This question comes from WA but given it relates to interstate travel it could be from any jurisdiction.

An ambulance paramedic is travelling interstate/oversees and is being paid and in uniform.  A medical emergency occurs during the flight and the individual for obvious reasons is asked to assist. As an employee, the individual holds no authority to practice as a single responder, and would not have access to their normal equipment and medications.

Questions:

  1. Am I correct in assuming the Civil Liabilities Act (WA)- Division 7 part 1D Good Samaritans would not apply as the person is employed at the time of the event occurring in the event that harm was done
  2. To what extent does Division 7- professional negligence protect the individual? My interpretation of question 2 is that the Act would cover you in your capacity as a Paramedic, providing you are acting in accordance with practice that is widely accepted as competent professional practice
  3. However to what extent does an organisation hold a responsibility to protect its employee in this circumstance where harm was done
  4. Does vicarious liability still apply?

Discussion

  1. Am I correct in assuming the Civil Liabilities Act (WA)- Division 7 part 1D Good Samaritans would not apply as the person is employed at the time of the event occurring in the event that harm was done?

That would certainly be arguable. In an earlier post Who to treat? A question for St John first aiders (June 30, 2013) I made the argument that in my view the Good Samaritan provisions of the Civil Liability Act 2002 (NSW) would not apply to St John volunteers on public duty as they are there holding themselves out to provide care – they are not acting without an expectation of reward.  In this scenario the paramedic ‘is being paid and in uniform’ so on one view he or she is clearly not acting ‘without expectation of payment’ (Civil Liability Act 2002 (WA) s 5AB).  But, on the other hand, at that very moment he or she is not actually engaged in providing paramedic services, rather they are a passenger on a plane and one might argue that stepping up to provide care was doing something that they were not at that time being paid to do.

Why do I split that hair?  I think if something went wrong and someone tried to sue (remember that is very unlikely) a judge could say, if he or she thought the case was without merit, that the good Samaritan provision (s 5AD) did apply; but if the judge thought there had been negligence, he or she could equally hold that s 5AD did not apply.   But putting aside the role of counsel in suggesting to judges how they can come to the result that they want to, I think as a matter of actual principle it’s correct – s 5AD can’t apply where the paramedic is in uniform and getting paid whether he or she is getting paid to be in an ambulance or flying interstate or overseas.

  1. To what extent does Division 7- professional negligence protect the individual? My interpretation of question 2 is that the Act would cover you in your capacity as a Paramedic, providing you are acting in accordance with practice that is widely accepted as competent professional practice.

Division 7 of Part 1A of the Civil Liability Act 2002 (WA) is headed ‘Professional negligence’.  Relevantly that part applies to a member of one of the 14 health professions registered under the Health Practitioner Regulation National Law (Western Australia) (s 5PA(a)).  Paramedics are not yet a registered health professional so they are included in that list.

The Division also applies to ‘any other person who practises a discipline or profession in the health area that involves the application of a body of learning’ (s 5PA(b)).  Whether that applies to paramedics would be a matter for a judge should the issue every arise but see Are Paramedics members of a profession? (July 24, 2015).

The important part of Division 7 is s 5PB(1) which says ‘An act or omission of a health professional is not a negligent act or omission if it is in accordance with a practice that, at the time of the act or omission, is widely accepted by the health professional’s peers as competent professional practice’.  This legislative enactment was a reaction to the High Court’s decision in Rogers v Whitaker (1992) 175 CLR 479.  Up until that time medical practitioners believed that the law said that the test for negligence was based on:

… the so-called Bolam principle, derived from the direction given by McNair J. to the jury in the case of Bolam v. Friern Hospital Management Committee (1957) 1 WLR 582. In Sidaway v. Governors of Bethlem Royal Hospital, Lord Scarman stated the Bolam principle in these terms ((1985) AC 871, at p 881):

“The Bolam principle may be formulated as a rule that a doctor is not negligent if he acts in accordance with a practice accepted at the time as proper by a responsible body of medical opinion even though other doctors adopt a different practice. In short, the law imposes the duty of care: but the standard of care is a matter of medical judgment.”

In Rogers case the High Court said that the Bolam principle was not part of Australian law.  Mason CJ, Brennan, Dawson, Toohey and McHugh JJ held that:

… while evidence of acceptable medical practice is a useful guide for the courts, it is for the courts to adjudicate on what is the appropriate standard of care… Whether a medical practitioner carries out a particular form of treatment in accordance with the appropriate standard of care is a question in the resolution of which responsible professional opinion will have an influential, often a decisive, role to play…

but at the end of the day whether conduct meets the standard required by law is a legal question to be determined by a court and not the professional opinion of those that are subject to the inquiry by the court.  Section 5PB(1) is an attempt to ‘wind back’ that decision but it doesn’t actually mean much.

Assuming paramedics are not covered by Division 7 so what?  The question of whether a paramedic’s conduct in an mid-air emergency will be judged (if it be judged at all) by the question of what would a reasonable paramedic have done.  To answer that the court would need to look at the paramedics Clinical Practice Guidelines as they define what paramedics are trained to do and hopefully the evidence of other paramedics.  (Stopping to note here that in Ambulance Service of NSW v Worley that even though the issue was whether the Ambulance Service and/or the treating paramedic had been negligent, both sides called 5 doctors each, but neither party called a paramedic to give expert evidence as to what could have been expected from a reasonable paramedic ([2006] NSWCA 102, [30])).    That evidence would ‘have an influential, [if not]  a decisive, role to play’ in judging the paramedic’s performance.

  1. However to what extent does an organisation hold a responsibility to protect its employee in this circumstance where harm was done?

I’m not sure I understand the question.  The employee is at work so the obligations to the employee are the same as they are whenever a person is at work (Occupational Safety and Health Act 1984 (WA)).

  1. Does vicarious liability still apply?

In this case it would have to.  The paramedic was approached not because he or she was the passenger in seat 8D but because he or she was the passenger in seat 8D clearly identified as a paramedic and what the crew were looking for was assistance.  The reason the paramedic was travelling in uniform is because he or she was ‘being paid and in uniform’.  Whether they were travelling interstate for a meeting or overseas for an international deployment, they were at work, being held out by their employer as a representative of the employer (hence the uniform) and they were approached to perform tasks essential to their employment.  Vicarious liability would still apply.