The Senate Legal and Constitutional Affairs Committee is holding an inquiry into ‘The establishment of a national registration system for Australian paramedics to improve and ensure patient and community safety’. I was reading the submissions to the Inquiry including one from Australian Paramedics Association Queensland Inc.
The Australian Paramedics Association describe themselves (at http://www.apaq.com.au/about) as:
… a professional industrial association that was setup by paramedics and ambulance employees, to support and advocate for the rights and well being of paramedics and ambulance employees.
What caught my attention was a section in there senate submission on ‘Liability’. They say:
The single biggest question being asked of Australian Paramedics Association Qld in regards to registration is whether each officer will require personal indemnity insurance. Currently, each service (or at least Queensland do) have protections under legislation for any act or omission performed in ‘good faith’ and without negligence, thereby preventing the need for paramedics to be forced to pay for additional protection.
This would need to be addressed within the registration framework, for both government and privately employed paramedics.
I don’t understand what they mean when they say Queensland ambulance officers have ‘protections under legislation for any act or omission performed in ‘good faith’ and without negligence’. That sounds like a provision from the Fire Service Act 1990 (Qld) s 129 – and that reference is deliberate, I’m looking at the 1990 version of the Act that said:
No matter or thing done or omitted to be done by any person pursuant to this Act or bona fide and without negligence for the purposes of this Act subjects that person to any liability
It is not what the Act currently says. Today the Fire and Emergency Service Act 1990 (Qld) s 153B says ‘No liability attaches to any person for an act done, or omission made, honestly and without negligence’.
The problem with a section like the original s 129 and now s 153B is they don’t say much. If someone is suing someone for negligence, it stands to reason there can be no liability for an act done ‘without negligence’ whether the action was ‘honest’ or in ‘good faith’ or not. To say ‘‘No liability attaches to any person for an act done, or omission made, honestly and without negligence’ is exactly the same as saying ‘‘No liability attaches to any person for an act done, or omission made without negligence’ and if the allegation that is said to lead to liability is that the defendant was negligent that has to be true whether the statute says it or not; that is if I say ‘you are liable to me because your action was negligent’ and your action was not negligent, then you are not liable. The section may be relevant if the cause of action – the allegation – is assault or trespass rather than negligence.
That’s all well and good but it’s not what the Ambulance Service Act 1990 (Qld) says. It says (at s 39(1)):
The State is to indemnify every service officer against all actions, proceedings and claims in relation to—
(a) acts done, or omitted to be done, by the officer under section 38; or
(b) acts done, or omitted to be done, by the officer in good faith for the purposes of section 38.
Section 38 sets out the powers of an authorised ambulance officer to take action in an emergency. Section 39 just restates the law of vicarious liability that is an employer is liable for any default by an employee.
So why don’t paramedics need professional indemnity insurance. Because they are employees. If the issue was that there was a section that said they are not liable for ‘for any act or omission performed in ‘good faith’ and without negligence’ that would not be enough. That would give a defence but it wouldn’t stop someone alleging that some action was done negligently. If that were the case the act would not be ‘in good faith and without negligence’ so the alleged defence would not apply. Even if it did you would still want insurance so that the insurance company paid to defend the case. Even if you’re going to win you don’t want to pay to have the argument. A clause that said there was protection for acts done ‘‘in good faith and without negligence’ are not a bar to legal action. It provides a defence but it is up to a court to determine whether it would apply in the circumstances. To say therefore that that Queensland paramedics don’t need PI insurance because they have ‘protections under legislation for any act or omission performed in ‘good faith’ and without negligence’ is wrong. It’s wrong because that is not what the legislation says and it’s wrong because even if it did it would not mean that one wouldn’t want insurance to be able to defend any claim that is made.
The correct statement is that Queensland paramedics don’t need PI insurance because, as employees, it is the employer who is liable should there be any claim of negligence or other tort. For a more detailed discussion see:
- Professional indemnity insurance for NSW Paramedics (January 30, 2016) and
- Vicarious liability for the actions of fire wardens (March 5, 2016) and
Then there’s the question of ‘with registration will paramedics require personal indemnity insurance’? The answer there is not necessarily. Registered health professionals do have to be covered by indemnity insurance in order to practice their profession but it doesn’t necessarily have to be personal. Take for example, a person seeking to be registered as nurse. The Nurses and Midwifery Board has a registration standard on PI insurance. It says “Nurses and midwives must not practise their respective profession unless they are covered by appropriate professional indemnity insurance (PII) arrangements” but it doesn’t say exactly what that insurance must cover. It says ‘Nurses and midwives in different types of practice will require different levels of PII cover, according to their particular level of risk’ and then lists some types of cover that should be considered. ‘It is the responsibility of nurses and midwives to understand the nature of the cover under which they are practising’. When applying for registration a nurse has to tick a box on the Application for General Registration that says ‘yes’ to the question ‘Do you commit to have appropriate professional indemnity insurance arrangements in place for all practice undertaken during the registration period?’ The nurse is then referred to ‘… the Information and definitions section of this form’. In that section it says (emphasis added):
PROFESSIONAL INDEMNITY INSURANCE (PII)
You must not practise the profession unless you are covered by appropriate PII arrangements in accordance with the requirements of the NMBA. You may be covered by your own private cover, your Australian employer’s cover or another third party. You are accountable for ensuring that you have PII cover in place and for understanding the nature of that cover. For more information, view the registration standard and guideline for each profession online at www.nursingmidwiferyboard.gov.au/RegistrationStandards.
So will paramedics require personal PI Insurance? That remains to be seen and will depend upon the decisions of the (yet to be established) Paramedic Board but if the Paramedic Board takes the same approach as the Nurses and Midwifery Board, and if s 39 remains part of the Ambulance Service Act 1990 (Qld) then I would think any Queensland paramedic who practices only with Queensland ambulance could comfortably tick the box to say that they have appropriate cover.
Even without s 39 paramedics who work only as employees will also be confident that their liability (if any) must be met by their employer (see Hollis v Vabu Pty Ltd (2001) 207 CLR 21; Sweeney v Boylan Nominees Pty Ltd (2006) 226 CLR 161). Hospitals and other health services remain liable for the negligence of their employed doctors and nurses (Ellis v Wallsend District Hospital (1989) 17 NSWLR 553; Albrighton v Royal Prince Alfred Hospital  2 NSWLR 165) even though there is no equivalent to s 39 in the Health Practitioner Regulation National Law 2009 (Qld).
Queensland paramedics do not need PI insurance because they are employees; not because they ‘have protections under legislation for any act or omission performed in ‘good faith’ and without negligence’ (which they don’t).
If Paramedics do become registered under the scheme that applies to other registered health professionals, it is not axiomatic that they will have to obtain personal professional PI insurance. That will depend on the standards set by the (yet to be established) Paramedic Board, but the example from the Nurses and Midwifery Board is that cover provided by employers can be sufficient.