3 Chapter 3 Paramedic Professionalism

Whether a disclosure based on the public interest is justified is a difficult issue to assess and answer. There will need to be real and foreseeable elements to help determine the decision to disclose into the public space certain confidential information. This might be urgency: an impending or immediate danger. This would only be used to authorise disclosure to relevant authority in order to prevent or minimise risk of danger. A decision to breach patient confidentiality needs to also be balanced against the risk of:

• Breach of Hospital and Health Boards Act 2011 (Qld) results in an offence being committed (fine or possibly jail time)
• Healthcare providers may also be sued in the civil courts by patients for breach of confidentiality
• Damages may be awarded to the patient for any injury or harm caused by a breach of confidentiality
• A health professional who breaches a patient’s confidence may be guilty of professional misconduct
• A breach of the ethical rules set out in Code of Ethics & Code of Conduct may lead to disciplinary action being commenced against the health care professional

To understand the justification for PIDs in a healthcare context better we need to revisit our old friend utilitarianism:

The justification for upholding patient confidentiality is overshadowed by the justification for breaching patient confidentiality. Confidentiality can only be breached based on the principle that the risk of not doing so is proportionate to the risk of harm occurring. If we don’t uphold patient confidentiality this could impact help seeking behaviours. This speaks in part to the mandatory reporting of HCPs to the regulatory body and on some of the controversy that underpins mandatory reporting. Ultimately, the primacy of confidentiality in healthcare promotes patients presentating for treatment and making full disclosure of relevant information. It enables effective medical treatment to be provided to members of a community and containment of illness and disease in society. It upholds faith in the system. I’m going to leave the final words to the court in X v Y [1988] 2 All ER 648:

In the long run, preservation of confidentiality is the only way of securing public health; otherwise doctors will be discredited as source of education, for future individual patients will not come forward if doctors are going to squeal on them. Consequently, confidentiality is vital to secure public as well as private health, for unless those infected come forward they cannot be counselled and self-treatment does not provide the best care … If people felt that there was any chance of information given to their doctor, or the doctor’s diagnosis, being passed on, people would be reluctant to seek advice and the disease would go underground. Confidentiality must be absolute or almost absolute.

How are you feeling at this point? You will be wondering how many of these sections will you need to memorise. The answer is simple: all of them. No, not really. I know there is a lot of information here, but it is important you leave this section with a broad understanding of upholding confidentiality in the context of professionalism. You are entitled to share patient information but only where it is justified by law. Otherwise, you are bound to uphold and maintain patient confidentiality. There will be times you will be uncertain, and some people can be persuasive if they want to obtain information from you, but your duty is to your patient. If you are uncertain, ask. A consult line is a wonderful thing. Use it.

3.8.2 Privacy and patient documentation

What? You mean we haven’t even got onto documentation? Yup, that’s right. There’s still a way to go. Personal information and privacy go together like hand in glove. Reasons for protecting individual right to privacy are numerous. They can include protection from unwarranted interference, illegally obtaining personal details to commit fraud, uphold and protect reputation, have personal information used for unintended purposes. Here are some example of private information:

• Personal details
  • Name
  • Gender
  • Address
  • Date of birth
  • Email address
  • Drivers licence number
  • Physical characteristics
• Sensitive information
  • Political beliefs
  • Religious beliefs
  • Medical records
    • Prescription medication records
  • Disability status
• Employment information
  • Human Resource records
  • Superannuation statements
  • Tax status
  • Pre-tax adjustments

Of course, there is going to be legislation that operates in this area. Statutes exist at both a state and federal level.

• Privacy Act 1988 (Cth)
  • Creates 11 Information Privacy Principles (IPPs) which apply to the Commonwealth public sector and have been extended to apply to the private sector in the form of National Privacy Principles (NPPs)
• Information Privacy Act 2009 (Qld)
  • Adopts the IPPs (for public sector agencies) and NPPs (for Queensland Health)

Section 12 Information Privacy Act 2009 (Qld) describes personal information:

Personal information is information or an opinion, including information or an opinion forming part of a database, whether true or not, and whether recorded in a material form or not, about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion.

Paramedics can reveal all kinds of personal information inadvertently. Your phone is recording where you are all the time, often under the guise of health data. It lets you know what the weather for the suburb you are in without you having to do anything. It tells you how many steps you’ve walked, how many calories you’ve burnt. Ask your phone something and who knows, the next time you open social media you might see some adverts related to some inane or innocuous question you asked one of the many digital assistants available on the market.

HCPs record sensitive information all the time. You do it so often that you probably forget the privilege you have obtaining access to this type information. Patient records serve several functions:

• Provide a historical account of a patient’s health care experience
• With the consent of the patient, a patient’s records may be used for teaching, quality and research purposes
• Relevant records may be subpoenaed and used in civil and criminal proceedings

 

In a civil action records may be used to either prove or refute a claim of negligence on the part of health carers or be used in an action against a health care facility. In criminal proceedings, a patient’s records may be used as evidence to support a complaint of assault or provide evidence that an injury occurred & show nature and extent of injury.

When you record something on a patient’s record you have to understand it won’t be your intended audience who will read the patient record. You might think that only other HCPs will read it, or paramedics auditing your paperwork will read it. Anyone with a vested interest in the documentation may be granted access to it. This could include the patient, lawyers, insurers to name only a few. When you document something, make sure that you consider the unintended audience. This can prevent you from feeling professionally embarrassed or even have your professional conduct called into question.

*Look, this bit is important*

*Please read*

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When you document something, the criteria you must achieve is everything you write or communicate is accurate, objective and true. Work from the premise that if you didn’t write it down, it didn’t happen. Furthermore, if it didn’t happen or you didn’t observe it then do not write it down, ever. This means if the patient’s respiratory rate is 14, this is based on you counting it, not looking up, glancing at the patient and then writing down 14 for respiratory rate. You will get away with it for so long and then you won’t. This conduct and conduct like this can form part of a fitness to practise hearing and then you will wish you had put your hand on the patient’s chest, looked at your watch and counted the respiratory rate accurately. Don’t be slack. Always, and I mean always offer gifts to your future self. Doing things right the first time is a way of being good to a future version of you, who will only have to shoulder the burden of having to deal with it if you don’t do it right and they will be angry at you, so angry.

A good way to think about documentation is documentation has its own set of ABCs:

1. Accuracy
2. Brevity
3. Clarity

You must add truthfulness to this. By truth, I mean factual truthfulness, not the truth you think should exist. Don’t massage it. In case passive aggressive behaviour is your thing, then the paperwork is not the place to be that person. Bad paperwork is a bit like a mixtape. All the songs and all the lyrics have meaning for you. When you share it with someone else, and they don’t get it, and let’s be honest they were never going to get it, and you’re all crestfallen because you poured all your feelings into selecting each track. Just think had you been factual and truthful you’d probably be on that date. Instead, it’s Saturday night and you’re reading documentation jumble noise with a pop tart chip sandwich for company. Got it? Good.

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*Please read*

*Look, this bit is important*

What else as well as accurate, objective and truthful? There’s some gold advice from Crystal Nelson in the podcast so I’ll leave that for Crystal to tell you about it. The other thing is, you must sign the document … with your signature … Y-O-U-R S-I-G-N-A-T-U-R-E. Not initials, not a smiley face, not your crewmate’s signature. Don’t give people reason to doubt your professional character. The war is not fought in the patient’s record.

Here are some additional guidelines for good report writing to not only protects your patient, it will protect you too in the event your paperwork is audited. Patient records must be accurate, complete, contemporaneous, legible and objective. Accuracy is essential – it is important to distinguish between what is personally observed to what is related to the patient’s complaint or illness or injury. In ensuring records are complete, reference should be made where a patient refuses any treatment or medication or acts in a manner contrary to healthcare advice. It is important to provide complete reports but to keep information succinct. Reports should be brief and not include unnecessary detail. Reports should be legibly written, incorrect interpretation of a person’s handwriting can lead to mistakes. Reports should be written objectively. What is required, is an objective, definite and definitive statement of fact by you, the person responsible to the patient for their care.  Do not use derogatory, abusive, prejudicial language. Although, I wonder how many times you will write a statement like, Pt told crew to f*** off, in your careers? Many paramedics revel in writing statements like this. It’s one of their secret joys.

• Only write facts
• Record what you heard, saw or did
• Provide clinical information – measurements of clinical signs and results

Entries in records should be made contemporaneously (at the time the incident occurs). It is good practice to make a relevant entry as soon as possible after an incident or an episode of care occurs. HCPs will have better recall of event if recorded at the time. This final point is important. Sometimes demand outstrips available resources. This may mean you do not complete the patient record before getting dispatched to another incident. Sometimes, you will have to access your paperwork again. Depending on the system you use, you may have to provide justification for doing so. There is nothing wrong with this. It helps someone accessing your paperwork understand why you didn’t complete your paperwork before attending another job and completing your paperwork several hours later. It is possible you forgot to include information as well. Check with your service on their policy on this but I would not have an issue you with as long as an adequate and reasonable justification is provided for doing so. If the information is not recorded on the health record, then the court will presume that it did not occur. The court will essentially view the record as regular, complete, and an accurate statement of the events, unless evidence can be submitted to the contrary.^[21]

Never, ever falsify records. EVER:

• HCCC v Thompson (No 1) [2012] NSWNMT 13
• Kent v Griffiths [2000] 2 All ER 474

What are the consequences for getting it wrong? Are you kidding? What chapter have you been reading? I’ve laid it all out for you. I just want you to look after your patients, retain your registration and your employment.

Just a final recap of your responsibilities in relation to communication, documentation and record keeping:

• Act ethically
  • Respects patient’s autonomy
  • Respects patient dignity
  • Respects patient’s right to privacy
• Act legally
  • Confidentiality
  • Privacy
  • Health Care Documentation
  • Access to Health Records

That’s got to be the end of the chapter? Nope, not even close. Now we discuss professionalism in the context of employment law. I told you it was going to be a big chapter.

3.9 Employment Law

Let us now imagine, for a moment, each and everyone’s future. Except mine. I don’t want to think about that. We’re talking 3-4 years down the line. You’ve graduated, you’ve received your letter of acceptance from the employer of your dreams and you are about to become an employee of an ambulance service or other health service. You will have to sign an employment contract to establish a relationship at law between you and your new employer. A contract is a legally binding agreement between two parties who have come together freely for the purpose of exchange or to provide a service. For an employment contract to exist there must be:

• Acceptance
• Communication
• Certainty
• Consideration
• Capacity and consent
• Legality

Within that employment contract there will be express terms (written or spoken terms) and implied terms that relate to conduct and functionality. For example, no employment contract will ever explicitly prevent you from arriving at work looking like something the cat has dragged in, dishevelled and hungover. Just because it’s not written down does not mean you can rely on it if your boss instructs you to go home on the basis you are not fit for duty. It is a given that conduct of this nature is unacceptable, and no ordinary, reasonable person would ever consider this acceptable. I am tempted to write about mandatory drug and alcohol testing by employers, but I will resist the urge. Instead, I’ll focus on the nature of implied terms in an employment contract. According to the case of BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 266, the implied term:

• must be reasonable and equitable;
• must be necessary to give business efficacy to the contract, so that no term will be implied if the contract is effective without it;
• must be so obvious that ‘it goes without saying’;
• must be capable of clear expression;
• must not contradict any express term of the contract.

Not everything written in your employment contract forms part of your employment contract. The additional aspect to consider is the unilateral nature of employment contract negotiation. For large organisations and for most employees’ terms and conditions are standard. If the employer states you are going to get 20 days holidays per annum and you try to negotiate for 30, you’ve just won your no longer future employer’s absence of confidence. Sure, some terms and conditions can be negotiated but most are standard and operate across the strata of employer and employee relations. It is the norm in most institutions and organisations that the employer negotiates with the employees’ union. This saves time, effort and energy. It becomes inoperable to negotiate individual employee contracts if the employer’s staff runs to the hundreds if not thousands of employees. This is where enterprise bargaining and enterprise agreements take place. Collective bargaining is the term used between parties that leads to agreement. Employees will not be able to negotiate individually for every component term and condition of employment, whether expressly stated or implied. However, this does not mean employees do not have a personal and individual relationship with their employer. Every employee is different and there are times where the contract will need to have some degree of flexibility built into to support an employee experiencing a disruption, unless that disruption is a prison sentence. Good luck returning to your previous employer after time spent at her majesty’s pleasure. The doctrine of privity of contract allows parties to the contract to be entitled to a lawful remedy should the contract fail. However, enterprise agreements and bargaining make it possible for a union to negotiate on the employee’s behalf without making the employment contract invalid and offending the doctrine of privity of contract.

Employment law is governed, generally, by federal legislation. Section 61(2) Fair Work Act 2009 (Cth) is responsible for the National Employment Standards. These are minimum standards applying to employment of employees and relate to the following matters:

• (a) maximum weekly hours;
• (b) requests for flexible working arrangements;
• (c) parental leave and related entitlements;
• (d) annual leave;
• (e) personal/carer’s leave, compassionate leave and unpaid family and domestic violence leave;
• (f) community service leave;
• (g) long service leave;
• (h) public holidays;
• (i) notice of termination and redundancy pay;
• (j) Fair Work Information Statement.

According to the Fair Work Act 2009, the maximum number of weekly hours in Australia is 38 hours. How many full-time HCPs work a maximum of 38 hours? Don’t answer. Incidental overtime is woven into the fabric of ambulance service delivery. If you don’t know what I mean just try to make plans after a 12-hour day shift. The legislation states additional hours can be reasonable or they can be unreasonable. You will be on a fool’s errand if you refuse to attend an emergency with 10 minutes of your shift to go despite the inevitability of incurring incidental overtime. Like I said, a fool’s errand. If you try it, don’t say I didn’t warn you. This needs to be read in conjunction with s62(3)(g) Fair Work Act 2009 (Cth) which relates to the usual patterns of work in the industry, or the part of an industry, in which the employee works.

Not only will your employment contract relate to remuneration it will relate to compensation if you suffer a loss during the course of your employment. By loss, I mean you suffer an injury. Employees are injured at work and sometimes tragically die while undertaking duties. Employers owe a duty to their employees. In the case of Johnstone v Bloomsbury Health Authority [1991] 2 WLR 1362 a junior doctor was required to work in excess of contracted hours, which was detrimental to health. The employing health authority failed in its duty to prevent unnecessary risk of harm. Now contrast this with the case of Koehler v Cerebos (Australia) Limited (2005) 222 CLR 44 where an employee renegotiated her hours of work. She claimed her workload made it impossible for her to perform the work in the allotted time and contributed to ill health. Her injuries were not reasonably foreseeable and her claim failed.

Where compensation is awarded is considered to be a sum of money in the form of damages that is made payable to an innocent party, due to a failure of performance as set out by the terms of the employment contract. It speaks to the nature and purpose of damages where negligence has been established. In the case of Livingstone v Raywards Coal Company (1880) 4 App Cas 25, Lord Blackburn stated:

“I do not think there is any difference of opinion as to its being a general rule that, where any injury is to be compensated by damages you should as nearly as possible get at that sum of money which will put the party who has been injured, or who has suffered, in the same position as he would have been in if he had not sustained the wrong for which he is now getting his compensation or reparation”.

Additionally, an employee’s conduct may lead to a person suffering harm or a loss. We have already established the role of the regulatory body investigating a paramedic’s capability and their fitness to practise. However, Vicarious liability compels the employer to accept liability for the employee’s wrongful acts or omissions. In the case of Lister and others v Helsley Hall Ltd [2001] 2 WLR 1311 the employer was held vicariously liable to victims of sexual abuse perpetrated by the defendant’s employee. This case tells us that an employer may be held responsible for acts or omissions that occur as part of the role not considered to form part of their contractual duties. This is an important feature not just of employment law but professionalism more generally. Just because an event occurs outside of normal working hours but in the context of an employment relationship, there can still be consequences for both the employer and employee. An offence need not take place on the employer’s property or during work hours.^[22] However an employer is not usually vicariously liable for the conduct of an employee if the employee is “on a frolic of their own”.^[23]

The final topic for this section is terminating the employment contract. If an employee contract can be formed, it can be terminated. Employees can terminate their contract in a variety of ways. Commonly, an employee will terminate a contract by serving their current employer with notice to leave their employment. Alternatively, an employee’s contract can be terminated based on their conduct. If an employee does not conform to the terms and conditions of the employment contract the contract will be terminated based on the employee’s failure to meet their agreement to do their job. In addition to this, employees can be made redundant based on a change or downturn in business. Whatever the basis of the termination, it can either be lawful, wrongful, unfair or constructive.

Article 11, Termination of Employment Convention 1982 (International Labour Organization Convention: C158) protects against arbitrary termination of contract:

A worker whose employment is to be terminated shall be entitled to a reasonable period of notice or compensation in lieu thereof, unless he is guilty of serious misconduct, that is, misconduct of such a nature that it would be unreasonable to require the employer to continue his employment during the notice period.

Whatever the basis of the termination, it can either be lawful, unlawful/wrongful, unfair or constructive.

• Unlawful or wrongful dismissal is based on the grounds of discrimination and can occur as a result of unlawful treatment of another based on:
  • Gender
  • Race
  • Disability
  • Sexuality
  • Religion
  • Age
• Unfair dismissal is based on the following:
  • Harsh
  • Unjust
  • Unreasonable
• Constructive dismissal is based on the following:
  • Unreasonable behaviour demonstrated by the employer
  • The employee resigns as a result

I’ll talk to discrimination and constructive dismissal in the context of employment in the section below. Just because an individual’s employment is terminated does not make the termination lawful necessarily.

3.10 Discrimination

Anytime anything is referred to as being unlawful the contrast should also be acknowledged. In this case the antithesis to unlawful is lawful. If we talk of unlawful killing, then the inclusion of the word unlawful means that the law can recognise lawful killing in limited circumstances. The same is true for discrimination. Not all discrimination is unlawful, therefore when we prefix discrimination with unlawful, we also need to acknowledge when discrimination is considered lawful. Some jobs have an inherent requirement aspect to them to prevent some people from undertaking jobs they cannot perform based on a variety of characteristics. For example, a registered blind, visually absent applicant to an ambulance service would have their application declined on the basis that their impairment prevents them from carrying out duties inherent to the role. Unless advancements in prosthesis have developed, a double upper limb amputee will unlikely qualify to work as a paramedic. Not all disabilities prevent people from qualifying as paramedics and nurses, but the nature of the roles compared to their disability will dictate the likelihood a person will be able to undertake the role competently and effectively.

I am going to make another one of my bold claims that may not be factually accurate and state that the number of unlawful discriminations outnumber by far the number of times the inherent requirement defence can be relied upon. Unlawful discrimination can be broken down into direct and indirect discrimination. Direct discrimination is found if treating an employee less favourably than another based on, although not exclusively, race, sex, age, disability, religion or sexuality.^[24] Indirect discrimination occurs when an employee is unable to comply, for example, with a policy decision based on sex, age, race, disability.^[25] An example is if an ambulance service were to advertise for paramedics and state that applicants as a minimum requirement must be a height of 6’2’’ or taller. Discrimination based on gender is not obvious here but if you consider height in the general population, more males than females will be 6’2” and above, hence why any female applicant could complain based on unlawful indirect discrimination based on gender.

A mixture of federal and state legislation governs responses to discrimination:

• Age Discrimination Act 2004 (Cth)
• Disability Discrimination Act 1992 (Cth)
• Racial Discrimination Act 1975 (Cth)
• Sex Discrimination Act 1984 (Cth)
• Anti-Discrimination Act 1991 (Qld)

Now, I really ought to make reference to the Human Rights Act 2019 (Qld) here but I’m not going to. I’m going to wait and talk about human rights later. It’s my Pressbook. I can do what I want … Leave your feedback … See if I care… No, wait. I do care. Sorry. Ahem… The reason I’m not going to discuss the Human Rights Act 2019 (Qld) is because I want to discuss human rights in the context of several related subjects. Although human rights are wedded to anti-discrimination legislation, the Human Rights Act 2019 (Qld) is a brand-new piece of legislation for Queensland and it will take time for it to find its natural place in court judgments. Also, there are more questions waiting to be answered than answers ready to be provided in terms of human rights in Queensland. For those of you who have a burning desire for all things human rights and can’t wait until then, here’s a link to the Queensland Human Rights Commission. It’s way better than TikTok. Okay, maybe not. Perhaps that’s the wrong comparison to make.

3.10.1 Bullying and harassment

Bullying and harassment is distinct from discrimination, but only to a point, bullying is demeaning behaviour directed toward an employee or employees that can include anything that can be considered to cause offense; harassment encompasses any activity that is considered inappropriate and not conducive to the workplace. Should this behaviour contain a sexual or racial element, for example, such alleged violations may invoke discrimination legislation also. The offence need not take place on the employer’s property or during work hours.^[26] (I’ve already said this but it’s really important,  so I am repeating it again.)

Bullying and harassment can include, but is not limited to:

• Unequivocal threats
• Lewd comments
• Gestures
• Ignoring fellow employees
• Sexual advances
• Sexual conduct

The test to determine whether an offence of sexual harassment has occurred is objective and the courts will use the reasonable person test, which asks if a reasonable person, when faced with the same set of facts and circumstances, would have been offended.

Employers have a duty to their employees to provide a safe working environment. In the case of Bailey v Peakhurst Bowling and Recreation Club Ltd (2009) NSWDC 284 it was held that the plaintiff took action against her employer following a period of bullying by her supervisor. The employer owed the plaintiff a duty of care to provide a safe working environment, and the plaintiff was duly awarded damages for injuries suffered and for projected loss of earnings. In the case of WorkSafe Victoria v Map Foundation Pty Limited trading as Café Vamp and Ors (Magistrates Court of Victoria, 8 February 2010) a waitress was bullied so severely she died due to suicide. The perpetrators were held accountable as was the employer for not taking steps to halt the harassment. Significant fines were issued to the culpable.

Without detracting from the condemnation of the behaviour described above the case of LHMU v Queensland Ambulance Service (2006) QIRComm 58 acknowledged the culture of gallows humour present in emergency services. I would go so far to say there is a sympathy for staff who participate in gallows humour based on what it offers in terms of self-preservation. If we didn’t laugh, we’d cry type of mentality. However, conduct of this nature is only excusable by so far. There is a thin line between making an indecorous remark for the purpose of defusing tension around a situation and being offensive. Both paramedics and nursing possess a culture that shows one side to the public and one side to their profession privately. Expressing yourself is but one way to prevent compassion fatigue or unhealthy levels of stress when faced with traumatic situations from coming to the fore. However, if you remove the context the remarks are made, and a persistence to revel in societal odium without any need or benefit, you will reveal the underpinnings of pathology in the overwhelming face of trauma. And that folks, is post-traumatic stress disorder. A word to the wise, keep a balance in your life. Nursing and paramedicine can get under your skin. You may not realise early on because normal is a construct. Be kind and forgive others, and above all learn to be kind and forgive yourselves.

3.10.2 Public interest disclosures

Whistleblowing or public interest disclosures (PIDs) occur when an employee perceives wrongdoing or an act by an organisation that is significant enough to justify a public interest disclosure by an employee. It even has its own statute in Queensland; the Public Interest Disclosure Act 2010 (Qld), but you probably suspected as much. PIDs are investigated by the Queensland Ombudsman. Any act or omission sufficiently seriousness in nature warrants disclosure in the name of public interest, that is the act or omission should be revealed to the public domain. Any person can make a PID based on it being in relation to:

• (a) a substantial and specific danger to the health or safety of a person with a disability; or
• (b) the commission of an offence against a provision mentioned in schedule 2, if the commission of the offence is or would be a substantial and specific danger to the environment; or
• (c) a contravention of a condition imposed under a provision mentioned in schedule 2, if the contravention is or would be a substantial and specific danger to the environment; or
• the conduct of another person that could, if proved, be a reprisal.^[27]

Paragraph (d) is important. Making a PID can be a long and lonely road and it is normal to feel concerned about reprisal. Section 40 Public Interest Disclosure Act 2010 (Qld) states:

(1) A person must not cause, or attempt or conspire to cause, detriment to another person because, or in the belief that—

(a) the other person or someone else has made, or intends to make, a public interest disclosure; or

(b) the other person or someone else is, has been, or intends to be, involved in a proceeding under the Act against any person.

Think of all the whistleblowers you know. A hero to be admired and revered? Or, a villain to be censured and despised?

Here’s a list to get you reflecting:

• Li Wenliang
• Edward Snowden
• Chelsea Manning
• Kathryn Bolkovac
• Jeffrey Wigand
• And our old friend, can’t I just pay for it and get what I want, former New York City cop, Frank Serpico

Like I said, it is a long and lonely road but one that the righteous must travel.

3.11 Workplace Health & Safety (WHS)

As stated previously, employers have a duty to act as reasonably as possible and ensure the safety of their employees. According to the case of Wyong Shire Council v Shirt (1980) 146 CLR 40 there must be a magnitude of risk, risks need to be reasonably foreseeable and a degree of probability that the risk could occur must be present. According to the International Labour Organisation’s Occupational Safety and Health Convention 1981 (No. 155), the aim of [workplace health and safety] policy is to prevent accidents and injury to health, linked with or occurring in the course of work, by minimising, so far as is reasonably practicable, the causes of hazards inherent in the working environment. Paramedics and nurses can find themselves working in uncontrolled environments and events can occur that lead to an employee suffering harm.

According to section 18 Work Health and Safety Act 2011 (Qld) what is reasonably practicable in ensuring health and safety is in relation to a duty to ensure health and safety, this means that which is, or was at a particular time, reasonably able to be done in relation to ensuring health and safety, taking into account and weighing up all relevant matters including—

(a) the likelihood of the hazard or the risk concerned occurring; and

(b) the degree of harm that might result from the hazard or the risk; and

(c) what the person concerned knows, or ought reasonably to know, about—

(i) the hazard or the risk; and

(ii) ways of eliminating or minimising the risk; and

(d) the availability and suitability of ways to eliminate or minimise the risk; and

(e) after assessing the extent of the risk and the available ways of eliminating or minimising the risk, the cost associated with available ways of eliminating or minimising the risk, including whether the cost is grossly disproportionate to the risk.

In addition to this section 9 Civil Liability Act 2003 (Qld) states:

(1) A person does not breach a duty to take precautions against a risk of harm unless—

(a) the risk was foreseeable (that is, it is a risk of which the person knew or ought reasonably to have known); and

(b) the risk was not insignificant; and

(c) in the circumstances, a reasonable person in the position of the person would have taken the precautions.

(2) In deciding whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (among other relevant things)—

(a) the probability that the harm would occur if care were not taken;

(b) the likely seriousness of the harm;

(c) the burden of taking precautions to avoid the risk of harm;

(d) the social utility of the activity that creates the risk of harm.

The two cases here represent how the courts view occupational safety. In the case of NSW v Fahy (2007) 232 CLR 486 the plaintiff police officer developed post-traumatic stress disorder related to her support of a grievously injured victim of a stabbing. She claimed she should not have been left alone with the injured party. The plaintiff failed in her claim against her employer. In the case of Hegarty v Queensland Ambulance Service (2007) QCA 366, the plaintiff was exposed to numerous traumatic events over a 15-year period. Initially plaintiff was successful and awarded damages, but verdict was overturned on appeal. The outcome of this case led to the creation of the Priority One support service. It is worth considering whether some professions are expected to expose themselves to risk over and above that of the ordinary citizen. Handy for you lot. I can explore this in the context of the pandemic that is COVID-19.

3.11.1 COVID-19

We can’t leave this chapter without talking about COVID-19. The COVID-19 Emergency Response Act 2020 (Qld) is:

An Act to protect the health, safety and welfare of persons affected by the COVID-19 emergency, to facilitate the continuance of public administration, judicial process, small business and other activities disrupted by the COVID-19 emergency, including by easing regulatory requirements and establishing an office of small business commissioner, to provide for matters related to residential, retail and prescribed leases affected by the COVID-19 emergency and to support the Queensland rental sector during the COVID-19 emergency period.

COVID-19 has left its mark on all of us as indelible as any tattoo. From a paramedic perspective, what’s the first thing you learnt as a nascent paramedic student or paramedic combined with nursing student? That’s easy. Danger.

Danger, danger I’m checking for danger. Danger, I’m always checking for danger and there is never any. It’s a classroom for crying out loud. In the classroom apart from the danger of becoming bored always checking for danger without there ever actually being danger, danger is a priority for all front-line HCPs.

Whether we like it or not, there is an element of danger to be a paramedic and to be a nurse. Forgive me for talking to the paramedics here, it’s the profession I identify with and am bound to it through recollection. Working in the community has its risks. The clinical setting is usually well lit, well-resourced and depending on the hospital you work there is generally security on site. Whereas, with paramedics you might status Lima Romeo and they will respond but only as quick as they can and depending how near. The shootings at Highmoor Cross took place in the UK well over a decade ago but it helps to illustrate the application of commission in the face of danger.^[28] It appears from the inquiry into the fatal shootings and subsequent police and paramedic response is it is incumbent upon emergency services to respond to situations where there is not the same expectation for the public.

Translating this to COVID-19, the same principle corresponds. Now, everyone has a different appetite for risk, and I am certainly not advocating a cavalier attitude to health and safety. On an individual level, the public’s expectation to a timely response should be met. This needs to be contrasted with administrations’ responsibilities to procure and distribute effective PPE as well as act on the best available public health advice. COVID-19 has demonstrated gross inequalities in jurisdictions’ approaches to the pandemic. Every claim of insufficient personal protection equipment (PPE) provision to front-line staff is valid. Despite COVID-19 there remains a duty to provide care that balances health professionals’ safety. Like a major incident played out on a global scale, COVID-19 has highlighted the sacrifices that some professions make to ensure the safety, health and well-being of the majority. In an ideal world everyone should be able to perform their occupation to the best of their ability with the right equipment to perform their role effectively. But we don’t live in an ideal world, do we?

3.12 Final word – too long didn’t read

I bet you thought you’d never get to the end of that chapter. Well, neither did I.

3.13 Case study

Ben is returning from an appointment at a genitourinary medicine (GUM) clinic after coming into contact with trichomonas vaginalis. Ben, who has been married to Lucy for 18 years, has recently been complaining of pain when passing urine. This coincided following Ben having unprotected sex while away on a recent business trip. Distracted, following the diagnosis, and unsure of what and how to tell his wife, Ben crashes his car. He is relatively unharmed, but passers-by have alerted the ambulance service. Prior to the arrival of the ambulance, Ben contacts his wife to let her know that he has crashed the car, he is alright, and can she come out to his location; she agrees.

Aisling is the treating paramedic who attends to Ben. Lucy arrives just as Ben enters the ambulance. Aisling politely asks Lucy to wait outside while she assesses Ben as space is of a premium in the ambulance. During Aisling’s assessment of Ben, he breaks down and tells Aisling everything: his adultery, his trip to the GUM clinic and his diagnosis. She documents this in Ben’s patient health care record. Ben asks Aisling, ‘you won’t tell Lucy, will you? Please don’t tell Lucy’. Lucy, just outside the ambulance, hears, in between the muffled sobs, what she believes to be a confession of adultery made by Ben to Aisling, and mention of an infection; she can’t be certain, however.

At hospital, she demands to see Ben’s patient health care record. She states, by way of justification, ‘He could have given me something. I have a right to know’.

3.14 Further reading

Moritz, Dominique (ed), Paramedic Law and Regulation in Australia (Thomson Reuters (Professional) Australia, 2019) pp 107-125, 127-151, 249-267, 299-327

3.15 Podcast #1

Introducing the wonderful Crystal Nelson who when she did her paramedic degree at QUT, she couldn’t see the point of law and ethics when she was an undergraduate on the paramedic degree program. Now she’s in the final stage of a law degree. What changed?

3.16 Podcast #2

I had a great afternoon talking with Marianna Duce on the topic of discrimination. I hope you get a lot out of it too.