Today’s question is:
What are the implications of a paramedic performing a (generally considered safe) non-invasive procedure for a condition they’re familiar with but falls outside their clinical scope?
Here’s the specific scenario-
Pt presented to their GP with nystagmus, vertigo and nausea. GP surgery called for an ambulance. The crew then had the patient attempt the Epley manoeuvre.
The local clinical practise guidelines don’t cover vertigo nor the Epley manoeuvre.
The Royal Australian College of General Practitioners describes the Epley manoeuvre as a non-drug treatment for ‘posterior canal benign paroxysmal positional vertigo’. They say ‘General practitioners, patients, other medical practitioners and physiotherapists can administer the Epley manoeuvre’. They also say ‘No serious adverse effects have been reported. Common side effects include vertigo and nausea (and sometimes vomiting) during the manoeuvre’.
To answer this question, however, the exact treatment in question is not really the issue. The paramedic is providing treatment for a condition that ‘the local clinical practise guidelines don’t cover’. The paramedic is not providing treatment that is contrary to the CPGs, but treatment for a condition that is absent from the CPGs.
The implications are that a registered health professional has to take responsibility for his or her decisions. There is no legally ‘defined scope of practice’ for paramedics. Good paramedic practice requires ‘recognising and working within the limits of a practitioner’s competence and scope of practice, which may change over time’ (Paramedicine Board Code of Conduct (Interim) June 2018, [2.2](a)). But the ‘scope of practice’ is not solely defined by the employer.
Maintaining and developing knowledge, skills and professional behaviour are core aspects of good practice. This requires self-reflection and participation in relevant professional development, practice improvement and performance-appraisal processes to continually develop professional capabilities. (Code of Conduct [7.1]).
Clinical Practice Guidelines are guidelines and won’t cover every situation and sometimes paramedics will have obtained extra knowledge and training that they can use to deliver patient centred care (Code of Conduct [2.2](b)). If the paramedic knows what the Epley (or some other) manoeuvre is, can recognise when it is indicated and is competent to perform it then it is within ‘the limits of a practitioner’s competence and scope of practice’. But he or she is responsible for the decision making and if it turns out that they were not competent or that the treatment was not indicated (or worse, was contra-indicated) and the patient suffers a harm, then he or she will have to be prepared to justify why their decision was a reasonable decision in the circumstances.
In terms of the person’s employment he or she may be subject to internal discipline regardless of the outcome for the patient, though hopefully an ambulance service wants a good outcome for the patient. If it turns out it was a good outcome that meant the patient did not need transport to hospital, then that is providing ‘good service’ and probably everyone’s happy. The implications then are the paramedic gets a pat on the back for using initiative and delivering good care.
In terms of liability I would suggest that if the patient suffered a harm the employing ambulance service would be liable. And don’t start the rhetoric that they would not be because the paramedic did not follow the scope of practice. The issue from the plaintiff/patient’s point of view is:
I called an ambulance; an Ambulance came; a person who was clearly an employee of the ambulance service provided health care which is the very job he or she is employed to do; he or she was negligent; I suffered harm; the employer is vicariously liable. How do I prove they were negligent? They acted outside their practice guidelines when a reasonable paramedic would not have done that.
The departure from the CPGs is the proof of negligence and the employer is vicariously liable when the employee is negligent (see Queensland Court of Appeal finds paramedic was negligent in treatment of extreme asthma (May 11, 2019; noting this case is making its way to the High Court) and State of Queensland STILL liable for paramedic negligence (October 25, 2017). The departure is what makes the employer liable, not what allows them to get out of liability.
It is only if the departure was so gross and extreme that it could be said the paramedic was on a frolic of their own (eg by charging the patient a fee to provide an alternative service) that vicarious liability can be avoided. But do remember that schools are being held liable for the sexual abuse of students by teachers when that is clearly not part of the job description. In Prince Alfred College Incorporated v ADC [2016] HCA 37, French CJ, Kiefel, Bell, Keane and Nettle JJ said (at [39]-[41] and [81]):
Vicarious liability is imposed despite the employer not itself being at fault…
The traditional method of the common law of confining liability … is the requirement that the employee’s wrongful act be committed in the course or scope of employment…
Difficulties, however, often attend an enquiry as to whether an act can be said to be in the course or scope of employment.
… the relevant approach is to consider any special role that the employer has assigned to the employee and the position in which the employee is thereby placed vis-à-vis the victim. In determining whether the apparent performance of such a role may be said to give the “occasion” for the wrongful act, particular features may be taken into account. They include authority, power, trust, control and the ability to achieve intimacy with the victim.
When a person calls for an ambulance it is the employing ambulance service that despatches the paramedic and particular features are that paramedics are in authority, exercise power, rely on trust and have the ability to be in intimate position with the patient. What we’re describing here is not sexual assault of the patient, but the analogy is still good. The paramedic arrives, the patient trusts the paramedic to provide good care and by being in uniform with the word ‘paramedic’ on their shirt they are being held out as a person who can be trusted, the paramedic is there in response to a call to the employer and is placed in that position of authority and trust by the employer. If they harm the patient it is the employer (which, in every case other than NT and WA, is the state) that has the funds to pay; the paramedic does not. The employer will be liable for the departure by the paramedic even though ‘the employer not itself being at fault’.
Conclusion
What are the implications of a paramedic performing a (generally considered safe) non-invasive procedure for a condition they’re familiar with but falls outside their clinical scope?
The paramedic has to take responsibility for his or her decision making. If there are no adverse consequences for the patient that may not mean much; it may even mean a nice thank you letter! However, regardless of the outcome, he or she may be subject to internal discipline and if their conduct is not good paramedic practice, he or she may be subject to professional discipline. One may think that’s unlikely if there are no adverse consequences but that is not the sole test. Sometimes a departure from procedure has to be sanctioned even if by sheer dumb luck it works out for the best.
If the patient is harmed, I suggest that the employer would be vicariously liable for any harm done, that’s not to deny that there may not be some push and shove between the employer’s insurer and the paramedics insurer, if he or she has one.
Where the treatment is something that can be done by patients and where ‘No serious adverse effects have been reported’ the risk of any adverse ‘implication’ would, I suggest, be very low.
Australian Emergency Law 
There are many things that cause vertigo, nausea and vomiting; BPPV is one of a myriad of reasons. I personally think If an experienced GP, who I would presume has a higher level of medical training than Paramedics, has made the decision that the Patient needs to be transferred to an Emergency Department for further assessment to exclude sinister pathologies such as a stroke of the posterior circulation of the brain that can cause similar symptoms with an urgent CT-scan, then the Paramedic should take the Patient regardless and not refuse or delay transport in order to perform this manouvre for a presumed diagnosis of BPPV. I personally have no issue with Paramedics attempting and intiating appropriate and reasonable treatment, so long as they receive the appropraite training for it. I do have issues if Paramedics therefore use this as an alternative not to transport patients and make presumptive diagnosis without further investigation despite the plan by the GP already to refer the patient the ED.
All of that’s true but the question was what are the implications of the decision not whether it was a clinically sound decision. This is a law blog not a medical procedure blog. The implications are that a person is professionally responsible for the decisions they make and whilst the scenario gave the context it was not really relevant to the answer. The conclusion was the same as yours there is ‘no issue with Paramedics attempting and initiating appropriate and reasonable treatment, so long as they receive the appropriate training for it’.
This is where a robust variation to practice guideline needs to be in place. This seems like a sensible treatment approach to take. Documenting variations to practice allows for an evidence based approach to evolving paramedic guidelines. Encourage paramedics to report not hide in the shadows (like we used too)
In addition to the possibility of ‘Internal Discipline’ there is now the possibility of AHPRA getting involved and I suspect that AHPRA are risk adverse.
Rusty, I think that is too simple. The question was ‘What are the implications of a paramedic performing a (generally considered safe) non-invasive procedure for a condition they’re familiar with but falls outside their clinical scope?… The local clinical practise guidelines don’t cover…’ the condition or treatment involved.
First remember AHPRA is the Australian Health Practitioner Regulation Agency. “AHPRA supports the 15 National Boards that are responsible for regulating the health professions. The primary role of the National Boards is to protect the public and they set standards and policies that all registered health practitioners must meet.’ It is the National Board (in this case the Paramedicine Board, a performance and professional standards panel or a relevant tribunal that makes decisions on whether or not the conduct of a paramedic is ‘unsatisfactory professional performance’ or ‘professional misconduct’.
I don’t think AHPRA, the Board a panel or a tribunal are going to get involved in a paramedic providing treatment outside ‘clinical scope’ if by that we mean the scope set by their employer. As noted the law is not a scope of practice law, it’s about protection of title and imposing obligations on paramedics to determine their own scope of practice and competencies. So if the paramedic provides treatment that they know how to provide, are competent to provide and benefits the patient, there is no role for the regulators even though the employer may have something to say.
If the paramedic provides treatment that he or she is not competent to provide then they may involved because it is about danger to the patient not the employer/employee relationship. The issue with this question is that you can substitute any treatment and any condition for the scenario, the answer is the same. The paramedic is responsible for his or her decision making. If they perform a treatment they don’t know how to do that may be a matter for professional discipline. If they perform a treatment that is clinically indicated and in a competent manner based on their training and experience, the employer/employee relationship is not going to interest the national board.