On 29 March 2010, Commissioner Deegan of the Commonwealth’s Fair Work Australia ordered that ACT paramedics be reclassified ‘from Technical Officers to Health Professionals’ (‘ACT ICP’s recognised as Health Professionals’, Paramedics Australasia, 19 April 2010).  Significantly, I am told, that change brought with it ‘significant pay increases to ACT paramedics, I believe the average increase was in the vicinity of 21% on base rate’.  Presumably this change in status was intended to reflect on the increased skill and independence that was being demonstrated by paramedics. (See also the decision of the NSW Industrial Relations Commission in Operational Ambulance Officers (State) Award [2015] NSWIRComm 17 which has determined that there should be a new employment classification of ‘Critical Care Paramedic (Aeromedical)’ (with a higher pay scale) to reflect ‘the changed work, and the skills and responsibility’ of ‘paramedics performing work in the Aeromedical Retrieval Services of the Ambulance Service of NSW’.)

So what I hear you ask? Or at least that is what my correspondent from the ACT asks. He says:

The change occurred with little change in work practice for the paramedics and with no clear definition of changes that may exist under law or its obligations with relation to the individuals responsibilities and that of on organisations responsibilities in relation to say a claim of negligence.

In essence, does the recognition change who is liable for any negligence? The answer is ‘no it doesn’t’.

Vicarious liability, where an employer is liable for the negligent performance of an employee is a function of the employment relationship, or a relationship where the person is so closely involved in the employers business that the employer should be liable, even if strictly speaking, the negligent defendant is an independent contractor (see Albrighton v RPA [1980] 2 NSWLR 542, Stevens v Bodribb Sawmilling (1986) 160 CLR 16, Ellis v Wallsend District Hospital (1989) 17 NSWLR 553, Hollis v Vabu, (2001) 207 CLR 21).

What does it mean to be a professional? Some would say that a professional as someone who gets paid as opposed to an amateur or volunteer but that is, of course, insulting to the many volunteers who provide a very professional service.

Traditionally professions were distinguished from ‘trades’ but I’m sure there are many electricians and plumbers who would regard themselves as professional both because it’s their job, unlike home handypersons, and because they do it well and with regard to their clients best interests.

There are iconic professions in particular the legal and medical professions and they have been joined by many others. What are the defining characteristics of a ‘profession’?

In Profession of Medicine: A Study of the Sociology of Applied Knowledge (University of Chicago Press 1988, pp 3-4) Eliot Freidson says:

… it is difficult to find very much agreement on a definition of the word “profession”. This is so for a number of reasons. First, the word is evaluative as well as descriptive. Virtually all self-conscious occupational groups apply to themselves at one time or another to flatter themselves or to try to persuade others of their importance. Occupations to which the word has been applied are thus so varied as to have nothing in common save a hunger for prestige. This state of affairs has led Becker, for one, to claim that it is hopeless to expect the word to refer to more than a social symbol which people attach to some occupations but not to others.

Matthews (Jennifer H. Matthews, ‘Role of Professional Organizations in Advocating for the Nursing Profession’, Online J Issues Nurs. 2012;17(1) ) writing more recently, says:

… the following characteristics have come to characterize a profession (Bucher & Strauss, 1961; Cogan, 1955; Hillman, 2005; Merton, 1958):

  • a basis in systematic theory – a distinct way of viewing phenomena surrounding the knowledge base of the profession
  • specialized competencies and practitioners who are effective in practicing the professional role
  • dedication to raise the standards of the profession’s education and practice
  • availability of professional education as a life-long process and mechanisms to advance the education of professionals established by the profession
  • the presence within the profession of individuals with varied identities and values forming groupings and coalitions that coalesce into unified segments – known as specialties with specific missions
  • authority recognized by society and the clientele of the profession
  • approval of the authority sanctioned by a broader community or society
  • a code of ethics to regulate the relationships between professionals and clients
  • self-regulation that protects practitioners and supports disciplinary criteria and actions to censure, suspend, or remove code violators
  • a professional culture sustained by formal professional associations, such that the membership may develop a biased perspective through their profession’s lenses.

Paramedicine may be moving toward professional status with the growth of the university training which involves the development and application of a systematic theory and specialised competencies as well as the development of research to allow the ‘profession’ to take responsibility for the education of new professionals, but paramedicine does not yet demonstrate may essential features of a profession. In particular, paramedics do not have a separate ‘code of ethics’ nor are they responsible for self regulation. Paramedics are paramedics only when they are employed.  It is their employer that determines their scope of practice and that is responsible for their professional discipline.

If paramedics were registered like doctors, nurses, chiropractors or any of the other 14 registered health professionals there would be a Paramedic Board that would set standards of practice. The paramedics right to practice would be determined by the Board and regardless of legal liability, it would be the Paramedic Board that would determine whether or not a paramedic was fit to practise.   A professional paramedic would have duties and obligations to his or her patient above and perhaps in conflict with duties to his or her employer. That is not the case at the moment.

I am unable to access the decision of Commissioner Deegan from May 2010 so I’m not sure in what context she was using the term ‘profession’ or what it meant for the purposes of the relevant award, but it did nothing to change the legal status of paramedics.

Conclusion

Paramedics are employees and whilst they are employees their employer is vicariously liable should they perform their duties negligently. Nothing in the changes of nomenclature in the award would or could change that.

Even if paramedics were registered health professionals, their employer would remain vicariously liable for their negligence, just as employers are liable for the negligence of doctors and nurses. What would be different is that regardless of civil liability, the relevant professional board can discipline a registered health professional if their conduct falls below acceptable professional standards. For paramedics their professional standing is, at the moment, determined solely by their employer.   Again nothing in the change of title in the award affects that.

So in answer to my correspondent’s question, did the change of tile affect ‘the individuals responsibilities and that of on organisations responsibilities in relation to say a claim of negligence?’ the answer is ‘no’.   And I regret to say that in my view, although paramedics are professional, in the absence of professional registration they are not members of a profession.

For those that are interested, I will be addressing these issues in a presentation at the Australian and New Zealand College of Paramedicine (ironically formerly the Australian College of Ambulance Professionals) Annual Conference in Sydney on 15 August. 2015