. The Dr/driver may not be the root cause, however surely the driver would have stopped. Maybe I am seeing this incident through my own perception, however, I woild suggest most readers of this quality blog, would have stopped to render help.
Sorry, I agree with the medical board.
Terry, what the tribunal found is that she did have a legal obligation, but that arose as a professional responsibility rather than an obligation at common law, which is not something the tribunal had to decide. Yes there are provisions about stopping at an ‘incident’ and rendering assistance, see Road Traffic Act 1974 (WA) s 54,which refers to a driver involved in an ‘incident’ not an accident so would apply here, but as I noted in the original post that section, at least in its current form, was not the law in 2002, it was put in in 2007. The Tribunal wasn’t concerned with that provision but a common law court, considering civil liability, would and could find that a doctor, like anyone, owes a duty to provide assistance at an incident in which they are involved so there could be civil liability if one didn’t provide that assistance and if it could be shown that it would have made a difference.
It’s true I’m sure most readers of this blog would stop to help and would certainly stop to help if they came across an event, but what if they are actually in the event, and are shaken up by the event. It’s a common issue, how much should we judge ‘heat of the moment’ decisions and take into account the circumstances? Very different I think if she drove up and observed there had been an accident as opposed to being nearly wiped out in the accident. Given that is what happened, if she really was panicked, upset etc, and it’s dark, and she’s got not equipment, and no mobile phone, is it so unreasonable that you would think her action ‘improper’ even if you do not think it ‘ideal’?
I understand that Drs don’t even have to take the hypocratic oath anymore. Regardless the tribunal seems correct on several accounts. Primarily her actions or lack thereof as a professional (medical doctor) in this case.
In my situation I work with a private paramedic service and our charter as well as government approval, requires our staff, when on duty, to , in similar situations, investigate, offer to and render assistance if so required. Officers also are required to follow our code of ethics (which was required by the government) to follow this principle among others, and this even extends to their off duty status, whilst still employed with the service.
If they attend an incident whilst off duty, and then notify immediately after, our duty officer, a report is made and logged.
Jason, do you think there’s a difference when your involved in the accident? It’s certainly one thing to expect a doctor or paramedic who comes across an accident to be able to function, but what about when they’re in the accident?
It is certainly an interesting position she has found herself in. As a medical practitioner this lady would be used to working within a surgery or hospital environment.
To expect a doctor or nurse to work in the outside environment in the dark, no torch no phone is a questionable expectation. This is the normal working environment of the paramedic, and it does take some time to get used to these working conditions.
Add the working environment and the near miss that she had just experienced, it would be a difficult decision she would have to make. The one she made, is the one she believed best at the time.
As you say, she has done herself a disservice by changing the story over time. But the Tribunal has also done the case and the doctor a disservice by the excessive amount of time it has taken to deal with this.
I now wonder how this will impact on future actions of doctors in relation to responding to an emergency situation which is near them?
According to the report in Australian Doctor she was/is a radiologist so she’s probably not that used to actually performing interventions.
Ruth has pointed out something interesting – this doctor, Dr Dekker, was convicted of causing this accident – see ‘Doctor fined for dangerous driving causing death‘ ABC Online, 14 December 2005. In one sense that puts the whole story in a different light – we expect a person involved in an accident, whether they are a doctor or not, to stop and provide assistance to others in the collision (See again Road Traffic Act 1974 (WA) s 54). But what’s interesting here is that the Tribunal did not address this issue at all – that is there is nothing in the Tribunal that refers to the accident being her fault. The Tribunal acted on an agreed set of facts, according to those facts:
That is not consistent with the accident being her fault and that may suprise some. If she was convicted in the District Court the Court must have been satisfied, beyond reasonable doubt, that she was guilty but that court was acting under different law, doing a different task so the finding of guilt and the evidence before the Court is not admissible here so the Tribunal had to act on its own version of the facts. These facts were not contested but agreed by the parties.
In light of my post and some comments I’m now going to enter the world of speculation; I have no evidence for what I’m about to say but it seems like a possible explanation. I would not be surprised if Dr Dekker really was very scared in the situation but when she went to the police she may have been unwilling to admit that fact for fear of being seen as a coward, or unprofessional or even racist (and I say that not knowing anything about either Dr Dekker or those involved in the accident) so she gave the story that she realised that there was an accident and that people may have been hurt but this was the best option. By the time it gets to the Tribunal she’s now stuck, she wants to say she was scared but is now stuck with her earlier statement and evidence in the District Court (the District Court trial is mentioned in the Tribunal’s decision, but not who was on trial or what the issue was). Now it’s easy when she implies she was scared to cross examine her on the earlier versions and again she faces either admitting to being scared and/or a liar so she’s caught in her own trap. It’s not an uncommon story and certainly confirms that if you are going to answer police questions, tell the truth, not a story that you think will help (of course the alternative is not to answer police questions).
Now, as I say I don’t know if any of the above is true, but it seems to me to be a likely or at least possible explanation of what happened. On the other hand, none of it changes the effect of the Tribunal’s findings as the Tribunal was working on the agreed facts – where it was not her fault – and considered her obligations in that context.
In response to Dave’s comment (above) who asked “I now wonder how this will impact on future actions of doctors in relation to responding to an emergency situation which is near them?” Mr Morrisey, the lawyer for Dr Dekker said (at [36]) “In the circumstances which faced the [practitioner] on the night, there was no positive duty on the [practitioner] to act as a medical practitioner to other unknown people and any finding against the [practitioner] in these proceedings will send a message to other medical practitioners that they are required to act positively, treat or help in circumstances similar.”
I think his submission was trying to say that a finding would be inconsistent with the common law, that is a finding against Dr Dekker “will send a message to other medical practitioners that they are required to act positively, treat or help in circumstances similar” when the common law did not require that. But putting aside Mr Morrisey’s intention (and we only have an extracted quote, not his full submission) his conclusion that “these proceedings will send a message to other medical practitioners that they are required to act positively, treat or help in circumstances similar”. The implication is that this finding should encourage doctors to come forward and help. As I’ve noted doctor’s may be afraid they’ll be liable if they stop and help, but the weight of authority (if two cases is ‘weight’) is they get into much more legal trouble for not helping than they will if they do help.
I’m flip flopping a bit either way on this one.
Having lectured for student Paramedics, including nurses transitioning across, I’ve seen first hand how some can be overwhelmed by a scene before them.
It’s one thing to have a patient come into a clean environment and be treated. Its another to do the same on scene- it can be a total sensory overload. And then it’s another to witness or nearly be involved in the scene itself.
We all know that shock can do some interesting things and a rational person can become totally irrational and act way out of character or how we’d expect them.
I think there is a bigger picture to this story. At first instance she was charged and convicted of dangerous driving causing death. (unreported decision). It was successfully appealed and the conviction was quashed. (reported) Thus why it was never mentioned at the Tribunal.
There are conditions and reprimands on Dr Dekker’s registration that appear to be from another situation, whereby the Medical Board have come to a decision about previous conduct. These are obtained through public access at AHPRA.
There will obviously be a balancing of interests when determining the duty to stop and render assistance. A practitioner will not be reprimanded for failing to conduct CPR on a shark attack victim whilst in the water.
Dr Dekker will no doubt appeal and may be successful this time too. I doubt whether the high threshold of infamous and improper conduct will apply to the current code of conduct in the National Law. This will not help Dr Dekker though.
Like I said before, there is a bigger picture here.
I too looked up the Dr as well. I thought the same as there is a list of repremands, including no patient contact allowed. It would seem there is more to this case.
I notice there was mention above regarding shark attack and doctors. Part of my work involves all shark attacks in Australia from a forensic attack point of view. Doctors have been involved in a few first response interventions. From my own observations and investigations, there is a big community assumption that Doctors are good at first response. I think the law should reflect the option for Doctors to decide if the care required is within thier expertise. Alcohol could also be a determineing factor in rendering care. As the law states, rendering medical assistance can not be done when inder the influence of Alcohol.
nwa and Terry have added some great information; indeed Dr Dekker was ultimately acquitted of causing the accident (see Dekker v WA [2009] WASCA 72 ). It appears that the prosecution case was that the oncoming car lost control when Dr Dekker’s vehicle. Police who originally attended the scene had identified various tyre marks on the road with yellow paint but when an expert crash investigator attended 4 days later some of the yellow paint had come away. The traffic investigator marked tyre marks with pink paint and based on what he’d observed he concluded the vehicle lost control much closer to the intersection and consistently with Dr Dekker’s car pulling out in front. When his observations were compared with those made and photographed by the first officer 2 out of 3 appeal court judges accepted that the evidence was inconsistent with the view that the car lost control close to the intersection but had in fact been out of control as it approached it, consistent with Dr Dekker’s version. It appears that no one at trial, ie neither the Crown Prosecutor or the defence lawyers, appreciated the significance of the difference between the two sets of observations but when that was identified it was, in the court’s view, evident that Dr Dekker’s conviction was a miscarriage of justice and so her conviction was set aside.
That also means that the agreed set of facts, handed up to the Tribunal, were consistent with the findings in the Court of Appeal.
As to “whether the high threshold of infamous and improper conduct will apply to the current code of conduct in the National Law” that’s an interesting point. The National Law governs the registration of all health professionals and provides that conduct may be ‘professional misconduct’, ‘unsatisfactory professional performance’ or ‘unprofessional conduct’. Unsatisfactory professional performance “means professional conduct that is of a lesser standard than that which might reasonably be expected of the health practitioner by the public or the practitioner’s professional peers,” Professional misconduct is “unprofessional conduct … that is substantially below the standard reasonably expected of a registered health practitioner …” (see HEALTH PRACTITIONER REGULATION NATIONAL LAW (WA) ACT (WA) 2010 – SCHEDULE, Part 1, cl 5).
According to the Medical Board of Australia’s Code of Conduct (cl 2.5) “Good medical practice involves offering assistance in an emergency that takes account of your own safety, your skills, the availability of other options and the impact on any other patients under your care; and continuing to provide that assistance until your services are no longer required”.
I would have thought that definition was sufficiently close to the 1894 Act that a tribunal applying the National Law could also conclude that:
It’s true a doctor wouldn’t be reprimanded for not treating a shark attack victim still in the water or when there is a fear of safety. Remember however that Dr Dekker did not say that she feared for her safety either in her immediate report to police or in her evidence to the tribunal though that was hinted at or implied, but in fact she conceded that was not her thought at the time. Further the tribunal was of the view that some abstract fear, in this case, of violence was not enough. If she’d got out and found that those in the car were belligerent or threatening then that could have justified leaving the scene, but it did not justify not getting out and looking to see if there had been an accident or that someone had been injured.
As noted the code of conduct, as suggested by Terry, does “reflect the option for Doctors to decide if the care required is within their expertise” and there are lots of other factors that may mean a doctor cannot assist including if they are affected by alcohol or caring for others, eg can a doctor who is out with his or her young children leave them to attend to a person injured in an accident? It was these concerns that lead Mahoney J to dissent in Woods v Lowns. In that case Kirby P and Cole J found that the doctor was under a common law duty to render assistance in an emergency. Mahoney J, on the other hand, said:
and later
In other words if doctors were under a obligation to attend it should be up to the professional standards bodies (relevantly the WA tribunal) to determine what was required in the circumstances. Mahoney J was however dissenting in that case and Kirby and Cole accepted that the expectation upon doctors could and did translate to a common law duty, but it remains the case that there will be ample room, in particular cases, to argue that a doctor could not attend or help for whatever reason.
To return to Terry’s point, and to Dr Dekker, the law may well allow that a number of factors are taken into account, but what the Tribunal was concerned with here I think was that Dr Dekker didn’t even look. Had she got out, observed the accident and the nature of the injuries and decided she couldn’t help then going to the police may have been sufficient, but she didn’t do that. As the Tribunal said
And later
So her primary obligation was to get out and check and help if she could and I think that reflect’s Terry’s view that “the law should reflect the option for Doctors to decide if the care required is within their expertise” but they can’t decide that if they don’t get out and look, particularly when based on their own expertise (as Dr Dekker said) she was already of the view that the occupants of the other car had probably suffered serious injury.
My paramedical colleagues when driving to and from work often cover their uniform tops with a non-descript tee shirt or like garment. They argue that if they see an accident or collision, they will not be identifiable as paramedics and thus will not be called upon or have an obligation to render assistance. What you state here is that they may indeed have that obligation even though they attempt to disguise their paramedical identity.
Or is the onus to assist legally (if not morally) different as paramedics do not hold professional registration in any state or territory in Australia at present.
George, thanks for your comment. My first response is to wonder why paramedics would want to drive past an accident or collision and not render assistance. Why do they want to be paramedics if they aren’t willing to help in those circumstances?
Putting that aside, Dr Dekker’s case was one of professional standards and the expectation of medical practitioners as reflected in the legislation. In Western Australia there is no ambulance legislation and nationally paramedics are not (yet) registered health professionals. In Woods v Lowns the duty was found to be a common law duty but it was very much informed by the professional obligations set out in the relevant medical practice legislation. In the absence of professional registration paramedics are unlikely to owe that sort of duty. The issue for courts, when dealing with paramedics, is that who is a paramedic is largely undefined (but see Health Practitioner Regulation National Law (South Australia) (Protection of Title—Paramedics) Amendment Bill 2013 (SA) (29 October 2013) and ‘New law for ambulance services in Tasmania – Update‘ (7 September 2013)) as is their scope of practice, so it will be difficult to set out what can be expected from a ‘reasonable paramedic’ when the term paramedic can mean anyone.
On the other hand, in Woods v Lowns, the trial Judge, Badgery-Parker J said:
Today, particularly given university education of paramedics, education that is funded at least in part by the public purse, that paramedics are joining or have joined that ‘relatively small group’ and that they should be expected to use their publicly acquired skills in the public good – in short that is why we train paramedics. That argument has its problems (see above) but will be much stronger if and when paramedics are registered health professionals. In the meantime, my post ‘Who to treat? A question for St John first aiders‘ (30 June 2013) may be of interest on the issue of duty to treat; and I also provide a link to a paper I wrote – ‘Doctors, the Duty to Rescue and the Ambulance Service‘ that appeared in (1999) 10 Current Therapeutics 92-95.
I have been a medic paramedic nurseing for a long time. To be fair, those that cower behind a Tshirt, in my experience, are in the wrong job. Time to retire.
I am not wishing to inflame here. The only legal point I would add is, our scope of practice is reduced outside of the hospital or ambulance. A Doctor can still use thier full scope. As for university,…. a degree in paramedicine is like the nursing degree…real learning starts from there.
According to the West Australian, Dr Dekker has won the right to appeal this decision – presumably to the Supreme Court, so there is more to come on this story – see ‘WA doctor can appeal after leaving crash‘ (November 21, 2014)
Common sense prevails…..[2014] WASCA 216
A finding of fact by the non-medical members that Dr Dekker’s conduct would be regarded as improper by professional colleagues in 2002, was made in the absence of any expert evidence to that effect. [89]
When you have tribunals made up of non-practitioners, you are bound to have a skewed view. There are procedural issues relating to the non-practitioners conduct. They are not taught to understand how to make a decision, consider relevant considerations and discard irrelevant considerations. This is the real issue and needs to be resolved by way of reform. I am sure there are other decisions that have been made erroneously as a result of this type of tribunal conduct.
The Tribunal’s decision was set aside and instead the Medical Board’s application against Dr Dekker for improper conduct in a professional respect was dismissed for want of evidence. Given the lapse of time since the occurrence of the underlying events it was not considered appropriate to remit the matter.
Thank you for that reference; I’ll make the court of Appeal’s decision the subject of a commentary in the next few days.