This question comes from a NSW Paramedic and fire fighter. My correspondent says:
I am a part time NSW Ambulance paramedic who also works as a paid fire fighter with Fire & Rescue NSW. In my role as a fire fighter I often end up attending to patients at an incident. I have had various people give me different advice about what I can and cannot do in terms of treating a patient whilst working as a firefighter. The consensus seems to be that I am limited to providing basic first aid treatment no higher than the level of training provided by the fire brigade, despite my paramedic training and skills.
My question relates to where I would stand in terms of performing patient assessment and treatment that was part of my paramedic scope, whilst working as a fire fighter (bearing in mind that I am limited only to the equipment carried on a fire truck and obviously not including administering drugs)?
Would I be negligent in providing or not providing treatment that I was trained in as a paramedic, whilst working as a fire fighter?
I’ve written before about doctors, paramedics and nurses using their professional skills outside work and when acting as a volunteer – see:
- Doctor as volunteer Life Saver and scope of practice (February 6, 2015)
- Nursing standards and assisting in an emergency (May 22, 2014)
- ALS Paramedic as volunteer with St John (WA) (April 5, 2014).
- ‘Just Ridiculous’? When is a MICA Paramedic a MICA Paramedic? (March 28, 2013)
- Volunteer nurses and their skills (December 12, 2012)
What distinguishes all those posts from this one is that the health professional was acting as a volunteer for a health service –a doctor working with Surf Lifesaving is part of the beach first aid service; a paramedic volunteering for St John or working an overtime shift at a country, non-MICA station. Here however, the paramedic is working for a fire brigade – is that different?
Let me start with the example of the doctor and surf lifesaving. Putting aside the actual process of getting someone out of the water, one of the roles is to provide first aid and, in the scenario given in the discussion (Doctor as volunteer Life Saver and scope of practice (February 6, 2015)) the doctor was doing CPR. So here is a situation where someone may come to the lifesavers (or St John in ALS Paramedic as volunteer with St John (WA) (April 5, 2014)) for health care so the volunteer has a duty to provide health care that is reasonable in the circumstances and required in the patient’s best interests. They can’t deny or turn off the fact that they are a doctor (or paramedic). Further if they don’t do something that they are competent to do and know is required in the patient’s best interests, and the reason they don’t do it is because they have been instructed not to or worse, simply think that they must limit their care to some lower standard else they will be ‘liable’ or ‘not insured’, then they are not acting in the patient’s best interests. Rather what they are doing is acting in their own best interests. This is not only unethical it would not be acting ‘in good faith’ so protections under volunteer protection and good Samaritan legislation could be lost. This would be consistent with the motivation behind those laws; that is they are designed to encourage, not discourage action (see also Good Samaritan legislation and scope of practice (March 27, 2015)).
But a fire brigade is different. A fire brigade (or at least a brigade from NSW Fire and Rescue) is there to ‘to take all practicable measures for preventing and extinguishing fires and protecting and saving life and property in case of fire in any fire district’ (Fire Brigades Act 1989 (NSW) s 6). The fire brigades are not (yet) an emergency medical service (Fire fighters as EMS providers (January 31, 2013)). People may expect a fire fighter to provide first aid to a person affected by a fire or hazardous material service but the fire brigades, and fire fighter’s primary concern will be the fire or the hazardous materials. Fire fighters would and should pass the patient over to the ambulance service or depending on the nature of the event (eg a major bushfire) a support agency like St John Ambulance.
Whilst a fire brigade, and therefore a fire fighter, will have a duty to provide reasonable care to a person who is injured, it will not be to the same extent as an ambulance service or I would suggest, NSW Ambulance, St John Ambulance or Surf Lifesaving. The focus of those agencies is on the person, the focus of the fire brigades is the fire or hazard. (Compare the decisions in Capital and Counties v Hampshire Council  QB 2004 (fire brigades do not owe a duty to individuals) and Kent v Griffiths  QB 36 (London ambulance service does owe a duty to 999 caller) – both of which are discussed in multiple posts on this blog).
Let us now return to the scenario. My correspondent is on duty with NSW Fire and Rescue, he may be at a motor vehicle accident, a fire or a hazardous materials incident (or any other type of incident) but let us assume the ambulance service is not yet there. Let us also accept that my correspondent is ‘limited only to the equipment carried on a fire truck and obviously not including administering drugs)’. I’m not sure but my knowledge of what’s in a standard appliance would cause me to think there is probably a first aid kit and medical oxygen. It must follow that if a person is being treated by a fire fighter they could expect that if not every firefighter, at least one firefighter travelling on that appliance can use that equipment. They would reasonably expect to get care that involved basic first aid and, if necessary, oxygen therapy. A paramedic can administer that treatment without issue.
So what else can a paramedic do? My correspondent talks of ‘performing patient assessment and treatment that was part of my paramedic scope’. Patient assessment cannot be an issue. Let us assume that the person has come out of the fire and is assessed by a fire fighter who says ‘you seem ok mate’ but my correspondent – a paramedic – thinks ‘I’m not so sure’ and stops to do a more thorough assessment. Again I’m assuming he’s limited to what’s on the fire appliance so no sphygmomanometer, stethoscope or other tool, but perhaps more thorough questioning and just knowing what to look for is helpful.
How could there be any liability for doing that? It still the case that one can’t just pretend you don’t know what you do in fact know. Doing that assessment cannot harm the person but not doing it could if, for example, they’re allowed to go home when they should be referred to an ambulance crew for even more thorough assessment.
What of a treatment? Here let us assume that the patient is suffering from asthma (not unlikely at a fire) and my correspondent decides to administer ‘expiratory assistance’ (Ambulance Service of NSW, Protocol M4: Asthma, January 2011). I’m no longer a clinician but we used to do external chest thrusts so let me assume that is still what is meant by ‘expiratory assistance’ (I’m sure one of the paramedics who follows this blog will correct me if I’m wrong on that). Let me also assume this technique is not taught to firefighters (again I’m happy to be corrected by any of the firefighters on the blog). What could happen? Well I suppose one could fracture the patient’s ribs. Now if the procedure is performed competently, and if this is a known risk, and if the patient benefits there can be no liability so let me assume the procedure is done negligently.
Who could the patient sue? They could sue the Fire Brigades. The person doing the treatment was clearly a fire fighter acting in the course of his or her duties (they’re at the fire, in uniform). The fact that they performed a treatment negligently is what vicarious liability is all about; an employer is liable for the negligent acts of its employees, not the non-negligent ones. In this case the paramedic/firefighter may have performed beyond the skills of a firefighter but that does not mean the fire service would escape liability. In CML (1931) 46 CLR 41, Gavan Duffy CJ and Starke J said (at 64): “It is not necessary that the particular act [‘expiratory assistance’] should have been authorized: it is enough that the agent should have been put in a position to do the class of acts complained of.” Here the employee fire fighter is there to perform his or her duties which must include giving first aid to those injured by the event so the action is in the ‘class’ of authorised acts.
For the fire service to escape liability they would have to show that the employee fire fighter was engaged in ‘frolic of their own’. That might be the case if the paramedic carried on the appliance a personal drug kit and advanced life support equipment but that is not the scenario described here. Here my correspondent is limited to the kit carried on the appliance. He or she is not doing something for his or her benefit, they are trying to help a person, in need of assistance, at an incident to which they have been called. Remember that the brigade is to ‘‘to take all practicable measures for … saving life’. I would be certain that any liability would still lie with the fire service.
What if the paramedic doesn’t do anything? Assume first that the person is being cared for by another fire fighter. In that case you have a person getting first aid but who could benefit from the extra knowledge and experience of the paramedic fire fighter. The patient, assuming they could prove the outcome would have been different had they been treated by the paramedic/fire fighter, would have trouble suing the Fire Brigade. The fire service is not under a duty to provide advanced life support or anything other than basic first aid. They don’t hold themselves out as an EMS service, they are a fire service. All that might be expected form a fire service is whatever they teach their fire fighters to do and that is the care the person was receiving.
Could the fire fighter/paramedic be sued? I don’t think so. He or she is there as a fire fighter, to impose a duty to provide some higher level of care, even any level of care, could distract the fire fighter from his or her duties. Assume a person is pulled from the fire and needs first aid, my correspondent may well leave the person with another fire fighter as his current duty requires him to attend to the fire. There can’t be any obligation either upon the fire service or my correspondent to be in charge of anyone injured in the fire because he or she is the best qualified. That would deny the fact that, at this moment, they are a fire fighter.
The situation would be different if the person was not being attended to by anyone and the paramedic/fire fighter refused to step in. Then the fire service would again be liable (if it made a difference to the outcome) as the fire service would owe some duty to a person pulled from the fire as the fire brigade is there to there to ‘to take all practicable measures for … saving life …’ (Fire Brigades Act 1989 (NSW) s 6) so the service has to ensure that some care is provided, though not by a paramedic. A failure by all fire fighters at the scene, including my paramedic correspondent, to act would be a failure by the brigade.
My conclusions are:
- If my correspondent undertakes a ‘patient assessment and treatment that was part of my paramedic scope, whilst working as a fire fighter (bearing in mind that I am limited only to the equipment carried on a fire truck and obviously not including administering drugs)’ and benefits the patient; all well and good.
- If he or she harms the patient, then in my opinion, the fire service would be vicariously liable.
- If my correspondent does not provide patient care because he or she is engaged with other duties to do with the fire or incident response then neither my correspondent nor the fire brigades would be liable as neither are under a duty to provide paramedic care at the fire. This would be the case even if the patient can show that they would have had a better outcome if that care had been provided.
- Provided another fire fighter is looking after the patient, then if my correspondent does not provide patient care because he or she is concerned with protecting his or her own interests, that is they are scared of liability, then that action would be unethical and I would suggest not in good faith, but I still don’t think that could lead to liability as the person is getting the care of a reasonable fire service.
- If no-one is looking after the person and my correspondent is not otherwise engaged in firefighting tasks, then the fire service could be liable if he or she refuses to treat the person. If that refusal is motivated by a fear that of liability then that would be both unethical and not acting ‘in good faith’. The fire service would owe a duty to provide some care and if the only available fire fighter fails to act, the fire service would be liable for not ensuring that the relevant care is provided.