Today’s question comes from a Queensland paramedic who tells that:
… here in Queensland, we have a fatigue management plan, whereby each paramedic has to ascertain their own ‘fatigue score’ using pre-set questions in regard to how much sleep they have had in the last 24hrs as well as the previous 24hrs as well. If the score is above a certain score, action needs to be taken, ranging from Comms being aware to standing down from duty. In my experience, individual officers don’t take this seriously, as they deem it another way that management can ‘screw us over’ if we report our score and have an accident in the line of duty. I was wondering what the law says in regard to fatigue management and the legal response should a paramedic be involved in an accident and claim fatigue as a cause?
In answering this question I’m not commenting on the specific Queensland policy as I don’t have access to the relevant policy documents, so this will be a general discussion.
The starting point is the Work Health and Safety Act 2011 (Qld). It says
(1) A person conducting a business or undertaking [a ‘PCBU’; in this context, Queensland Ambulance] must ensure, so far as is reasonably practicable, the health and safety of—
(a) workers engaged, or caused to be engaged by the person; and
(b) workers whose activities in carrying out work are influenced or directed by the person;
while the workers are at work in the business or undertaking.
(2) A person conducting a business or undertaking must 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.
Put simply Queensland Ambulance must take steps to try to ensure, as best it can, that neither its paramedics or those they meet are exposed to risk due to the work being undertaken. Neither the Act nor the associated Work Health and Safety Regulation 2011 (Qld) makes specific mention of fatigue management.
But let us assume for the sake of argument that fatigue management is an important issue for a 24/7 emergency service as it is for PCBU’s that ask people to drive for a living (see How to Manage Work Health and Safety Risks: Code of practice 2011). A fatigued paramedic is a risk to him or herself, their colleagues and their patients. An ambulance service can monitor what it asks its paramedics to do on any shift, ie they can know what jobs they’ve been doing and whether there’s been down time, but they can’t control what people do on their time off – whether between night shifts they’ve been working a second job or up all day at the family picnic. Or whether before the day shift they were out partying. But if the paramedic makes a mistake and harms someone (including him or herself) it will be the ambulance service that will be liable for the negligence of the paramedic and for the workers compensation costs and, if there has been no effort to manage that risk, for breach of the WHS Act.
Given all that it seems quite reasonable to implement some scheme and in this case, it’s self-monitoring. Whether that is sufficient I can’t say but it does at least force paramedics to think about it and if they know they are going to have to complete the checklist it may remind them to go to bed early rather than stay up on a Friday night before a Saturday morning start.
But what of the claim that it’s ‘another way that management can ‘screw us over’ if we report our score and have an accident in the line of duty’. Remembering that I haven’t seen the policy document I fail to see how that could be the case. If the paramedic reports their score and it is such that action should be taken, then the liability of the ambulance service, not the paramedic would be clear if the service did not in fact take the action that the policy called for. If, on the other hand, the paramedic does not honestly report their fatigue score, then that could well be used to their detriment should there be a clinical or other accident. It won’t affect liability – an employer is vicariously liable for the negligence of their employee but it may impact upon the paramedics’ compensation rights if they are injured and it may impact upon their employment. An employee must obey the reasonable directions of the employer and requiring the employee to complete the form honestly would seem to be a reasonable direction – at least if the policy is reasonable.
Put simply, if paramedics are worried about providing ‘another way that management can ‘screw us over’’, failing to complete the form honestly would give that to them. If the concern is that the paramedic will be stood down and lose wages or be required to take leave, then that should motivate paramedics to manage their fatigue between shifts.
Again, without seeing the policy I can’t see how anyone would think being dishonest on the self-assessment is going to be more in their interest than filling it out correctly. If they fill it out correctly and are involved in an accident and claim fatigue as a cause then they can point to their form and that they told the service, and that the service, being on notice, should have done something to reduce the risk to them and others.