A correspondent has brought to my attention a case from the UK where paramedics are registered health professionals. My correspondent says:
An interesting case has recently been decided in the UK by the HCPC. The case essentially boils down to a Paramedic ‘refusing’ an allocated call, the reasons for this refusal remaining unclear (and open to interpretation depending on who’s account you read).
There has been extensive media coverage in the UK, almost all of which has focussed on the refusal by the Paramedic to attend the call.
On the flip-side there has been some, mainly social media, comment by those in various services on the increasing pressures on individual ambulance crews, control centres and response time targets. They raise the issue of health and safety, and risk assessments. They make the point that paramedics are increasingly administering medications which can have harmful side effects, carry out invasive procedures which carry considerable risk, and it may be entirely appropriate that a paramedic refuse a call based on their level of perceived tiredness.
Interestingly some social media comments has also focussed on the reports that the patient then waited a further 90 minutes for an ambulance. They make the point that no mainstream media has sought to identify this delay, potentially as a result of lack of resources or the patient being classed as lower acuity and thus not needing an emergency response in the first place. (Note: there is a lack of evidence for both of these.)
Unlike Australia, the HCPC is able to publish its findings and order of suspension – http://www.hpc-uk.org/complaints/hearings/index.asp?id=5616&month=4&year=2015&EventType=H&hc_location=ufi. Although not all the evidence is presented it does make for interesting reading.
The paramedic in question, prior to the HCPC hearing, was dismissed by the London Ambulance Service following an internal investigation. After being dismissed he did not contest the HCPC, and from what I can read did not attend that hearing. Australia does not have registration so we know that an HCPC suspension would not occur, but rather (I assume) any disciplinary action if a paramedic did the same here would fall to each individual employer.
So my question is, where do Australian Ambulance Paramedics stand if they refuse a call on health and safety grounds?
In answer this question I’ll refer to the Work Health and Safety Act 2011 (Cth) which is the ‘model’ Act that is meant to be applied across the country. It has not, yet, been adopted in all jurisdictions but the principles are sufficiently close that reliance on that Act will, I trust, be sufficient.
The Work Health and Safety Act 2011 (Cth) requires a PCBU (a Person Conducting a Business or Undertaking, in this context, the relevant Ambulance Service) to ‘ensure, so far as is reasonably practicable, the health and safety of: (a) workers engaged, or caused to be engaged by the person…’ (s 19(1)). The PCBU must also ‘ensure, so far as is reasonably practicable, that the health and safety of other persons is not put at risk from work carried out as part of the conduct of the business or undertaking’ (s 19(2)). So the ambulance service has to have regard to the health and safety of its staff (the paramedics) and the people who may be affected by them (ie the patients). Fatigue will clearly be an issue that affects both, but the law does not impose a condition to ensure that all paramedics are well rested and able to function. If it did a service might operate on 4 hours shifts and only between the hours of 9am and 5pm. That would reduce the risk of fatigue but would not be ‘practicable’. An emergency ambulance service has to operate 24 hours a day.
The Act (s 18) says, that when considering what is ‘reasonably practical’ regard must be had to:
(a) the likelihood of the hazard or the risk concerned occurring; and
(b) the degree of harm that might result from the hazard or the risk; and
(c) what the person concerned knows, or ought reasonably to know, about:
(i) the hazard or the risk; and
(ii) ways of eliminating or minimising the risk; and
(d) the availability and suitability of ways to eliminate or minimise the risk; and
(e) after assessing the extent of the risk and the available ways of eliminating or minimising the risk, the cost associated with available ways of eliminating or minimising the risk, including whether the cost is grossly disproportionate to the risk.
Presumably any 24 hour emergency service appreciates that members, particularly on night shift and if they operate for 11 hours without a break, are going to be fatigued. Managing that has to take into account the potential risk to everyone but also the need to maintain that 24 hour a day service. Let me assume, for the sake of the argument, that any ambulance service as a fatigue management policy but I make no assumption about whether it is a good or effective policy.
The obligations upon employees includes an obligation to ‘co-operate with any reasonable policy or procedure of the person conducting the business or undertaking relating to health or safety at the workplace that has been notified to workers’ (s 28). If we accept that the fatigue management policy is a relevant health and safety policy then everyone, the paramedic, the control room despatcher, supervisor’s etc are all under a duty to ensure compliance with the policy.
A worker has a right to ‘cease, or refuse to carry out, work if the worker has a reasonable concern that to carry out the work would expose the worker to a serious risk to the worker’s health or safety, emanating from an immediate or imminent exposure to a hazard’ (s 84). One can imagine that working in paramedicine eg where a paramedic is directed to enter a scene before it has been made safe by the rescue squad, police or electricity authorities (depending on the hazard). The paramedic may well refuse to enter that site until it has been made safe.
It is an offence to discriminate against an employee (eg by sacking them or employing them on less favourable terms) (s 105) because they exercised any of their rights or powers under the Work Health and Safety Act (s 106).
Without going into the difficulties of paramedics being generally employed by State government authorities, I will assume that paramedics are protected by the unfair dismissal provisions in the Fair Work Act 2009 (Cth). That Act says that a person is to be protected from unfair dismissal (s 382). In deciding whether or not a dismissal is unfair, the Fair Work Commission (the FWC) must consider (s 387):
(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person–whether the person had been warned about that unsatisfactory performance before the dismissal; and
(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(h) any other matters that the FWC considers relevant.
The findings of the Health and Care Professions Council (HCPC) reveal that:
- The paramedic was at the end of an 11 hour unbroken night shift ().
- The call was received at 5.20am and his shift was due to end at 6am ().
- The paramedic advised the coordination centre that “I am not accepting it and I think it is dangerous” ().
In coming to their decision to suspend the paramedic for 12 months, the HCPC said (at ):
It is clear from the transcript of the radio conversation that the Registrant wished to end his shift. He commented on more than one occasion throughout that conversation that it had been a busy shift and that he was tired. Although during the Trust’s investigation the Registrant sought to explain his actions by reference to his health, there is no evidence either in the transcript or according to PS, who spoke to him after his shift had concluded, or elsewhere, such that his health would have prevented him, at the time, from accepting the call. His misconduct put the service user at potential risk of harm and he had been told that there was no other crew available to attend upon that service user. As a result of the Registrant’s refusal to attend the call, there was a delay of approximately 90 minutes before another crew was able to attend the service user.
Discussion and application in Australia
There does seem to be an issue as to whether ‘fatigue’ and ‘health’ are synonymous. The paramedic said it was ‘dangerous’ and ‘that he was tired’ but lead no evidence as to his ‘health’. That may well just be a procedural failing, in that the paramedic could have brought evidence as to the effect of fatigue and the risks that posed to his safety and to patient safety. As the tribunal said ‘there is no evidence … that his health would have prevented him’ from proceeding.
In that sense the outcome here may have just been a problem with procedure. The paramedic, it appears, didn’t say he couldn’t proceed because of fatigue, but because of his ‘health’ but then brought no evidence as to his ‘health’.
It must be, of course, that paramedics can refuse jobs due to their health. Paramedics (like anyone) will get sick during the course of a shift or get injured and there has to be processes in place where they can then ‘call in’ and say they can’t continue with their shift. There is I suggest a difference between calling in sick or injured during the course of a shift, and doing it when an emergency call has been allocated to you, but I suppose a paramedic, after 11 hours and 40 minutes before shift change might expect that he or she will not be allocated a task and perhaps the oncoming staff will be ‘called on’ early to respond. In that case he or she might not think to report in as unable to continue until someone does allocate a task.
So where does an Australian paramedic stand? As my correspondent has noted, paramedics in Australia are no registered health professionals so there is no process, such as that followed by the HCPC, to be applied here (at least not yet). The issue will be one for the employer, the ambulance service.
An employee is required to obey the reasonable directions of their employer. Paramedics are employed to respond to tasks allocated to them by their employer. Prima facie then a paramedic does not have a right to refuse a task. The right contained in s 84 may give rise to a right to refuse to enter the scene but it would not extend, I suggest, to a right to refuse to attend. (Unless the risk relates to the safety of the vehicle; a paramedic could rely on s 84 to refuse to attend if the risk is that the ambulance they have been provided is not roadworthy).
But, that general rule has to give way to specifics. If we accept that an 11 hour unbroken night shift with 40 minutes left to run has left the paramedic fatigued to the extent that he or she honestly believes that to proceed would be an unacceptable risk to their own safety or that of their patient then s 84 will be relevant. Remember it says the worker must have ‘a reasonable concern that to carry out the work would expose the worker to a serious risk to the worker’s health or safety’. The issue will be was the concern reasonable or not.
So who is to decide? As noted, one should not be a judge in one’s own cause so the mere assertion by the paramedic that he or she was overly fatigued due to the pressures of the night need not be, but may be, accepted at face value.
What we have to assume is that the employer ambulance service, like the London Ambulance Service NHS Trust, wants to dismiss the paramedic. Apart from the provisions of the Fair Work Act the paramedic would be entitled to natural justice. The service would have to tell him or her what they allege (‘that you refused to attend an emergency call’) and give the paramedic the opportunity to address the allegation that is to explain that they were fatigued and believed there was a risk to health and safety of either themselves, the patient or both and that the risk was too great taking into account there was also a risk to the patient if they did not attend. The service would have to have regard to that submission. Relevant evidence would also include the fatigue management policy and whether that had been complied with and evidence about the paramedics particular state of health at the time.
If the service accepts that explanation, that would be the end of the matter. If not they might dismiss the paramedic and the paramedic could make an ‘unfair dismissal’ claim. Again the ambulance service is not the judge, the FWC would be and they would want to have evidence addressing issues set out in s 387 and that too, I would suggest, would include evidence about the fatigue management policy and the steps that the ambulance service must have in place to deal with paramedics being unable to complete their shift. In short it would be the FWC (or relevant state tribunal if the Fair Work Act does not apply) that would have to determine whether or not the response of the paramedic, and whether or not the response of the service to dismiss the paramedic was ‘harsh, unjust or unreasonable’ (s 385).
If the paramedic is dismissed, or not dismissed but subject to disciplinary action, the matter could also be taken up with health and safety representatives and the state work health and safety regulator. There are powers to appoint an inspector and otherwise rule on the issues and that would bring into focus the question of whether or not the fatigue management policy was appropriate and appropriate followed by all concerned, and whether or not there was ‘reasonable grounds’ for refusing the allocated tasks.
In either case one has to keep in mind the issue is not just the risk to the fatigued paramedic, but also the risk to the patient in either sending a fatigued paramedic, or sending no-one at all.
I would suggest it is not open to a paramedic to question ‘the call allocation’ (). If one is too fatigued to operate one is too fatigued regardless of whether or not the paramedic thinks the call is a true emergency or not. The more ‘urgent’ the situation the more important that the paramedic is able to function well, so if one’s attitude is ‘I’d go if it was a multi-car accident, but I’m not going to ‘a 43-year-old female … feeling faint, dizzy, and was vomiting’ () then I would suggest the correct inference is not that the paramedic was so tired that there was a risk to health and safety, but rather he or she would prefer to finish the shift.
The question asked was ‘where do Australian Ambulance Paramedics stand if they refuse a call on health and safety grounds?’ My answer is:
- They have a right to refuse a call on health and safety grounds under the Work Health and Safety Act 2011 (Cth) (or its various state equivalents) s 84.
- That requires ‘a reasonable concern that to carry out the work would expose the worker to a serious risk to the worker’s health or safety’;
- If the employer does not accept is the case (eg they think the paramedic just doesn’t want to work past the scheduled end of shift) then the paramedic could be subject to internal discipline which could include termination.
- If there is a dispute as to the ‘reasonableness’ of everyone’s actions these could be judged by the Fair Work Commission (or relevant state equivalent) if there is an allegation of unfair dismissal, or the relevant work health inspectorate if there is an allegation of discrimination for unlawful reasons as defined by the Work Health and Safety legislation.
- Those proceedings may or may not come down in favour of the paramedic. It would depend, as the English case did, on the evidence and the assessment of the witnesses.