This question appeared as a comment on the post ‘Alcohol and Refusing Treatment’ (3 April 2014, ) but the question warrants its own post.

 Michael, I have a curly question for you. I am a very experienced paramedic, currently working in a remote capacity in remote Western Australia. On my time off I volunteer for the local state ambulance service. I have been told in no certain terms that when I work on the volunteer ambulance that my ALS skills “magically” disappear.

In the ambulance we do have ALS equipment, but I have been told I am not allowed to use it. This is my question, where do I stand if I get a patient who needs ALS support and we are remote without any close ALS support, if the patient has a poor outcome on account of no ALS intervention , where do I stand if the relatives find out that a ALS paramedic was in the back with the patient, but did not use their skills. Can I be held liable??

My colleague Ruth Townsend and I address similar issues in  ‘Crossing the line – the law and ethics of going beyond the wire’ ResponseJournal of Paramedics Australasia (forthcoming).  Pending that paper (which I believe is in the current issue) I’ll address the issues here.

The common law concept of vicarious liability says that an employer must accept the liability for the negligence of an employee (see my earlier post, ‘Qualifications v Experience’ (21 February 2014).   My correspondent tells us he is a volunteer, not an employee.  There is some doubt about whether or not an organisation is vicariously liable for the negligence of a volunteer.  I have no doubt they will be, but I have to concede there is debate (and see the discussion in my book, Emergency Law, (4th ed, 2014, Federation Press)).   Most emergency services legislation provides that volunteers are protected and often provide that if there is any liability it is to be borne by the agency (see for example, Victoria State Emergency Service Act 2005 (Vic) s 42; Health Services Act 1997 (NSW) s 67I).  In WA there is no ambulance service legislation (see my earlier post ‘Legislative compliance for WA Paramedics – what legislation?’ (12 February 2014) so there is no specific Act to look to.

In WA the Volunteers and Food and Other Donors (Protection From Liability) Act 2002 (WA) is relevant.  That Act, in s 6, says ‘a volunteer does not incur civil liability for anything that the volunteer has done in good faith when doing community work.’   If the volunteer would, by the application of the ‘normal’ law be liable, then the organisation for which they are volunteering is liable (s 7).   ‘Community work’ is defined in s 3 and without going through that in detail, I think it is unquestionable that volunteering for St John (WA) would constitute doing community work for a community organisation.   Section 6(3) says the volunteer protection does not apply if, at the time, the volunteer:

… knew or ought reasonably to have known that at the relevant time he or she was acting — (i) outside the scope of the community work organised by the community organisation; or (ii) contrary to instructions given by the community organisation;

With all that background let us now consider the situation that involves my correspondent.  Someone in remote Western Australia rings triple zero for an ambulance. They are not ringing a particular paramedic; they are ringing St John.  St John despatch the ambulance with the crew that they have chosen, trained and equipped.  They turn out in their St John uniform, driving a St John vehicle.  They clearly represent St John.   The corporate entity that is St John cannot turn out except by its staff (including volunteers) so these people are clearly not turning out for their benefit, or because they have been personally asked, but because they represent – they are – St John Ambulance.

St John ambulance owes a duty of care to its patients (Kent v Griffiths [2000] EWCA Civ 25).  They have a duty to provide reasonable care taking into account all the circumstances in their operation including the reliance on volunteers and the distances that apply in WA.  In this case we assume that ‘in the ambulance there is ALS equipment, but the paramedic has been told he is not allowed to use it. The patient needs ALS support and they are remote without any close ALS support.  The patient has a poor outcome on account of no ALS intervention.’   Let’s put that picture in clearer focus – the patient needs care that the person in the back of the ambulance is competent to give, has the equipment necessary to give it, but choses not to.   If you were that person (or their family if they die) what would you do?

Let us assume you want to sue.   You have two options; sue the paramedic and/or sue the relevant ambulance service. The ambulance service owes a duty to their client and its duty is to act reasonably.  They know they are providing services in remote WA and here they have a person who needs ALS support, a person on board who knows how to give it and the necessary equipment, but they don’t because the service has told them not to. Why has the service told them not to?  Is it a proper risk assessment, where they have looked at potential risks, control measures and decided the most appropriate response was to prohibit this conduct.  Or was it some insurance concern; that the service is saying ‘don’t treat as our insurance won’t cover you’?  Whether or not they have insurance does not, however, determine whether they are legally liable.

Let us think about that – there are two risks.  One is that the ALS officer tries to administer some ALS treatment and makes a mistake (not just that there is an adverse or less than good outcome, but there is a negligent mistake that makes the situation worse).  The other risk is that the ALS officer does not administer the necessary care, care that he or she is aware the patient needs, knows how to do it and has the necessary equipment. The risk of an adverse outcome must be higher by not doing something that one knows is needed rather than by doing what one is trained and equipped to do.  Sure there could be liability if there is both negligence and an adverse outcome, but that is less likely than the adverse outcome of not giving the treatment.

(This all sounds familiar to the discussion on doctors and the duty of care – see ‘Doctors as ‘good Samaritans’ – do I have to stop?’ (23 March 2014) and the case of Lowns v Woods (1996) Aust Torts Reports 81-376.  Remember that no-one’s been sued for attempting to help, but there has been liability for not helping.)

The injured patient may also want to sue the paramedic who also owes a duty of care to his or her patient.  They knew what they patient needed, they had the necessary supplies and they didn’t do what they knew was warranted.  Why not? Because their agency had told them not to.   What is their primary duty?  To act in their patient’s best interests or to honour the agencies direction?   The paramedic may be concerned about s 6 of the Volunteers and Food and Other Donors (Protection From Liability) Act 2002 (WA) and that they are acting ‘contrary to instructions’.  Now that section cannot be taken literally if it were the agency could avoid liability by instructing volunteers ‘not to be negligent’.    As with the common law of vicarious liability there would have to be consideration as to what that section actually means and when it applies.

The paramedic can see the patient and may be aware of what the possible consequences of their actions are. Whilst paramedics are not required to volunteer, having done so and having responding and having the equipment at hand a court could ask was it reasonable to withhold the treatment.  As quoted in many earlier posts, the test

… 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. (Wyong Shirt v Shirt (1980) 146 CLR 40, 48)

What is the risk to the patient of withholding the treatment v the risk of giving it?  There is no ‘expense, difficulty and inconvenience’ in giving the treatment if the operator is trained and has the equipment.  There are conflicting responsibilities in particular the responsibility to obey the services instructions but are they sufficient not to administer the treatment if that will have implications for the person’s survival or long term recovery?   A court could easily conclude that a paramedic was not acting reasonably in withholding treatment from someone that needed it, and when the paramedic could administer it, just because someone told them not to.

The paramedic may want to rely on the Volunteers etc Act which says ‘a volunteer does not incur civil liability for anything that the volunteer has done in good faith’ and argue that they acted ‘in good faith’ by following the direction not to administer needed treatment that they were competent to give and where they had the necessary equipment.  In my book I said this about ‘good faith’:

… in California … it was said, in relation to a ‘Good Samaritan’ statute, that to act in good faith was to act with “that state of mind denoting honesty of purpose, freedom from intention to defraud, and, generally speaking, means being faithful to one’s duty or obligation” (Lowry v Mayo Newhall Hospital 64 ALR 4th 1191 (Cal 1986), 1196). The New South Wales Court of Appeal held that acting ‘bona fides’ (that is in good faith) meant that a defendant fire fighter “… did not act from any improper motive – maliciously, from personal hostility, or spite, or dishonesty” (Vaughan v Webb (1902) 2 SR(NSW) 293). In the Australian High Court,McTiernan J, when considering a statutory immunity that applied to the New South Wales Fire Brigades, said that the concept of “good faith” referred to an act that was done “without any indirect or improper motive” (Board of Fire Commissioners v Ardouin (1961) 109 CLR 105, [1961] HCA 71,115).

In summary to act in ‘good faith’ the Good Samaritan must be acting with the motive or intention to help the person in need.  The Australian Federal Court suggested however that there must be more than just honesty and no improper purpose was required, they said there must also be:

… evidence that a real attempt was made to do properly the very thing for which immunity is sought: this may involve following an established system, or set of procedures.(Mid Density Developments Pty Ltd v Rockdale Municipal Council (1993) 44 FCR 290, at 468-9.)

Acting, not in the patient’s best interests, but because of a fear of liability or, more particularly given you presumably don’t think you will be negligent, fear of lack of insurance cover, is not acting in good faith. Acting to protect your position rather than the patient is not good faith.  It was to avoid that (legitimate) self interested concern that good faith type provisions were written!   (Personal liability of the paramedic would be easier to establish if paramedics were members of a recognised, registered heath profession).

So ‘where do I stand if the relatives find out that a ALS paramedic was in the back with the patient, but did not use their skills?’  I’ll try to sum it up with a table, assuming in each case there is an adverse outcome and where the treatment is given, it is given without due care and skill:

 

The treatment is not given The treatment is given
The ambulance service The ambulance service will be liable, it owes a duty to its patients and has failed to allow care to be given by a qualified person with access to the necessary equipment.  Would need to be able to show that the direction was due to a legitimate risk assessment, not to try and avoid liability or remain within the terms of an insurance contract. The ambulance service will be liable for the negligence of its volunteers.  Irrespective of the Volunteers etc Act the patient would and could argue that the service is liable, in accordance with the common law, for the negligence of its agents.
The paramedic The ambulance service will be liable – Volunteers and Food and Other Donors (Protection From Liability) Act 2002 (WA) s 6. 

The paramedic may also be liable.  He or she has taken on the care of the patient and his or her ALS skills cannot magically disappear. You cannot un-know what you know and you have access to the necessary equipment.   It will be a question of what is their duty (given they are not obliged to volunteer) and whether it was reasonable to follow that direction. That in turn would be affected by the patient’s condition, how badly they needed the ALS intervention and the risk of giving the intervention v the risk of not giving it.

May be liable if acting contrary to instructions Volunteers and Food and Other Donors (Protection From Liability) Act 2002 (WA) s 6 but that would depend on the exact terms of any instructions.

 

The biggest legal risk has to be not giving the treatment (assuming that it is of critical importance).   Allowing the treatment only exposes the ambulance service or the paramedic to risk if the treatment is negligently given.   Vicarious liability is to ensure people injured by negligence get compensation.  An employer who uses employees should not put those they injure to the further risk of looking to an employee for compensation when the employer is in a much better position to meet those expenses.  All those arguments apply with equal force in this context.  Without going through all the legal argument, I’ll go out on a limb and say in my opinion, absent gross misconduct, the ambulance service would be liable for its volunteers both if they give the treatment in question, and if they don’t.

So what of the paramedic?  Well there could be liability if they negligently administer the ALS treatment and also if they don’t.   Again the bigger risk has to be not giving treatment that you know is needed and where you have the necessary equipment at hand.  Remember too, that if paramedics want to be recognised as professionals they have to act as professionals.  To go back to my earlier question, a professional’s primary duty is to act in their patient’s best interests.

Would I just administer treatment using my ALS skills?  I would if a person’s life depended upon it or to avoid permanent or long term disability; but short of that I would approach the service and begin negotiations to ensure that they have a system in place to recognise prior learning.  If they are not prepared to do that, as a professional, one would have to rethink whether one was prepared to volunteer.  You cannot simply ‘turn off’ what you know and what you can do (see also ‘Volunteer nurses and their skills’ (12 December 2012 https://emergencylaw.wordpress.com/2012/12/12/volunteer-nurses-and-their-skills/.