Paramedics - professional misconduct - agreement as to conduct - agreement as to sanction.

Health Practitioners Regulation National Law Act 2009 (Qld); ss 196(2), 3A(1), 3A(2)(b)

Health Practitioners Regulation National Law (Tasmania) 2010.

Medical Board of Australia v Zhao [2021] VCAT 1053;

Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336;

Nursing and Midwifery Board of Australia v Easdon [2024] VCAT 321

Medical Board v McGrath [2014] VCAT 641;

Medical Board of Australia v Serguei Borisovich Kisselev [2023] TASCAT 28.

1. The Paramedicine Board of Australia (the Board) has referred a matter to the Tribunal pursuant to s 193(1)(a)(i) of the Health Practitioner Regulation National Law (the National Law) which was adopted as a law of this State by the Health Practitioner Regulation National Law (Tasmania) 2010. The referral seeks a determination in relation to the respondent arising from his conduct on 14 February 2021 at a time when he was a registered paramedic employed by Ambulance Tasmania.
2. Section 193(1)(a) of the National Law requires inter alia a National Board to refer a matter about a registered health practitioner to a responsible tribunal if the Board reasonably believes after investigation that the practitioner has behaved in a way that constitutes professional misconduct.
3. The Board raised one allegation in relation to the respondent's conduct, the details of which are set out subsequently in this decision.
4. The allegation arose in the context of the respondent refusing to respond to a call for assistance when the respondent was working a shift, and received a call for assistance.

1. The parties have provided to the Tribunal a statement of agreed facts, findings and determinations. The respondent has admitted he engaged in the conduct particularised in the allegation by the Board and further that the conduct particularised amounts to professional misconduct within the meaning of paragraph (a) of the definition of "professional misconduct" contained in s 5 of the National Law.

1. In a situation such as this where the parties have reached an agreed position as regards admitted facts, characterisations of conduct and proposed sanctions, the Tribunal is guided by the principles set out in Medical Board of Australia v Zhao [2021] VCAT 1053 at [9] to [10]:

The law relating to a negotiated settlement, of the kind reflected in the [agreed statement of facts], is well settled and summarised in the following principles:

(a) There is an important public policy document benefit in receiving, and if appropriate, accepting agreed penalty submissions;

(b) A court or tribunal must have regard to any such agreement reached between the parties and should not readily depart form an agreed finding and sanction where a negotiated settlement and proposed penalty are broadly speaking within the permissible range, having regard to all the circumstances; and

(c) It is highly desirable for a tribunal to accept the parties' proposal, provided it is persuaded the agreed outcome is accurate and appropriate and does not represent an arbitrary outcome, but reflects a carefully and extensively negotiated outcome that has proper regard to all relevant facts and circumstances.

However, an agreement between the parties does not automatically determine the outcome and can never supplant the Tribunal's duty to determine the appropriate level of conduct alleged and the determinations to be imposed. The Tribunal must reach appropriate findings and determinations after examining all the circumstances, including the ASOF, applying the statutory definitions and having regard to applicable standards of professional conduct.

1. It is the duty of the Tribunal to determine the facts and the level of conduct alleged and the appropriate sanctions to be imposed in respect of that conduct. No agreement between a regulator and a professional person under review can supplant that duty - see Medical Board v McGrath [2014] VCAT 641 at [19]- [20] and Medical Board of Australia v Serguei Borisovich Kisselev [2023] TASCAT 28 at [37].
2. The civil standard of proof as set out in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 applies. The Tribunal must reach a comfortable level of satisfaction in finding the matters proved on the balance of probability consistent with the seriousness of the allegations and reflecting the serious consequences of any finding.

Background and registration status of the respondent

1. It is agreed between the parties that the respondent commenced working as a paramedic for Ambulance Tasmania in approximately 2005. He was employed in that role until 21 April 2022 when his employment was terminated in relation to the conduct relating to this application. It was further agreed between the parties that the respondent became registered with the Board as a paramedic on 24 December 2018 at a time when the paramedicine profession joined the National Registration and Accreditation Scheme.
2. The parties further agreed that the respondent's registration lapsed on 30 November 2022 by non-renewal, and that the respondent has no relevant notification or disciplinary history. At the relevant time it was also agreed the respondent was required to act in accordance with the Code of Conduct for Paramedics effective from 15 January 2018 to 28 June 2022 referred to by the parties as the "retired code".

1. In accordance with usual Tribunal processes, subsequent to the Tribunal's receipt of the Board's solicitors' initiating application dated 21 March 2024, a series of directions conferences occurred which led to, on 13 November 2024, the Tribunal's receipt of a document signed by both the solicitors for the Board and the representative of the respondent dated 12 November. This document was entitled "Statement of Agreed Facts Findings and Determinations".
2. Respectively, on 14 November 2024 and 18 November 2024 the respondent's representative and the Board's solicitors indicated that they were content for the Tribunal to determine the Board's application on the papers.

The allegation - Refuse to respond to a call for assistance

1. Within its application of 21 March 2024 the Board alleged that on 14 February 2021 during his shift at Smithton for the Tasmanian Ambulance Service the respondent received a call for assistance and did not attend the call as required.
2. The allegation had the following particulars:

7.1 the Respondent's rostered shift on 14 February 2021 concluded at 5:00pm. > > 7.2. the Respondent was the only paramedic on shift in the Smithton area for the entirety of his rostered shift. > > 7.3. the Respondent knew that the next paramedic working in Smithton did not commence his shift until 5:00pm. > > 7.4. at approximately 2:48pm on 14 February 2021, the Respondent received a page notifying him of a Priority 0 emergency requiring his attendance (the P0 page), being a traffic accident at Trowutta Road, Smithton which was approximately a 15 minutes drive from the Branch Station (the incident). > > 7.5 a P0 classification is the highest priority an incident can be assigned, and is the classification assigned to immediately life-threatening emergencies. > > 7.6. at the time the Respondent received the page, he was taking steps to leave Smithton (including signing in his drugs) with a view to travel from Smithton to Devonport, with the intention of arriving in Devonport by the end of his rostered shift at 5:00pm. > > 7.7. after receiving the P0 page, at approximately 2:52 pm, the Respondent contacted the Ambulance Tasmania State Operations Centre (SOC), and advised first Emergency Medical Dispatcher FM, and then Acting Duty Manager ZM, that he would not be attending the incident. > > 7.8. after speaking with the SOC, the Respondent called Acting Duty Manager (North West), EH to discuss his refusal to attend the incident. > > 7.9. EH told the Respondent that the patient was a confirmed fatality on impact, but that she could not discuss the matter further because she was on her way to the incident which was approximately a 50 minute to an hour drive from her location.

1. Section 5 of the National Law provides that professional misconduct of a registered health practitioner includes:

(a) unprofessional conduct by the practitioner that amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience; and

...

(b) conduct of the practitioner, whether occurring in connection with the practice of the health practitioner's profession or not, that is inconsistent with the practitioner being a fit and proper person to hold registration in the profession.

1. As stated by the Tribunal in Nursing and Midwifery Board of Australia v Easdon [2024] VCAT 321 (Easdon) at [75]-[78]:

75. The definition is inclusive. A practitioner may engage in professional misconduct which does not fit neatly into one or other of those categories. Further, the definition does not preclude more than one sub-paragraph applying to particular misconduct. > > 76. Characterising proven conduct is an objective assessment which looks towards the conduct in light of the applicable standards and relevant definitions, rather than matters arising later in time, such as remorse, insight, and rehabilitation. > > 77. In relation to a finding under paragraphs (a) of the definition, the Tribunal must assess the degree of seriousness of the practitioner's conduct having regard to the extent to which the conduct departs from the proper standards of professional conduct of a registered medical practitioner. The gravity of professional misconduct is not measured by reference to the worst cases, but by the extent to which it departs from the proper standards. > > 78. In relation to a finding under paragraph (c) of the definition, the term 'fit and proper person' allows for a wide range of matters to be considered. As stated by the Tribunal in Psychology Board of Australia v Griersmith [2019] VCAT 32 [67]: > > It includes not only whether a person has the necessary honesty, knowledge and ability but also whether the person possesses sufficient moral integrity and rectitude of character to permit them to be accredited to the public as a person to be entrusted with the sort of work the relevant registration or licence entails. The decision maker needs to make a value judgment and, in so doing, must make an assessment of the seriousness or otherwise of the particular conduct for evaluation. The same approach is to be applied to weighing matters in favour of the person.

1. I am satisfied on all the evidence before the Tribunal, noting the agreement as between the parties and the respondent's admission, that the alleged conduct set out in allegation 1 constitutes professional misconduct within the meaning of paragraph (a) of the definition contained in s 5 of the National Law.

1. Based on my consideration of all of the material before the Tribunal I am comfortably satisfied of the following facts in relation to the allegation.
2. As there is relevant context to the respondent's admitted behaviours during his shift on 14 February 2021 set out below are my findings of fact as to this context:
   • On 21 January 2021, Ambulance Tasmania advised employees in the North West region of Tasmania that the North West Region would not be paying travel allowances that did not comply with the relevant awards.
   • On 22 January 2021, the Health & Community Services Union (HACSU) issued a letter to its members. The letter:
     • Suggested that if a member accepted overtime shifts away from their home station, that they request to start at their home station and be allowed to travel from there;
     • Advised that if a member is rostered away from their home station without their express consent, that they can refuse that duty; and
     • Stated that HACSU's "unequivocal advice" was that members not travel in their own time without the payment of travel allowances as compensation and "for now", to only agree to travel in paid work time, in a service vehicle.
   • On 25 January 2021, HACSU issued a further letter to its members. This letter:
     • Advised members to communicate to their local duty manager that they would not accept being rostered at stations away from their home station, and provided example language for such a communication;
     • Advised members not to accept overtime at a station away from their home base unless the shift included time to travel from the home station to the other station; and
     • Stated that in the circumstances, members should only travel in a service vehicle because they should not be allowed to use their own vehicle inside duty time.
   • On Sunday, 31 January 2021, the Respondent emailed the Ambulance Tasmania Duty Managers North West inbox, regarding his shift in Smithton commencing on Tuesday, 2 February 2021. The email stated that the Respondent "assume[d]" that he would start his shift from Devonport at 5:00pm, and queried whether he could travel in a service vehicle or whether he would be paid in kilometres to travel to Smithton.
   • On the same day, Mr CA (Duty Manager - Devonport) responded, advising that the Respondent could "absolutely" start his shift at Devonport at 5:00pm, and requested he call the SOC when he got moving, "so they know what's what". CA advised that he did not think a service vehicle would be available, but that the Respondent would be paid in kilometres via the usual method.
   • The Respondent was ordinarily employed as a paramedic, working out of the Devonport Branch Station (Devonport). However, on 14 February 2021 he was performing duties as a Branch Station Officer out of the Smithton Branch Station (Smithton).

On 11 February 2021, the Respondent had a telephone conversation with two staff members at Ambulance Tasmania, Ms ST and Mr DD. It was agreed that the Respondent's last shift of the variation period on 14 February 2021 would be paid as an overtime shift. This was confirmed in an email from Ms ST of Ambulance Tasmania to the Respondent on 11 February 2021.

1. I find as facts the matters detailed within the allegations made by the Board as detailed in para 15 of this decision as follows:
   • The respondent did not attend the incident.
   • The incident involved one person (the patient), and was a confirmed fatality on impact.
   • The respondent was not aware that the patient was a confirmed fatality on impact at the time he refused to attend the incident at 2:52 pm.

1. The Tribunal has power to make determinations under s 196(2) of the National Law. Section 3A(1) of the National Law provides that, in determining any regulatory action to take, the paramount considerations the Tribunal must take into account are "protection of the public", and "public confidence in the safety of the services provided by registered health practitioners and students".
2. Other guiding principles are contained within s 3A(2)(b) which states that restrictions on the practice of a health professional are to be imposed under the scheme "only if it is necessary to ensure health services are provided safely and are of an appropriate quality".
3. It is clear that a Tribunal's primary role is to protect the public rather than to punish health practitioners who engage in professional misconduct or unprofessional conduct. In appropriate cases, the Tribunal is required to make determinations which will deter the individual health practitioner from engaging in the same or like conduct (specific deterrence), and which also serve as a warning to other health practitioners (general deterrence).

1. The evidence contained within the material before the Tribunal and relied upon by the Board satisfies me to the requisite standard that the allegation against the respondent does constitute professional misconduct.
2. When he indicated that although he had received the P0 page notifying him of the priority 0 emergency requiring his attendance at 2:48 pm on 14 February, the respondent's actions in advising at 2:52 pm that he was finishing his work at Smithton and returning to Devonport and would not be attending this incident, was a clear transgression of his professional responsibility, noting that his rostered shift at Smithton was to conclude at 5:00 pm.
3. At this time the respondent's professional behaviour was subject to the retired Code and it is clear that his conduct constitutes a breach of the following clauses of that Code:

1.2 Professional values and qualities > > While individual practitioners have their own personal beliefs and values, there are certain professional values on which all practitioners are expected to base their practice. These professional values apply to the practitioner's conduct regardless of the setting, including in person and electronically, e.g. social media, e-health etc. > > Practitioners have a duty to make the care of patients or clients their first concern and to practise safely and effectively. They must be ethical and trustworthy. Patients or clients trust practitioners because they believe that, in addition to being competent, practitioners will not take advantage of them and will display qualities such as integrity, truthfulness, dependability and compassion. Patients or clients also rely on practitioners to protect their confidentiality. > > Practitioners have a responsibility to protect and promote the health of individuals and the community. > > Good practice is centred on patients or clients. It involves practitioners understanding that each patient or client is unique and working in partnership with patients or clients, adapting what they do to address the needs and reasonable expectations of each person. This includes cultural awareness: being aware of their own culture and beliefs and respectful of the beliefs and cultures of others, and recognising that these cultural differences may impact on the practitioner-patient/client relationship and on the delivery of services. Good practice also includes being aware that differences such as gender, sexuality, age, belief systems and other anti-discrimination grounds in relevant legislation may influence care needs, and avoiding discrimination on the basis of these differences. > > Effective communication in all forms underpins every aspect of good practice. > > Professionalism embodies all the qualities described here and includes self-awareness and self-reflection. Practitioners are expected to reflect regularly on whether they are practising effectively, on what is happening in their relationships with patients or clients and colleagues, and on their own health and wellbeing. They have a duty to keep their skills and knowledge up to date, refine and develop their clinical judgement as they gain experience, and contribute to their profession. > > Practitioners have a responsibility to recognise and work within the limits of their competence and scope of practice. Scopes of practice vary according to different roles; for example, practitioners, researchers and managers will all have quite different competence and scopes of practice. To illustrate, in relation to working within their scope of practice, practitioners may need to consider whether they have the appropriate qualifications and experience to provide advice on over the counter and scheduled medicines, herbal remedies, vitamin supplements, etc. > > Practitioners should be committed to safety and quality in healthcare (the Australian Commission on Safety and Quality in Health Care is at www.safetyandquality.gov.au - also see the references section at the end of this code). > > 2.2 Good care > > Maintaining a high level of professional competence and conduct is essential for good care. Good practice involves:

a) recognising and working within the limits of a practitioner's competence and scope of practice, which may change over time

b) ensuring that practitioners maintain adequate knowledge and skills to provide safe and effective care

c) when moving into a new area of practice, ensuring that a practitioner has undertaken sufficient training and/or qualifications to achieve competency in that area

d) practising patient/client-centred care, including encouraging patients or clients to take interest in, and responsibility for, the management of their health and supporting them in this

e) maintaining adequate records (see Section 8.4 Health records)

f) considering the balance of benefit and harm in all clinical management decisions

g) communicating effectively with patients or clients (see Section 3.3 Effective communication)

h) providing treatment options based on the best available information and not influenced by financial gain or incentives

1. taking steps to alleviate the symptoms and distress of patients or clients, whether or not a cure is possible

j) supporting the right of the patient or client to seek a second opinion > > k) consulting and taking advice from colleagues when appropriate

1. making responsible and effective use of the resources available to practitioners (see Section 5.2 Wise use of healthcare resources)

m) ensuring that the personal views of a practitioner do not affect the care of a patient or client adversely

n) practising in accordance with the current and accepted evidence base of the health profession, including clinical outcomes

o) evaluating practice and the decisions and actions in providing good care, and

p) facilitating the quality use of therapeutic products based on the best available evidence and the patient or client's needs.

2.5 Treatment in emergencies

Treating patients or clients in emergencies requires practitioners to consider a range of issues, in addition to the provision of best care. Good practice involves offering assistance in an emergency that takes account of the practitioner's own safety, skills, the availability of other options and the impact on any other patients or clients under the practitioner's care, and continuing to provide that assistance until services are no longer required.

4.4 Teamwork

Many practitioners work closely with a wide range of other practitioners, with benefits for patient care.

Effective collaboration is a fundamental aspect of good practice when working in a team. The care of patients or clients is improved when there is mutual respect and clear communication as well as an understanding of the responsibilities, capacities, constraints and ethical codes of each other's health professions. Working in a team does not alter a practitioner's personal accountability for professional conduct and the care provided. When working in a team, good practice involves:

a) understanding the particular role in the team and attending to the responsibilities associated with that role

b) advocating for a clear delineation of roles and responsibilities, including that there is a recognised team leader or coordinator although care within the team may be provided by different practitioners from different health professions within different models of care

c) communicating effectively with other team members

d) informing patients or clients about the roles of team members

e) acting as a positive role model for team members

f) understanding the nature and consequences of bullying and harassment and seeking to avoid or eliminate such behaviour in the workplace, and

g) supporting students and practitioners receiving supervision and others within the team.

5.1 Introduction

Practitioners have a responsibility to contribute to the effectiveness and efficiency of the healthcare system.

5.2 Wise use of healthcare resources

It is important to use healthcare resources wisely. Good practice involves:

a) ensuring that the services provided are appropriate for the assessed needs of the patient or client and are not excessive, unnecessary or not reasonably required

b) upholding the right of patients or clients to gain access to the necessary level of healthcare, and, whenever possible, helping them to do so

c) supporting the transparent and equitable allocation of healthcare resources, and

d) understanding that the use of resources can affect the access other patients or clients have to healthcare resources.

6.3 Practitioner performance

The welfare of patients or clients may be put at risk if a practitioner is performing poorly. If there is a risk, good practice involves:

a) complying with statutory reporting requirements, including those under the National Law

b) recognising and taking steps to minimise the risks of fatigue, including complying with relevant state and territory occupational health and safety legislation

c) if a practitioner knows or suspects that they have a health condition that could adversely affect judgement or performance, following the guidance in Section 9.2 Practitioner health

d) taking steps to protect patients or clients from being placed at risk of harm posed by a colleague's conduct, practice or ill health

e) taking appropriate steps to assist a colleagueto receive help if there are concerns about the colleague's performance or fitness to practise, and

f) if a practitioner is not sure what to do, seeking advice from an experienced colleague, the employer/s, practitioner health advisory services, professional indemnity insurers, the National Boards or a professional organisation.

1. Although the incident basing the P0 call involved only one person and was confirmed as a fatality on impact, it is clear that the respondent was not aware that this person was a confirmed fatality on impact at the time he refused to attend the incident at 2:52 pm, which he did not attend.
2. Taking into account the respondent's admitted conduct in not attending this incident, the fact that he was unaware it was a fatality at the time he refused to attend, and the fact that he has no relevant notification or disciplinary history, I am satisfied that a reprimand of the respondent is required.
3. As was stated in Easdon at 106:

Any form of official censure is of consequence. A reprimand should not be considered a "slap over the wrist": it puts the public and the relevant profession on notice that the practitioner has failed to meet the standards of the profession and a means by which the Tribunal admonishes the practitioner for their proven conduct.

Pursuant to s 106(2)(a) of the Health Practitioner Regulation National Law the respondent is reprimanded.