This question comes from a volunteer first aider who says:

… When phoning 000 for ambulance assistance the operator (ambulance call taker) has a standard line of questions and comments to address e.g “don’t move the patient, don’t splint fractures, don’t give anything to eat or drink”.

My qualification [volunteer first aider (Advanced Responder qualified)] authorises me to splint fractures, apply a cervical collar and move a casualty on/off a spine board if necessary. If I was presented with a situation where I elected to utilise for example, any of these skills, to provide a level of patient care and ambulance assistance was requested, the ambulance call taker would inform me as above – “don’t move, don’t splint etc.”

If a casualty decided that there may be an avenue to pursue some legal challenge regarding their treatment and I had splinted a fracture or moved the casualty, disregarding the advice of the ambulance call taker – how would I be situated legally. I imagine if a challenge was mounted, the ambulance coordination centre’s recordings could be used as supporting evidence.

I await your thoughts and comments.

The principal point is that, believe it or not, the law and in particular courts, are much more concerned with substance over form; in context they will want to know whether your conduct was reasonable in the circumstances, not whether it complied with a direction or not. Let me explore that issue in more depth.

First this issue will only be relevant if there is an adverse outcome. If the patient’s condition is no worse, or better, given your actions the point is, as we lawyers would say, ‘moot’ (academically interesting but no practical importance). So let us assume that your action makes the situation worse. I can imagine three circumstances where that would happen:

1. You provide treatment that is not indicated by the patient’s condition and so make the situation worse;

2. You provide treatment that is indicated by the patient’s condition but do not do so in a reasonably competent manner and so make the situation worse;

3. You provide treatment that is indicated by the patient’s condition, you do so in a reasonably competent manner but there is some inherent risk that occurs (eg in Ambulance Service of NSW v Worley [2006] NSWCA 102, the patient was given adrenaline as required by the treatment protocol but suffered a known, but rare adverse reaction).

In any of those three cases, following the triple zero call taker’s instructions would have avoided the harm; but does that make the action ‘negligent’?

The first scenario is negligent regardless of the triple zero call taker’s instructions; that is one is negligent for providing dangerous treatment that is not indicated by the patient’s condition, so assume you are qualified to administer some drug that has the potential for adverse side effects, you administer it when it’s not indicated (and you knew, or should have known it was not indicated) and the side effects occur, then your negligence lies in administering the drug, not in ignoring the triple zero call taker’s instructions.

The second scenario is the same as the first; if you negligently administer indicated treatment that is where the liability will arise.

The third scenario suggests no negligence, so the only point a plaintiff could rely on would be ‘if you’d done what you were told, this bad outcome would not have happened’ but that only goes to the issue of whether the defendant’s actions (ie your actions) caused the harm, not whether they were reasonable or not.

The question of whether or not one’s actions are ‘reasonable’ depends upon all the circumstances; circumstances that the call taker cannot know. To go back to the words of Mason CJ in Wyong Shirt v Shirt (1980) 146 CLR 40 (at page 48; words that have been quoted often enough on posts on this blog):

… the reasonable man’s response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have.

Let us assume one is faced with a person with a broken leg and the question of whether or not it should be splinted. Going back to my days as a first aid instructor/examiner I would have advised that if the patient was not in danger, on a stable surface, comfortable, circulation was not compromised and an ambulance was reasonably close there was no need to splint the leg (particularly in the absence of any effective pain relief). If those things were not true, however, then splinting was the appropriate treatment.

Making those decisions requires someone on the spot to assess the patient and to consider their own abilities and resources and these are things the call taker cannot do.

The ambulance service must (or should) also have done a risk assessment and thought about the issues identified by Mason CJ. It is likely (and not unreasonable) that they came to the conclusion that the risk to the patient of being moved by a person who does not know what they are doing it pretty high, their call taker cannot know who they are talking too and may take a call from anyone ranging from an experienced emergency doctor to an 8 year old child. They cannot however identify who is on the phone or develop instructions for all sorts of people so they produce a set of instructions that they give to everyone; including volunteer advanced responders. The reality is, however, any instruction that says ‘always splint’ or ‘never splint’ cannot be reasonable as it doesn’t allow the sort of judgment that Mason CJ, above, calls for.

So if you’re an advanced responder, or in any fact anyone, you have to make a judgment call. Even the unqualified who is told ‘don’t move the patient’ but thinks ‘where that person is located is too dangerous and I have to move them’ would not be negligent simply because they ignored the instruction. The instruction is just one factor that would be considered in asking whether or not their belief, that they needed to move the patient, was ‘reasonable’. For example, assume an unqualified person describes the scene to the call taker who asks relevant questions about whether, say, the vehicle involved in the collision is on fire, whether the road can be blocked etc and then advises ‘there is no need to move the patient’. That person may have no reasonable grounds to believe it is necessary to move the patient and if they do a court may well accept that was ‘unreasonable’. But, assume this time the call is made, and then the vehicle does catch fire, at that point the advice ‘not to move the patient’ is overtaken by events; the fact that the call taker, earlier, said ‘don’t move the patient’ is irrelevant in the changed circumstances.
So now move to my correspondent. The call taker has said ‘don’t splint the patient’ but you determine that their circulation has been compromised and your training tells you that splinting is required. Splinting the patient, even though the call taker said not do, would not be negligent whereas failing to do so, even when you know the treatment is indicated, just because someone else said not to, could be.

Having said all that, if I was the lawyer for the plaintiff, and there had been an adverse outcome, and if I thought of it, I would certainly ask the question that you shouldn’t have done ‘x’ if you were told not to. I would ask that question because if, given my three scenarios, you had followed that advice the adverse outcome would not have occurred; but just because you are asked the question does not mean you will not have a perfectly reasonable answer.