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Applied Paramedic
LAW AND ETHICS
A U S T R A L I A A N D NEW ZEALAND
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Applied Paramedic
LAW AND ETHICS
AUSTRALIA AND N E W Z E A L A N D
Ruth Townsend
Morgan Luck
Sydney Edinburgh London New York Philadelphia St Louis Toronto

Churchill Livingstone
is an imprint of Elsevier
Elsevier Australia. ACN 001 002 357

(a division of Reed International Books Australia Pty Ltd)
Tower 1, 475 Victoria Avenue, Chatswood, NSW 2067
This edition © 2013 Elsevier Australia
This publication is copyright. Except as expressly provided in the Copyright Act 1968 and the Copyright
Amendment (Digital Agenda) Act 2000, no part of this publication may be reproduced, stored in any retrieval
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the situation.
This publication has been carefully reviewed and checked to ensure that the content is as accurate and current as
possible at time of publication. We would recommend, however, that the reader verify any procedures, treatments,
drug dosages or legal content described in this book. Neither the author, the contributors, nor the publisher assume
any liability for injury and/or damage to persons or property arising from any error in or omission from this
publication.
National Library of Australia Cataloguing-in-Publication Data
Author: Townsend, Ruth.

Title: Applied paramedic law and ethics ANZ / Ruth Townsend, Michael Eburn, Morgan Luck.
ISBN: 9780729541343 (pbk.)
Subjects: Allied health personnel–Australia.
Allied health personnel–New Zealand.
Allied health personnel–Legal status, laws, etc.–Australia.
Allied health personnel–Legal status, laws, etc.–New Zealand.
Allied health personnel–Professional ethics–Australia.
Allied health personnel–Professional ethics–New Zealand.
Other Authors/Contributors:
Eburn, Michael.
Luck, Morgan.
Dewey Number: 610.737069
Publisher: Melinda McEvoy

Developmental Editor: Amanda Simons
Project Coordinators: Liz Malcolm & Karthikeyan Murthy
Edited by Linda Littlemore
Proofread by Jon Forsyth
Cover and internal design by Lisa Petroff
Index by Robert Swanson
Typeset by Toppan Best-set Premedia Limited
Printed in China by 1010 Printing Int’l Ltd.
Contents
Acknowledgements vi
Foreword vii
Contributors ix
Reviewers xi
1 Why introduce paramedics to law, ethics and professionalism? 1
2 An introduction to ethics for paramedics 8
3 PRECARE – an ethical decision-making model for paramedics 33
4 The ethical governance of paramedic practice 48
5 An introduction to the legal system and paramedic professionalism 67
6 Consent and refusal of treatment 92
7 The tort of negligence, standards of care and vicarious liability 130
8 End-of-life care 157
9 An introduction to child protection and mandatory reporting 186
10 The mental health patient in the pre-hospital emergency care setting 225
11 Employment and industrial law in paramedic practice 250
12 Record keeping and the patient health care record 280
13 The use of drugs in pre-hospital care 299
14 Paramedic practice in New Zealand – legal issues and current debates 312
Glossary 331
Index 335
v
Acknowledgements
I would like to thank my co-editor Morgan whose counsel and wisdom helped make
this project run so smoothly. I would also like to thank all the contributors for their
marvellous efforts in compiling the material for this text and to all those other
paramedic colleagues I have worked with over the years for their passion and com-
mitment to their work. You were the inspiration for this book. Thanks to my parents
for instilling in me a strong sense of social justice and encouraging me into the
noble and rewarding areas of both health care and law. And, finally, I would like to
thank my boys, Andrew, Tom and Will, for their unending love and support. RT
I would like to thank: my co-editor Ruth for the time and energy she put into
this project; my father Malcolm Luck for helping me with many of the cases within
this book (and for impressing upon me, at an early age, the importance of reason);
and, lastly, Daniel Cohen for his work in this area, which partly inspired this
collection. ML
vi
Foreword
Paramedics frequently have to make judgement calls outside the specific framework
of protocols or guidelines. When paramedics make a judgement call they would
like to be guided by ethical principles and supported by law.
The ethical environment is constantly changing and, in a rapidly developing
profession, the rate of change is dramatic. This book should be seen as a starting
point for ethical discussions that, in turn, will drive the evolution of the paramedic
profession. As the paramedic profession rapidly develops it needs to acquire its
own ethical framework, which in turn will be followed by law relating to
paramedic practice.
A long time ago, between 1596 and 1598, Shakespeare wrote The Merchant of
Venice. In this play a forfeit of a pound of flesh was legally awarded to be taken
from the hero. Although this was legally supported it was ethically wrong, and Portia
resolved the conflict with the statement,
This bond doth give thee here no jot of blood;
The words expressly are ‘a pound of flesh’.
She also recommends
Have by some surgeon, Shylock, on your charge,
To stop his wounds, lest he do bleed to death.
412 years ago Shakespeare clearly understood legal and ethical dilemmas as well
as the importance of haemorrhage control! The ability to see clearly through the
complexities of legal and ethical issues without a wise Portia beside you is part of
the package that defines a professional paramedic. We develop judgement in this
area by observing our mentors and discussing issues and cases. This text should be
seen as a catalyst for those discussions and, therefore, the development of both
individuals and the profession.
In considering the legal and ethical framework surrounding paramedic practice
we are creating a yardstick against which to measure our decisions. The measure-
ment of a decision may take place in the heat of the moment, in which case
a pre-considered ethical and legal framework is invaluable. On the other hand,
decisions may also be measured on mature reflection, reviewing a case or situation
with a view to learning and improving practice for the next time.
A yardstick developed by discussion and consideration of ethical and legal issues
is valuable when dealing with questions about individual judgements. There are two
sorts of questioning situations when this is invaluable:
1 Questions for long nights of ethical, legal and clinical debate where
judgements are considered and ethics developed.
vii
Foreword
2 Questions for asking in front of the mirror where personal judgements

are often subjected to the fiercest critic (yourself ).
A text that develops reflection and understanding of ethical and legal judgement
helps to equip the professional paramedic to deal with both types of questions,
a long night’s debate and those difficult moments when we judge the person in
the mirror.
The ability to see clearly and judge well, as demonstrated all those years ago by
Portia, is at least as important as clinical knowledge and skills to today’s practising
professional paramedic.
Hugh Grantham
viii
Contributors
Stephen Bartlett LLB, LLM

Lecturer, Queensland University of Technology, Qld, Australia
Bronwyn Betts ASM, LLM, LLB, BAppSc(Nursing), RN

Senior Educator, Queensland Ambulance Service, Qld, Australia
Associate Lecturer, Griffith University, Qld, Australia
J Joy Cumming BA, BEdSt, Med, PhD, JD, GradDipLegalPractice

Professor and Coordinator, Griffith Social and Behavioural Research College,
Griffith University, Qld, Australia
Kate Diesfeld BS, JD

Associate Dean (Research), Associate Professor, Te Piringa Faculty of Law,
University of Waikato, Hamilton, New Zealand
Peter Jurkovsky LLB(Hons), Grad Cert Higher Education,

DipParaSc(Ambulance)
Senior Lecturer, Bachelor of Emergency Health, Monash University, Vic, Australia
Peter Lang BHlthSc(PreHospCare), BNurs, DipParaSc, MACAP

Intensive Care Paramedic, Ambulance Service of NSW, NSW, Australia
Chairman, Australian College of Ambulance Professionals (NSW)
Morgan Luck BA, BComm, BA(Hons), MA, PGCE, PhD

Associate Head, School of Humanities and Social Science, Charles Sturt
University, NSW, Australia
Member, CAPPE (Centre for Applied Philosophy and Public Ethics)
Ramon Z Shaban RN, EMT-P, CICP, PhD, FRCNA

Senior Research Fellow, Griffith Health Institute Research Centre for Clinical
and Community Practice Innovation, Griffith University, Qld, Australia
Brian Steer BA(Hons), ThA, DipEd, BParamedStudies

Ambulance Paramedic, Ambulance Victoria, Vic, Australia
Brian Stoffell BA(Hons1), LLB(Hons1), PhD

Associate Professor, School of Medicine, Flinders University, SA, Australia
ix
Contributors
Ruth Townsend BN, LLB, LLM, GradDipLegalPrac, GradCertVET, DipParaSc

Convenor, Health Law, Ethics and Human Rights, concurrently in the ANU
College of Law and School of Medicine, Australian National University,
Canberra, ACT
Solicitor of the Supreme Court of NSW
Claire Wyatt-Smith BA, MEd(Research), PhD

Dean Academic (Arts, Education and Law), Griffith University, Qld, Australia
x
Reviewers
Lisa Bowerman MHlthSc(Ed), BHlthSc(Pre-hospital Care)

Senior Lecturer in Paramedic Practice and Course Coordinator (Hobart),
Bachelor of Paramedic Practice, School of Medicine, University of Tasmania,
Tas, Australia
Lucinda Mayor AssDipApSc, AdvDipMICP, GradCertTertEd, BParamedicStud,

Hons Candidate
Lecturer, Biomedical Health Sciences – Paramedic Unit, Victoria University
Casual Ambulance Paramedic, Ambulance Victoria, Vic, Australia
Joe Monk, BSc, MOHS, CPSIA

Pre-hospital Legal and Ethical Course Co-ordinator, Edith Cowan University,
WA, Australia
Kim Walker RN, PhD

Professor of Healthcare Improvement, St Vincent’s Private Hospital, NSW,
Australia
Alan Wilson ICP, DipTeach, DipNurs, GradCert Intensive Care Paramedics,

GradDip Intensive Care Paramedics
Postgraduate and Undergraduate Paramedic Lecturer, Faculty of Health,
Whitireia New Zealand, Porirua, New Zealand
xi
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Chapter 1
Why introduce paramedics to law,
ethics and professionalism?
Ruth Townsend, Morgan Luck
Learning objectives
After reading this chapter, you should:
• Understand why it is necessary for paramedics to learn about the law
and ethics
• Have an introductory understanding of the development of paramedicine as
a profession
• Have an awareness of the broad nature of the topics to be discussed in
this text
• Be informed of how law and ethics are broadly applied in paramedic practice
Definitions
Ethics The study of what it means for something to be morally right or wrong.
Law ‘The system of rules which a particular country or community recognises as
regulating the actions of its members and which it may enforce by the imposition
of penalties.’1
Profession ‘An occupation whose core element is work, based on the mastery of
a complex body of knowledge and skills. It is a vocation in which knowledge of
some department of science or learning, or the practice of an art founded on it, is
used in the service of others. Its members profess a commitment to competence,
integrity, morality, altruism, and the promotion of the public good within their
domain. These commitments form the basis of a social contract between a
profession and society.’2
1
APPLIED PARAMEDIC LAW AND ETHICS
An introductory case
Filthy pig
A paramedic is riding to hospital in the ambulance with a patient who is swearing
and cursing at the paramedic. The patient has a split lip. An eyewitness told you
that the patient sustained the injury after being hit in the head by another person.
The patient has no other signs or symptoms of injury.
The patient keeps aggressively asking the treating paramedic, ‘…are you a
professional or not? Can’t you do something for me?’ The paramedic says, ‘Yes, I
am a professional’. The patient spits blood and it hits the floor of the ambulance.
The paramedic says, ‘You are a bloody filthy pig. You can’t do that’. The situation
escalates and the patient assaults the paramedic.
This chapter will provide you with some context in which to consider and reflect
on this case.
Introduction
Around the turn of the 20th century, Abraham Flexner, the now well-recognised
father of medical education, wrote a series of reports regarding medical education
in universities in response to a ‘revolution in understanding about the scientific
foundations of clinical medicine’.3 Flexner made links between science, tertiary
education and medicine and famously attempted to list the traits of a profession in
his paper on social work and professionalism.4 He identified one of the key traits
of a profession as ‘an increasingly altruistic motivation’. The fostering of this virtue
within individuals of a profession arises from the notion that professionals have
advantages that others do not have. The most obvious of these is knowledge. Having
the advantage of knowledge gives the professional power over others. In order to
promote the role of the doctor and foster trust in the profession that its members
would not abuse this power, and to outline the responsibilities the profession would
take on to mitigate against the potential abuse of its power, medicine relied on the
Hippocratic Oath and its modern variant, the Declaration of Geneva, to demon-
strate and promote the altruistic nature of the profession. The Hippocratic Oath
contains the ethical maxim, ‘do no harm’, and the Declaration of Geneva pro-
nounces that, ‘The health of my patient shall be my first consideration’.5 These
documents go further in outlining the virtues required of a clinician to include
courage (‘I will not use my medical knowledge to violate human rights and civil
liberties, even under threat’) and compassion (‘I will remember that there is art to
medicine as well as science, and that warmth, sympathy, and understanding may
outweigh the surgeon’s knife or the chemist’s drug’).
How does this relate to paramedics? According to research by Williams and
Brown, ‘the paramedic discipline wants to become recognised as a profession’.6 As
discussed above, part of becoming a profession requires an understanding of the
virtues of altruism, empathy, compassion, courage and the keeping of confidences.
2
1 Why introduce paramedics to law, ethics and professionalism?
There is no doubt that health care is a complex system composed of a myriad of

factors that can present themselves to health practitioners as legal, ethical and pro-
fessional dilemmas. In attempting to best deal with these, paramedics should have
the benefit of some knowledge that will allow them to better navigate those situa-
tions. It is understood that we live in a society that is strongly regulated both morally
and legally. Those practicing in health care delivery are subject to those regulations
and required to comply with them. It is necessary, therefore, for a paramedic to
have an understanding of what those rules and regulations are and how they apply
to his or her practice.
The purpose of applying these rules and regulations, both legal and moral, is not
only to ensure compliance for the benefit of the paramedic or the employer. That
is essentially a very concrete view. A more sophisticated justification for the teaching
of law and ethics comes when we consider the motivation behind our purpose in
working as paramedics in the first place. It is largely a virtuous act. Paramedics
demonstrate the virtues of compassion, altruism, self-development, interdisciplinary
teamwork and integrity on a daily basis. It is these traits that have led to paramedics
being considered the most ‘trusted profession’ and on which their ‘moral contract’
with the public is based.
Paternalistic ideas of ‘autonomy’ and ‘self-regulation’ are inconsistent with this
view and no longer form part of the regulatory discourse within the Australian and
New Zealand health care systems. Instead, the focus of both legal and ethical teach-
ings of other health-related disciplines, and indeed of the governance of the health
care system itself, is the placement of the patient at the centre of care. Indeed, Singer
argues that the goal of medical ethics is ‘to improve the quality of patient care by
identifying, analysing, and attempting to resolve the ethical problems that arise in
the practice of clinical medicine’.7
It is in some ways fortunate that the move to professionalise paramedicine has
come after professionalisation of medicine and nursing because, although each
profession by definition has its own unique body of knowledge, in the broad
schema of health care delivery there are many elements that cross demarcation
lines and are common to many health care disciplines. An acknowledgement of
such allows for an adaptation of the work already done by those groups and a
limited amount of time spent reinventing the wheel. For example, an adaptation of
the British General Medical Council views on the teaching of medical ethics and
law when applied to paramedics may say that ethics and law should be integrated
into the overall objective of paramedic education with the outcome being that
good paramedics will ‘enhance and promote the health and welfare of the people
they serve in ways which fairly and justly respect their dignity, autonomy and
rights’.8 The Council outlines ways in which these goals may be achieved, includ-
ing through:
• ensuring that students understand the ethical principles and values which
underpin the practice of good medicine;
• enabling students to think critically about ethical issues in medicine,
to reflect upon their own beliefs about ethics, to understand and appreciate
alternative and sometimes competing approaches and to be able to argue and
counter argue in order to contribute to informed discussion and debate;
3
• ensuring that students know the main professional obligations of doctors in

the United Kingdom as endorsed by the institutions which regulate or influ-
ence medical practice;
• giving students a knowledge and understanding of the legal process and the
legal obligations of medical practitioners sufficient to enable them to practise
medicine effectively and with minimal risk;
• enabling students not only to enjoy the intellectual satisfaction of debates
within medical ethics and law but also to appreciate that ethical and legal
reasoning and critical reflection are natural and integral components in their
clinical decision making and practice;
• enabling students to understand that ethical and legal issues arise not only in
extraordinary situations in medicine but also occur in everyday practice.9
Pellegrino argues that the necessity for teaching clinical ethics exists because
health practitioners not only apply clinical science to solve a clinical problem but
will be confronted by, and therefore will be required to solve, ethical problems
that will necessitate a reliance upon an equally technical process of deliberation to
arrive at a morally and legally defensible position.10 This rationale would arguably
apply equally to the teaching of law.
In this book, you will be exposed to the theories and principles used by other
healthcare professionals not only to recognise and deal with legal and ethical prob-
lems encountered in the field but to ‘communicate and justify these decisions to
others in a consistent manner.’11 The professional health practitioner should under-
stand that acting ethically does not just mean helping people or following the law.
To be a professional requires a practitioner to not dismiss difficult decision making
by relativising the situation and applying a ‘well, as long as you’re happy then
everything is OK’ approach.12 Being a professional requires the practitioner to be
able to identify an ethical problem, gather the facts to contextualise the problem,
refer to a code of conduct that has been accepted by other paramedic practitioners
as being representative of the normative values of the profession, understand and
appreciate the need to be able to consider an alternative course of action, know
and consider the relevant legal regulations, evaluate the situation and then make
and justify a decision that will benefit the patient or at least do the patient no
harm.11 Further to this, an understanding of the purpose of the law and how and
when it applies to paramedic practice is a necessary tool in the health professional’s
armoury, not only spelling out the practitioner’s responsibilities but establishing
boundaries and expectations that provide safety and support for patients, their
families and practitioners. The acquisition of these skills reflects those identified by
Flexner as traits common to a profession – namely, intellectual operation as coupled
with substantial individual responsibilities, raw materials drawn from science and
learning, and a practical application of that knowledge.4
The approach taken in teaching paramedics about ethics is a mixed one, but in
this text it is largely via the use of real and hypothetical cases and a discussion of
key concepts and constructed narratives. These methods are used to demonstrate,
for example, how knowledge of a relevant code of conduct may help paramedics to
first conceive of and then develop the tools to act effectively in ethically and legally
4
challenging situations.13 Knowledge of both ethics and law provides paramedics

with an insight into two intersecting normative value systems. Although laws are
not universalisable, they nevertheless make up an essential component of a profes-
sional’s knowledge that enables that actor to make more informed and more sub-
stantively justifiable decisions. For example, understanding the legal and ethical
concepts of consent allows paramedics to involve patients in their own health care
decision making. By empowering patients with the knowledge of the professional,
the patient and others gain a number of benefits, including being better able to:
• engage with the process of healthcare decision making on this occasion
and in the future
• manage their own health
• act as a conduit to the community to assist in the dissemination of
healthcare information to others
• act as an additional ‘safety net’ for their own and the practitioner’s
protection against adverse events.14
In this way the practitioner is acting ethically and promoting the autonomy of
the patient, acting to benefit the patient both in the short term and long term,
limiting the risk of harm to the patient and providing an avenue of justice in that
offering the patient the opportunity to be involved in their health care presents
them with an opportunity to be involved in decisions regarding, for example, the
allocation of health care resources.
There are challenges with involving patients in health care decision making in
the emergency care setting. It would, however, be inadvisable for paramedics
seeking to be recognised as professionals to disregard the development of these skills
on that basis. Attempts by paramedics to involve patients (or their surrogate deci-
sion makers) in health care decision making are not only fundamental to applying
an ethical standard of practice but equally essential to applying a legal standard
of care.
In the challenging areas of end-of-life decision making and mental health care,
the paramedic must be able to identify moral and legal dilemmas that will inevi-
tably arise, and be equipped with the knowledge and skills to deal most effectively
with them in order to promote the best care for the patient. Having an under-
standing of these issues also empowers the paramedic to contribute to local,
national and international discussions on these universally difficult and conten-
tious issues. These are issues that account for an increasing proportion of the
paramedic workload15 and, as such, it should be a legitimate expectation that
professional paramedics would make a significant contribution to such policy
debates in the future. The ultimate purpose of this decision making is to maintain
patient safety by either making ‘care’ decisions that impact directly on the patient
or making broader, more indirect decisions that ultimately shape policy and regu-
lations that work towards delivering that same end. This latter point is supported
by Pelligrino, who argues that professional values can play an important role in
‘shaping public policy in the legislature, before the judiciary and in the court of
public opinion’.16
5
Conclusion
If paramedicine wishes to be considered as a profession, it is necessary for paramed-
ics to develop broad professional leadership skills, which include taking part in
research to advance knowledge, the ability to effectively convey information to a
range of audiences and productively participating in debates and advocacy on pro-
fessional and general health issues of national and international importance. A solid
grounding in law and ethics provides the paramedic with tools and knowledge
to present good arguments in those powerful forums – arguments that could
reshape the Australian healthcare landscape and assist in the improvement of future
patient services.
Review questions
1 What is one of the traits Flexner identified as being necessary to have in
order to be considered a profession?
2 What is a virtue? What virtues do you have? Why are they important?
3 What does it mean to you to be a ‘professional’? Does this concord with the
definition of a profession?
4 Why is it important to involve patients in health care decision making? Can
you think of other benefits not listed here?
5 How do law and ethics intersect with the notion of being a professional?
Endnotes
1 Simpson, J (ed) (2012) Oxford English Dictionary. Oxford: Oxford University Press.
Online. Available: http://oxforddictionaries.com/definition/law (accessed 17 May
2012).
2 Cruess, SR, Johnston, S and Cruess, RL (2004) Profession: a working definition for
medical educators. Teaching and Learning in Medicine 16(1), pp. 74–76. Cruess, SR,
Johnston, S and Cruess, RL (2002) Professionalism for medicine: opportunities and
obligations. Medical Journal of Australia 177, pp. 208–211.
3 Faunce, T and Gatenby, P (2005) Flexner’s ethical oversight reprised? Contemporary
medical education and the health impacts of corporate globalisation. Medical
Education 39(10), pp. 1066–1074.
4 Flexner, A (1915) Is social work a profession? School and Society 1, p. 904.
5 General Assembly of the World Medical Association, Declaration of Geneva. Online.
Available: http://ama.com.au/node/2474 (accessed 1 February 2012).
6 Williams, B, Onsman, A and Brown, T (2010) Is the Australian paramedic discipline
a full profession? Journal of Emergency Primary Health Care 8(1), p. 2.
7 Singer, P (2000) Medical ethics. British Medical Journal 321(7256), pp. 282–285.
8 Doyal, L and Gillon, R (1998) Medical ethics and law as a core subject in medical
education. British Medical Journal 316, p. 1623.
9 Consensus Group of Teachers of Medical Ethics and Law in UK Medical Schools
(1998) Teaching medical ethics and law within medical education: a model for the
UK core curriculum. Journal of Medical Ethics 24, pp. 188–192.
6
10 Pellegrino, ED (1989) Teaching medical ethics: some persistent questions and some
responses. Academic Medicine 64, pp. 701–703.
11 Luck, M (2012) An introduction to ethics for paramedics. In: Townsend, R and
Luck, M (eds) Applied Paramedic Law and Ethics. Sydney: Elsevier, p. 9.
12 Olick, RS (2001) It’s ethical, but is it legal? Teaching ethics and law in the medical
school curriculum. Anatomical Record 265(1), pp. 5–9.
13 Stofell, B (2012) The ethical governance of paramedic practice. In: Townsend, R and
Luck, M (eds) Applied Paramedic Law and Ethics. Sydney: Elsevier, p. 48.
14 This final point is particularly relevant to the area of medication administration.
See Leape, L et al (1995) Systems analysis of adverse drug events. Journal of the
American Medical Association 274(1), pp. 35–43.
15 Roberts, L and Henderson, J (2009) Paramedic perceptions of their role, education,
training and working relationships when attending cases of mental illness. Journal of
Emergency Primary Health Care 7(3), pp. 1–16.
16 Pellegrino, ED (1989) Teaching medical ethics: some persistent questions and some
responses. Academic Medicine 64, pp. 701–703.
7
Chapter 2
An introduction to ethics for paramedics
Morgan Luck
Learning objectives
After reading this chapter, you should be able to:
• Dispel some common misunderstandings regarding ethics
• Give an account of three major ethical theories
• Offer some objections to each of the major ethical theories
• Give an account of the four principles of bioethics
• Apply the four principles of bioethics to an ethical case
Definitions
Ethicists (those philosophers who study ethics) commonly justify ethical
judgements and decisions by referring to an underlying ethical theory – that is, a
theory about what makes something ethical. In this chapter the three major ethical
theories will be outlined. In very basic terms, these theories are as follows:
Consequentialist ethics The view that holds that an action is ethical if, as a
consequence of the action, the maximum overall amount of happiness results.
Deontological ethics The view that holds that an action is ethical if it is guided by a
set of universal moral rules.
Virtue ethics The view that holds that an action is ethical if it is motivated by virtue.
A method of determining the ethical course of action will also be outlined that is
widely used within the healthcare profession today – a method known as the ‘four
principles of bioethics’.
The four principles of bioethics The view that holds that an action is ethical if it is
the action that best upholds the principles of autonomy, non-maleficence,
beneficence and justice.
8
2 An introduction to ethics for paramedics
Multiple patient overdose
A paramedic is called to the scene of a New Year’s Eve party where a multiple
patient overdose is suspected to have taken place. Upon arriving at the scene the
paramedic discovers four people unconscious and suffering respiratory depression
(indicating a potentially life-threatening overdose). The paramedic is told that they
collapsed after trying a new party drug, which is quickly determined to be an
opiate. Because it is New Year’s Eve, emergency services are stretched and
back-up may not arrive in time.
The paramedic might normally administer the drug naloxone in these
circumstances. Typically, a paramedic would only carry two doses of naloxone.
One full dose would be needed to properly treat one person suffering from a
narcotic overdose. Half a dose may have a beneficial effect on a single patient,
but may not be enough to successfully counter the respiratory depression.
This chapter will introduce you to some of the tools used, not simply to make
ethical judgements about what a paramedic should do in cases such as this one,
but to communicate and justify these decisions to others in a consistent manner.
Introduction
It is common to hear people say things such as, ‘Rob is a good person’, ‘Abortion
is wrong’ or ‘The decision to fire the foreman was immoral’. It is also common to
hear people justify such judgements by offering reasons. For example, someone
might say, ‘Rob is a good person because he does lots of voluntary work’, ‘Abortion
is wrong because it is the same as murder’ or ‘The decision to fire the foreman was
immoral because he did nothing wrong’. In each case a justification for an ethical
judgement is being offered. The aim of this chapter is to introduce some of the
main tools used, not simply to make ethical judgements, but to communicate and
justify these decisions to others in a consistent manner.
It is also worth noting that the Paramedic Professional Competency Standards
(version 2) clearly states that paramedics must practice ‘within the legal and ethical
boundaries of their profession’.1 This chapter hopes to provide an introduction to
ethics which, when coupled with the discussion in Chapter 4 on professional
responsibilities and ethical codes of conduct, should help paramedics make out these
ethical boundaries and operate as professionals in their field.
However, before we proceed it is useful to consider the notion of an ethical
decision more broadly.
What is ethics? And what isn’t it?

Ethics is the study of what it means for something to be morally right or wrong.
In other words, it is the study of what you ‘ought’ to do. Here we do not mean
what you legally ought do to, but what you should do in order to be a good person.
9
This may seem like a perfectly straightforward area of enquiry; however, it gives rise
to a number of misunderstandings. In this section we will address the following
common misunderstandings:
• Acting ethically just means helping people.
• Acting ethically just means following the law.
• Acting ethically is only something to worry about in difficult cases.
• Acting ethically is about avoiding moral dilemmas.
• Acting ethically is relative.
In each case we shall examine the misunderstanding and work to resolve the error.
Misunderstanding: ‘Acting ethically just means helping people’

Some people might think that, as long as they are helping other people, they are
acting ethically. However, such a simplistic view does not bear up under close scru-
tiny. To demonstrate this, consider Case 2.1.
Here we can see that, although the paramedic performed an action that helped
the patient, we would not want to say she acted ethically. In fact it seems likely that
she acted unethically, as she potentially endangered the patient’s life simply because
she did not want to endure the embarrassment of asking about the possible use of
an erectile dysfunction drug.
This example demonstrates that, in some situations, our intuitions about what
constitutes an ethical decision are more closely linked with people’s motivations or
reasons for performing the actions they do, rather than the actions themselves. In
other words, to act ethically as a paramedic, it is not enough to incidentally help
the patient; you must also act with the patient’s best interests at heart. Studying
ethics helps to further an awareness of your own reasons for action, or motivations.
Case 2.1
The embarrassed paramedic
A paramedic arrives on scene to find a 50-year-old male patient having severe
chest pains. The paramedic determines that a glyceryl trinitrate (GTN) spray should
be used that will lower the patient’s blood pressure and reduce the strain on
the heart.
However, before administering this drug, the paramedic realises that she should
ask the patient if he has taken any erectile dysfunction drugs (such as Viagra) in
the previous 24 hours for, if he had, the GTN spray may drop his blood pressure to
a dangerously low level.
The paramedic decides not to enquire, as she is embarrassed to ask. By chance,
it turns out the patient had not taken erectile dysfunction drugs, so the
administration of the GTN spray did, indeed, help the patient recover from
the chest pains.
10
Such awareness should in turn assist you to determine whether you are acting with
the patient’s best interests at heart.
Misunderstanding: ‘Acting ethically just means following the law’

Some people fall into the trap of thinking that, as long as they do not break the
law, their actions will be ethical. As Kenneth De Ville points out:
When ethical issues arise in emergency medicine, they frequently entail legal issues.
The commonest and often the first question asked by physicians in an ethical
dilemma is: ‘What does the law say?’ If that question is answered (and it cannot
always be), they are many times content to end the analysis there. Adhering to the
law does not guarantee a morally correct outcome, however.2
To illustrate this point, consider Case 2.2 provided by Derse.3

Although Derse reports that it was lawful for the emergency staff not to retrieve
the patient, it is less clear whether such an action was ethical. We can often be sure
of the legality of an action, while being unsure of its ethical status (and vice versa),
and this points to the fact that the two notions can be distinct. In other words,
what is ethical might not be legal and what is legal may not be ethical.
Case 2.2
The death of Christopher Sercye
On May 16, 1998, an event occurred that outraged many and presented an emergency
department’s physicians and nurses with an ethical and legal dilemma. Christopher
Sercye, a 15-year-old boy, was shot and wounded. His friends carried him to within 50
feet of Chicago’s Ravenswood Hospital, put him down, and left. Hospital staff saw
Christopher lying there but did not go out to help him because hospital policy did not
allow staff to leave the hospital premises to render emergency care. Should the doctors
and nurses have violated hospital policy and left the patients for whom they were caring
to assist this injured boy?
The policy was crafted to prevent hospital liability for actions taken by staff off the
premises, as well as to circumscribe the duties of the hospital’s personnel. The policy
was also designed to protect personnel from injury. Violation of hospital policy was
grounds for reprimand or dismissal. Ravenswood was not a Level 1 trauma center, so
that if its doctors and nurses intervened before paramedics arrived, they might have
delayed the process of getting the patient to an appropriate level of care. It was also
possible that the victim’s assailants would return and put staff at risk. After a frustrated
police officer finally commandeered a wheelchair and brought the boy in by himself, it
was too late. The boy died of a gunshot wound to the aorta. In retrospect, immediate
action might have saved his life.
Although public outrage was considerable, the hospital personnel had done nothing
illegal. They violated no laws by waiting until the patient was brought to the emergency
department (ED).3
11
Of course, what is legal and what is ethical often overlap, and indeed this is no
coincidence – for the two domains are closely linked. For example, the principle of
justice motivates both legal reform and many of our own ethical intuitions. In
addition, since it is often difficult to determine the correct ethical course of action
(especially in emergencies), it is entirely prudent to defer to the law in many cases.
However, as De Ville quite rightly states:
Medical professionals must recognize the limited goals and insights of the law and
legal thought. As a rule, legal standards are unreliable guides to ethical conduct and
should never be allowed to substitute for, or dominate, ethical analysis.2
In addition, a paramedic who over-relies on the law runs the risk of developing
what Megan-Jane Johnstone refers to as moral blindness, as ‘someone who, upon
encountering a moral problem, simply does not see it as a moral problem. Instead,
they may perceive it as either a clinical or a technical problem’.4 The danger here is
that a paramedic whose actions are primarily being guided by legal, technical or
clinical concerns may gradually become insensitive to ethical considerations.
What is more, even if someone believed that by following the letter of the
law their actions were guaranteed to be ethical, they would still have to have an
independent sense of what is ethical before they could know this to be true.
To sum up, although law is an invaluable means of determining the correct
course of action, this should not be to the exclusion of ethical considerations.
As professionals, paramedics are obliged to develop both their legal and ethical
compasses and apply them together to the situations they encounter.
Misunderstanding: ‘Acting ethically is only something to worry about

in difficult cases’
Some people make the mistake of thinking that ethical considerations only
come into play when they are faced with a difficult decision. For example, consider
Case 2.3.
In this case ethical questions seem to abound, such as ‘Is it ethical to let someone
die if it is in your power to save them?’ and ‘Is it ethical to save someone if
they wish to be left to die?’ Yet, ethical considerations do not just come into play
when decision making becomes hard. For example, consider a much easier case
(Case 2.4).
Case 2.3
DNR tattoo
A paramedic is called to the scene of a suspected heart attack. Upon arriving at
the scene it is determined that the patient, an 88-year-old man, is unconscious
and not breathing.
While preparing to resuscitate the patient, the paramedic discovers the words ‘Do
not resuscitate’ tattooed on the patient’s chest.
12
Case 2.4
Burger stop
A paramedic is called to the scene of a car crash. However, she is a little hungry
and there is a fast food restaurant en route to the crash where she can stop to get
a burger.
Case 2.5
Jehovah’s Witness car crash
An intensive care paramedic arrives on the scene of a car crash to find a patient
conscious but severely haemorrhaging. After slowing the bleeding and providing
the patient with a saline solution, the patient’s blood pressure continues to drop,
and they become unconscious. The paramedic is worried that the patient may die
before reaching the hospital.
One promising course of action open to the paramedic is to administer packed red
blood cells, which should help stabilise the patient.
However, the patient informed the paramedic before falling unconscious that she
was a Jehovah’s Witness and did not want to be given a blood transfusion.
It may seem obvious that the paramedic should not stop for a burger. But this
is not simply because it is the paramedic’s job to respond as quickly as possible to
an emergency. It is also because stopping for this reason, while lives are at risk,
would be unethical.
In short, ethical considerations do not pop up only when hard decisions need to
be made. Rather, they are ever present. In order to cultivate a consistent professional
attitude, you should not choose to think ethically in particular situations, but instead
consider the ethical in all instances of professional decision making.
Misunderstanding: ‘Acting ethically is about avoiding moral dilemmas’

In this instance the misunderstanding is less about what constitutes ethical thinking
and more about how best to develop a stronger ethical foundation. Throughout this
book a variety of ethical cases will be introduced, some of which will appear to
entail dilemmas. It can be said that a case involves a dilemma if, in responding to
the case, you are faced with making a choice between equally unfavourable options.
For example, consider Case 2.5.
This case may entail a dilemma, as the paramedic is forced to choose between
letting the patient die of blood loss or disregarding her religious beliefs. When faced
with such a dilemma, there are three ways a paramedic might generally respond:
13
they might ignore the dilemma, avoid it or resolve it. Let us examine all three
responses.
A paramedic ignores a dilemma by not taking the ethical aspects of the case seri-
ously, or even by being completely blind to them. Such a paramedic would respond
to dilemmas in a mechanical and unconsidered manner, typically by only consider-
ing the law. This type of response is not consistent with best practice, as paramedics
should not be solely guided by legal, technical or clinical concerns, but also by the
ethical issues at play. A case in point here is the Nuremberg defence, a defence
famously used by Nazi war criminals during the Nuremberg Trials: ‘I was only fol-
lowing orders’. Although this is a rather extreme example, history has taught us that
we should never turn off our own moral compass and just mechanically do what
we are told. However, although it is bad to ignore dilemmas in this fashion, it is
perfectly acceptable to attempt to avoid them.
A dilemma is avoided when you attempt to find a way out of the situation
without taking either of the hard options. For example, when considering the ethical
course of action in Case 2.5 (the Jehovah’s Witness car crash case), you might think
to yourself, ‘I would use a non-human blood substitute to treat the patient, as this
substitute is approved by their religion’. This course of action, if available, avoids
the dilemma as it allows the paramedic to both save the patient and respect her
religious commitments. This type of avoidance is good, and is obviously preferable
when you are in the field. However, while it is good to avoid dilemmas in this way,
you will not be able to do so in all cases. It is therefore important that paramedics
also consider how to resolve, rather than avoid, ethical dilemmas.
A paramedic resolves a dilemma when they consider the ethical problems and
legal issues involved in the case and, after due consideration, chooses one of the
hard options posed by the dilemma. Often these ethical problems are best
highlighted by questions, which in the case of the Jehovah’s Witness car crash case
might be:
• Do patients have the right to refuse treatment?
• Is it ever ethical to let someone die when you are able to save them?
Identifying and thinking about these central ethical problems should help you
to form justifiable reasons for action. (Chapter 3 will involve picking out such
ethical problems from case studies.) It is by taking a stance on these issues and
acting in line with your convictions that you will resolve the dilemma. For example,
if after due consideration the paramedic decided that the Jehovah’s Witness does
have the right to refuse treatment, and as a result does not administer the packed
red blood cells, this would be an example of a paramedic attempting to resolve
the dilemma.
When studying ethics you should resist the temptation to always avoid dilemmas
rather than resolve them. Although avoiding a dilemma is desirable in the field,
you will learn little about difficult ethical cases, and how to resolve them, if you are
constantly thinking of ways to avoid them. While studying ethics it this therefore
better, even if you know of an ingenious way to avoid the dilemma (which is prefer-
able in practice), to embrace the underlying problem that each case is designed
to highlight.
14
In short, even though it is best to avoid dilemmas when you can in practice, in
many cases this will not be possible, and in such cases acting ethically will require
you to take a stand on quite hard issues. In order to strengthen your ability to do
this, you should take the opportunity to resolve, rather than avoid, the ethical
dilemmas presented in this book.
Misunderstanding: ‘Acting ethically is relative’

It is common to hear people say, ‘Beauty is in the eye of the beholder’. The thought
being expressed here is that it is legitimate for two people to look at the same thing,
such as a painting, and one of them think it is beautiful and the other think it is
not. Some people think ethics is like beauty in this respect. In other words, whether
or not an action is ethical depends on who you ask – it is relative to individuals.
This position is known as individual relativism or subjectivism. A related position
is cultural relativism, where ethical standards are taken to be relative to cultures
rather than individuals. Both individual and cultural relativism are types of ethical
relativism. Ethical relativists, as Shafer-Landau explains, believe that something is
ethical simply
… because a person, or a society, is deeply committed to it. That means that the
standards that are appropriate for some people may not be appropriate for others.
There are no objective, universal moral principles that form an eternal blueprint to
guide us through life. Morality is a ‘human construct’ – we make it up, and like the
law, or like standards of taste, there is no uniquely correct set of rules to follow.5
To help illustrate ethical relativism, consider Case 2.6.

Most paramedics in our culture would be inclined to believe female genital
mutilation is unethical. However, if they were a cultural relativist they would
have to concede that this procedure is ethical relative to a culture where it is
permitted.
Case 2.6
The tribal procedure
A paramedic decides to volunteer her services to an overseas aid program,
transporting patients from various remote African communities to a medical
centre.
One day the paramedic is asked to transport a young girl to the centre to undergo
an operation resulting in female genital mutilation. The girl herself tells the
paramedic she doesn’t want to undergo the procedure.
Shocked by this request the paramedic radios the centre en route to find out more
about the procedure. She discovers that the procedure is not illegal here, that it is
one of the culture’s oldest traditions, and that in this culture the daughter has no
say in whether or not the procedure should be carried out.
15
Some people find ethical relativism attractive because it seems quite a tolerant
position to take. For example, rather than saying, ‘Abortion is wrong and that’s that’,
relativists would be more inclined to say, ‘Although abortion is unethical relative to
my culture, I appreciate that it is ethical relative to yours’. However, being tolerant
in this manner has its drawbacks. For example, the relativist will be committed to
saying, ‘Although the attempted genocide of the Jews by the Nazis was unethical
relative to the Jews, it was ethical relative to the Nazis’. Note the relativist is not
simply pointing out that the Nazi’s believed their actions were ethical, but rather
that the Holocaust was ethical relative to the Nazis. In other words, there is a very
real sense in which the Holocaust was actually ethical. To many people this conclu-
sion would be quite unacceptable.
It may seem to follow from ethical relativism that it is wrong for one group to
impose their ethical standards on another. And, again, this seems like quite a toler-
ant position to take in a multicultural society. However, if this is the case, ethical
relativists cannot attempt to stop one group from imposing their ethical standards
on another. This is because, if they did, they would be imposing their own ethical
standards onto another group. This type of tolerance therefore is, in this limited
respect, impotent. For example, I may think it is wrong for religious groups to
indoctrinate children because no person should impose their beliefs on another.
However, if I step in and stop this from happening, I am imposing my belief that
indoctrination is wrong on this religious group.
Many people are drawn to ethical relativism because of the realisation that
different cultures and individuals do in fact have different ethical standards. This
understanding has led some to mount the following argument, as captured by
Rachels and Rachels:
1 Different cultures have different moral codes.
2 Therefore, there is no objective ‘truth’ in morality. Right and wrong are
only matters of opinion, and opinions vary from culture to culture.6
Putting aside the fact that there are also considerable similarities between the
ethical standards of different cultures, it does not follow from there being disagree-
ment about what is ethical, that there is no fact of the matter. For example, if during
a primary school maths quiz one student claims 5 + 3 = 8, and another claims 5 +
3 = 9, this should not lead us to conclude that there is no fact of the matter.
Some relativists may disagree with this analogy, for in the maths quiz example
there is a maths teacher who is acknowledged as an authority. Ethics, the relativist
may argue, is not like this – there is no agreement on who has the final say. This
point is often underlined by posing the question, ‘Who are you to say what is right
or wrong?’ However, even if there is no single person or method that can definitely
tell us what is, or is not, ethical, should we really conclude that there is no fact of
the matter? For example, there is presently no authority figure that can tell me
exactly where my cat went last night. But should I really conclude there is no fact
of the matter? Surely not.
Some may worry that the rejection of ethical relativism, and the adoption of
ethical objectivism, will permit people to be intolerant of different ethical beliefs.
In response to this, note first of all that sometimes intolerance is appropriate: if I
16
am in a position to stop a rape, then I should do so, even if the attempted rapist
thinks that there is nothing wrong with what he is doing. Setting aside cases like
this, it may still be of concern that ethical objectivism might permit an inappropriate
intolerance of different ethical beliefs. But this need not be the case. Here are a few
reasons why.
First, just because someone believes in an objective ethical standard, this does
not mean they know what the standard is. There may still be good reason to be
humble and remain open to alternative ideas and approaches, for such alternatives
may turn out to be objectively correct. For example, if I believe abortion is wrong
but I do not know that it is wrong, then that is good reason for me to tolerate
people who believe otherwise.
Second, even if we know we are right, it may be that we are ethically required
to be tolerant of people with different beliefs. If so, then we are not permitted to
be intolerant (even if we know we are right). For example, even if we know it is
wrong to shout at our own children, it may still be wrong to interfere with parents
who choose to do so.
Lastly, there is nothing stopping ethical relativism from also permitting intoler-
ance. For a relativist might say, ‘I know that being tolerant is ethical relative to your
culture, but relative to my culture it is ethical to be intolerant’. And, indeed, there
are examples of this. Consider the following quote by the founder of the Italian
National Fascist Party, Benito Mussolini:
Everything I have said and done in these last years is relativism, by intuition. From
the fact that all ideologies are of equal value, that all ideologies are mere fictions, the
modern relativist infers that everybody has the right to create for himself his own
ideology, and to attempt to enforce it with all the energy of which he is capable. If
relativism signifies contempt for fixed categories, and men who claim to be the
bearers of an objective immortal truth, then there is nothing more relativistic
than fascism.7
In short, a paramedic who rejects ethical relativism is no more in danger of

becoming intolerant of other ethical beliefs than a paramedic who does not.
So, you should not conclude that there is no objective ethical standard from
either (a) the fact that there is disagreement about what is ethical or (b) the fact
that there is no single ethical authority. This does not mean that there is no good
argument for relativism – just that these two arguments are not among them. In
addition, ethical relativists seem committed to claiming that atrocities such as the
Holocaust are actually ethical, in a particular sense. Now it may turn out that this
is right, but it would be very surprising. So, in the absence of better arguments
for ethical relativism, we should be wary of it. And lastly, just because someone
rejects ethical relativism does not mean they are permitted to be intolerant of
different ethical beliefs.
The three main ethical theories

Now that we have considered some misunderstandings about ethical decision
making, let us turn our attention to the different ethical theories by which such
decisions are often justified. An ethical theory, broadly speaking, is any systematic
17
attempt to classify actions as either morally right or wrong, in an objective sense.

That is, it is a theory about what makes something ethical.
The three most influential ethical theories are consequentialist ethics, deontologi-
cal ethics and virtue ethics. In this section we shall provide a brief introduction
to each of these ethical theories, and look at some objections often levelled against
each of them.
Consequentialist ethics
Consequentialists believe that you should always try to perform the action that is
likely to lead to the best possible consequences. The emphasis here is on the con-
sequences of the action, rather than the action itself.
To illustrate this theory consider the multiple patient overdose in Case 2.7.
A paramedic influenced by consequentialist ethics might choose to administer a
full dose to just two patients, rather than four half doses to all four patients, if she
felt that the half doses would probably not be enough to save anyone’s life. This is
because, all things being equal, the high likelihood of saving two lives might seem
to be a better outcome than probably not saving anyone’s life.
This view may seem almost too obvious to be a useful theory. You may wonder
how it could be possible for an action to be ethical if it did not result in the best
consequences. However, this theory is not at all as self-evident as it first seems. This
is because without defining what the ‘best’ is, it can be quite difficult to determine
what is ethical.
Some people believe that the best outcome is the outcome that produces the most
happiness. This view is known as hedonism. According to hedonism, in order to
make an ethical choice you must determine which option will cause the most
Case 2.7
opiate. Because it is New Year’s Eve emergency services are stretched and
18
happiness. For example, in the case of the multiple patient overdose, probably saving
two lives (rather than probably not saving anyone’s life) seems like the better option
because, all things being equal, the more lives saved the happier people will be. This
is the type of justification a consequentialist would offer for this decision.
For the sake of simplicity, whenever we discuss consequentialist ethics, we will
understand this theory to be as follows:
Consequentialist ethics The view that holds that an action is ethical if,
as a consequence of the action, the maximum overall amount of
happiness results.
Note that consequentialist ethics is sometimes also referred to as utilitarianism
or teleological ethics.
Despite this theory often delivering intuitively correct results, there are objections
to its wholesale adoption.
Objection: Does consequentialist ethics demand too much from us?

On first glance the idea that an ethical action is an action that causes the most
happiness might seem uncontroversial – however, it is in fact deeply radical. To
understand why, consider Case 2.8.
Commonsense morality (what most people intuitively consider to be moral) says
that giving money to charity is admirable – that it is the kind of thing that good
people do. However, commonsense morality does not say that giving to charity is
morally obligatory. Yet consequentialist ethics does suggest that we act unethically
every time we do not donate our lunch money. This is because saving lives usually
causes more happiness than having lunch. So our ethical obligations, according to
consequentialist ethics, are far more demanding than we normally take them to be.
Consequentialist ethics not only demands that we give up our money, but it also
demands we be impartial in our efforts to maximise happiness, in a manner not
usually expected of us (see Case 2.9).
Commonsense morality says that we have special obligations to our friends and
family. Therefore, it might suggest that we would not act wrongly in saving our
own child, even when we could have saved two strangers. Again, consequentialist
Case 2.8
Medical treatments in Ethiopia
In the hospital cafeteria there is a donation box for a charity organisation that
helps to pay for medical treatments for children in Ethiopia.
Every day a paramedic brings $5 to work to pay for lunch. It is true that if the
paramedic went without lunch every day he would be very hungry by dinner time.
However, it is also true that if the paramedic gave $5 to this charity every day, the
money would help to save lives.
19
Case 2.9
The blood relative
A paramedic arrives on the scene of a road accident. A truck has hit a school bus
and three children are in a critical condition.
All three children, if they are left untreated, only have around 20 minutes to live.
The first child can be stabilised in about 10 minutes. So too can the second child.
However, the third child will take 15 minutes to stabilise.
To the paramedic’s horror she also discovers that the third child is her own.
Case 2.10
The sporting celebrity
A paramedic arrives at the scene of a car crash, where she finds three patients in
a critical condition and in equal need of immediate attention.
The paramedic recognises that one of the patients is a popular sporting celebrity.
The two other patients are an unknown man and an unknown 10-year-old child.
The paramedic is unable to stabilise more than one person and back-up is too far
away to be of help.
ethics disagrees. Given that we would produce an outcome that is twice as happy,
all things being equal, by saving two children rather than one, consequentialist
ethics implies that we are obligated to save two. If we save one child (even if it is
our own), we act wrongly.
Objection: Should we always try to maximise happiness?

In some situations maximising happiness does not seem quite fair. To illustrate this
point consider Case 2.10.
In this case there is a very strong possibility that thousands of people will
become unhappy if the sporting celebrity were to die. The same cannot be definitely
said of the unknown man and the 10-year-old child. Therefore, in this case conse-
quentialism would suggest we save the celebrity, for by doing so we maximise
happiness.
Choosing to save the celebrity’s life in this case, just because she is popular, may
for many people seem unfair. The thought is that popularity should not be playing
such a major role in determining who lives and who dies. Yet, under consequentialist
ethics this is what seems to result. In fact, even if the choice were between the
celebrity’s life and 10 unknown people, consequentialist ethics would still suggest
we save the celebrity providing this would ultimately cause more happiness.
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Case 2.11
The charitable patient
A paramedic is en route to the hospital with a patient suffering from a narcotic
overdose. With the real threat of death playing upon the patient’s mind he thrusts
into the paramedic’s lap a large sum of money.
The patient informs the paramedic that he was going to spend this money on
illegal drugs, but would now like the paramedic to donate this money to a hospital
charity instead.
Before reaching the hospital the patient makes a partial recovery and, upon
feeling somewhat better, requests the money be returned to him.
Consequentialist ethics asserts that whether or not an action is ethical depends

on the consequences of the action. However, some believe that there are certain
actions that are always unethical, regardless of their consequences. This is because
they take moral rules, rather than human happiness, to be the most important factor
in determining what is ethical. It is this view that is upheld by our next ethical
theory – deontological ethics.
Deontological ethics
According to deontologists, an ethical action is not determined by its consequences.
Rather, an ethical action is one that is guided by moral rules.
To illustrate this approach consider the charitable patient in Case 2.11.
A paramedic influenced by deontological ethics would return the money if they
believed that there was a fundamental moral rule that stated, ‘Paramedics should
not accept money from patients (especially if they are in a vulnerable state of mind,
such as under the influence of drugs, or believing they are facing death)’. However,
bear in mind that far less happiness is likely to result from giving back the money.
That is, the hospital charity will not receive the money, and the patient who has
just suffered a drug overdose will then probably use the money to buy further drugs.
However, despite the fact that returning the money may make the world a less
happy place, according to deontological ethics this may be the right thing to do.
This is because deontological ethics is about following moral rules, rather than
weighing up the happiness of possible outcomes.
Compared to consequentialist ethics, deontological ethics may appear simpler.
This is because, rather than considering what actions are likely to result in what
consequences and calculating how much happiness will result, deontological
ethics only requires that a set of rules be upheld. However, it can often be hard to
determine exactly what these rules are.
Many people think moral rules arise from human rights and duties. A right is
something we have a moral entitlement to. For every right there is usually a cor-
responding duty. So, for example, if you have the right not to be murdered, then
21
everyone else has the corresponding duty not to murder you – and from this duty
the moral rule ‘Do not murder’ could be established.
Rights are generally considered to be universal. In other words they apply to
everyone at all times. For example, if we have a right to free health care, then it
would always be unethical for anyone to deny another such care. Note, however,
that although everyone may have rights, their corresponding duties need not
concern everyone. Take, for example, the right to patient–doctor confidentiality.
Although this right applies to everyone, the duty to uphold such confidentiality
only concerns doctors.
Although the notion of rights seems straightforward, there is some disagreement
over why people have them.
Some believe that certain rights have been established by God. Within Christian-
ity and Judaism, an example of such rights can be found with the Ten Command-
ments. For instance, the commandment, ‘Thou shall not murder’, describes our
duty not to murder, which in turn reflects our right not to be murdered. Others
believe that rights follow from those rules that, if followed by everyone, best ensure
we can live together in a civil manner. An example of such a set of rules might be
the Universal Declaration of Human Rights.
For our purposes we shall define deontological ethics as follows:
Deontological ethics The view that holds that an action is ethical if it is
guided by a set of universal moral rules.
Note that deontological ethics is sometimes also referred to as Kantianism
(after one of the major proponents of the view – Immanuel Kant), duty theory or
right-based ethics.
Although many of our ethical decisions seem guided by such moral rules, this
theory is not without its critics.
Objection: Is deontological ethics too rigid?

One seemingly good point about deontological ethics is that people influenced
by this theory should always act consistently. That is, if they always follow the
same set of rules, they should always perform the same actions under the same
circumstances. Yet, where some see consistency, others see problematic rigidness (see
Case 2.12).
Let us imagine that the paramedic is influenced by deontological ethics and
believes there is a moral rule that states, ‘all patients have the right not to have their
medical information disclosed to others’; that is to say, patients have the right to
privacy. (Such a right may seem appropriate, for if people believed that paramedics
might tell others about their medical condition, they might not be comfortable
divulging important information to them in more critical situations.)
However, imagine now that, instead of a mild and treatable STD, the patient
reveals he was diagnosed with HIV, and he also tells the paramedic that he has over
20 regular sexual partners. Should the paramedic, under these conditions, still
uphold the patient’s moral right to privacy? According to deontological ethics, if
there is a moral rule that states that you should not disclose medical information
to others, it may never be ethical to do so, no matter what the consequences.
22
Case 2.12
The STD gigolo
A paramedic is at the scene of an assault outside a nightclub, bandaging the
assailant’s fist. The assailant claims that he hit his partner in self-defence. He
reports that she flew into a rage after he told her that he was sleeping with
another woman. The police have advised the paramedic that no one is pushing
charges and the man is free to leave.
In his drunken state, the patient reveals that he has just been diagnosed with a
mild and treatable STD. He is aware of the risks associated with engaging in risky
sexual activity; however, he does not intend to abstain from unprotected sex with
the numerous partners he has or to inform them of his condition.
After the paramedic has finished bandaging the man, one of his (allegedly many)
partners arrives to take him home.
In addition, what if the paramedic also holds a rule that states, ‘One should
protect people from unnecessary harm as much as possible’? It seems this rule might
be in conflict with the earlier rule concerning privacy. For if the paramedic does
not break the privacy rule, the rule about protecting people from harm will end up
being broken, and vice versa. What is needed is further rules to tell us what to do
when such rules conflict.
To many people it seems almost impossible to determine all the moral roles that
might guide our behaviour. This has led some to think that, rather than focusing
on rules or consequences, perhaps the best ethical compass we have is our own
virtue. This is the underlying idea behind the final ethical theory we will be
introducing – virtue ethics.
Virtue ethics
According to virtue ethics, an ethical action is not determined by the consequences
of the action or whether it is guided by a particular rule. Rather, what is ethical
about an action is determined by whether it is guided by a person’s virtue. To
illustrate this theory, consider Case 2.13.
According to virtue ethics, the paramedic in this case has not acted ethically.
This is because their actions were not guided by a virtue, such as sympathy or
compassion for the patient, but rather by a vice, in this case lust.
According to virtue ethics, being ethical is less about what type of action you
perform and more about what type of person you are. The theory is that a perfectly
virtuous person would always act ethically. So if you wish to be ethical, your focus
should not be on rules or consequences, but instead upon your own character.
Thus, if a paramedic was serious about acting ethically, they should be equally
serious about becoming an ethical person – and to do so they should begin at
once to cultivate their own character. For example, they should be mindful of those
23
Case 2.13
The attractive celebrity
Imagine that a paramedic is called to the scene of a heart attack. Upon
discovering that the patient is an attractive movie star, the paramedic does
everything in their power to make sure the patient is properly treated.
Importantly, however, they do this not because it is the right thing to do, but
because they imagine that if they save the patient’s life, the patient won’t be able
to say no if, once they have recovered, they ask them out on a date.
occasions where they may have acted in anger and instead train themselves to
practise restraint.
This theory could be loosely defined as follows:
Virtue ethics The view that holds that an action is ethical if it is motivated
by virtue.
Most ethicists currently consider virtues to be deeply rooted character or person-
ality traits that exemplify a complex and highly moral state of mind. As Hursthouse
explains:
A virtue such as honesty or generosity is not just a tendency to do what is honest
or generous, nor is it to be helpfully specified as a ‘desirable’ or ‘morally valuable’
character trait. It is, indeed, a character trait – that is, a disposition which is well
entrenched in its possessor, something that, as we say, ‘goes all the way down’, unlike
a habit such as being a tea-drinker – but the disposition in question, far from being
a single track disposition to do honest actions, or even honest actions for certain
reasons, is multi-track. It is concerned with many other actions as well, with emo-
tions and emotional reactions, choices, values, desires, perceptions, attitudes, inter-
ests, expectations and sensibilities. To possess a virtue is to be a certain sort of person
with a certain complex mindset.8
Another central feature of a virtue is its universal applicability. In other
words, any character trait defined as a virtue should be regarded as a virtue for
everyone. According to this view, for example, it is inconsistent to claim that servil-
ity and chastity are female virtues, while at the same time suggesting they are not
male virtues.
Examples of virtues include: compassion, kindness, empathy, sympathy, altruism,
generosity, respectfulness, trustworthiness, personal integrity, forgiveness, friend-
ship, love, wisdom, courage and fairness.
Although this theory enjoys much support amongst ethicists, it too has its
drawbacks.
Objection: What do we do in the meantime?

Although cultivating a virtuous character seems like a good foundation to an ethical
life, given that very few of us will ever become perfectly virtuous people (even given
24
Case 2.14
The blood relative
A paramedic arrives on the scene of a road accident. A truck has hit a school bus
and three children are in a critical condition.
All three children, if they are left untreated, only have 20 minutes to live. The first
child can be stabilised in about 10 minutes. So too can the second child. However,
the third child will take 15 minutes to stabilise.
To the paramedic’s horror she also discovers that the third child is her own.
our best efforts), it is hard to see how virtue ethics will help us to make good ethical
decisions right now. To illustrate this difficulty, reconsider the case of the blood
relative (Case 2.14).
In this case it is hard to see what a virtuous person might do. Perhaps a virtuous
person would save their own child as they are guided by the virtues of loyalty and
kinship. However, perhaps a virtuous person would not save their own child’s life
because they are guided by the virtue of selflessness.
So, although it may be true that a perfectly virtuous person will always act ethi-
cally, this may not help us, as imperfect people, to ultimately determine what course
of action is ethical right now.
While we are busy cultivating our virtues it would be a good idea if we could
have a practical system in place to help guide our ethical decisions straightaway.
To such an end the four principles of bioethics have been developed.
The four principles of bioethics

So far we have introduced three different ethical theories typically used by ethicists
to justify ethical decision making. However, it may prove useful to also introduce
a more practical method. The method perhaps most widely used amongst healthcare
professionals was developed by Beauchamp and Childress9 and is known as the four
principles of bioethics.
The four principles of bioethics are four ethical principles which, when applied
together to an ethical case, should help you to determine the best course of action.
The four ethical principles are:
• autonomy
• non-maleficence
• beneficence
• justice.
Staunton and Chiarella describe the notion of a principle as ‘a rule or standard
to be applied in a given situation. There is a sense in a principle that it is the right
thing to do, that it will guide one’s behaviour’.10 We shall now introduce each of
these principles one by one, and then examine how they come together to guide
our actions.
25
What is the principle of autonomy?

The principle of autonomy states that you should ensure your patient is as able as
possible to make free and informed decisions about their treatment and that you
should respect, as far as possible, such decisions.
The principle of autonomy respects the right of self-determination and non-
interference of others when making decisions about themselves. It respects the
person, and places an obligation on others not to interfere or constrain the person
unnecessarily … Furthermore, we are charged with the responsibility to enable the
person to exercise their autonomy whenever possible. Autonomy underpins privacy,
confidentiality, veracity and consent, and assumes that the individual has the capacity
for deliberation.11
It is this principle that provides the basis for informed consent.12 In order to gain
informed consent (and so uphold the patient’s autonomy) the following three
conditions must be satisfied (at the very least):
1 Liberty The patient must be free from controlling influences.
2 Agency The patient must have the capacity to make a choice.
3 Understanding The patient must have the capacity to understand the
range of choices and their consequences.
To illustrate these conditions consider Case 2.15.
In this case the patient clearly displays signs of agency – that is, he is able to
make a choice regarding whether or not he wishes to go to the hospital. However,
this alone is not enough to suggest that the patient is able to provide informed
consent. There is strong evidence in this case to suggest that the condition of
Case 2.15
A possible suicide
A 63-year-old man has terminal cancer. He has been receiving palliative care for
some time and is in some pain. To deal with the pain he is able to self-administer
morphine.
On Wednesdays a nurse makes a routine home visit. During one of these visits the
man asks the nurse how much morphine he would have to administer in order to
kill himself. Although the nurse is unsure as to whether the patient is serious, or
indeed whether he has already administered a fatal dose, she decides to call an
ambulance just in case.
The paramedics arrive to find the man fully conscious. At first he claims to have
administered a dangerously large dose of morphine. However, as soon as the
paramedics attempt to transport him to the local hospital, he changes his story,
saying he was confused earlier and has not administered a large dose of morphine
He is adamant that he does not want to be taken to the hospital.13
26
liberty has not been met – for it seems the patient may well be under the control-
ling influence of morphine. Likewise, there is evidence to suggest the patient lacks
the capacity to understand the choice he has made – for he keeps changing his story
and is confused.
Paramedics only have a duty to uphold a patient’s autonomy as far as it is pos-
sible. In this case, because it may be impossible to get the patient’s informed consent,
the paramedic would not fail in upholding the patient’s autonomy were he to choose
to take the patient to the hospital against the patient’s wishes.
We only fail to uphold the principle in those cases where a patient is able to
provide informed consent for some treatment and does not give it, but we still
decide to administer the treatment.
What is the principle of non-maleficence?

The principle of non-maleficence states that, as far as possible, you should not harm
a patient, either through action or inaction. Failure to protect a patient from
needless foreseeable harm is commonly referred to as negligence.
This principle seems quite straightforward and, for the most part, it is. However,
at times its application might seem difficult (consider Case 2.16).
Although the alignment and traction of the leg will decrease the chance of
further injury, it will also cause further initial pain. And since the principle of non-
maleficence states that paramedics should not harm their patients, the paramedic
would not, in respect to this further pain, be adhering to this principle.
However, if, by causing harm now, a paramedic is able to lessen a greater harm
in the future, then causing this lesser harm may be acceptable overall. To better
understand such a possibility it may be helpful to consider the principle of non-
maleficence in conjunction with the next principle – the principle of beneficence.
What is the principle of beneficence?

The principle of beneficence states that, as far as it is possible, you should help
your patients. Again, this principle is, for the most part, straightforward. It is only
when we come across cases such as the broken leg in Case 2.16 that this principle
requires some explaining.
Case 2.16
The broken leg
A paramedic arrives at a sports stadium to find a patient with a badly fractured
leg, brought on by a particularly nasty rugby tackle.
The paramedic thinks that it might be worth aligning the leg and placing it in a
traction splint before transporting the patient to the hospital.
Aligning the leg in this way will cause the patient further pain initially. However,
once in the splint, the pain will normally decrease and there is less chance of
further injury to the limb.
27
The principles of beneficence and non-maleficence sometimes need to be weighed

against one another. For example, in the case of the broken leg, it may be acceptable
to harm the patient a little now in order to help them a lot in the future. This
process of weighing these two principles against one another is captured in what is
known as the doctrine of double effect.
The doctrine of double effect It is ethically permissible to cause some
unintended harm if this harm is a side effect of some intended good,
providing that this good could not be achieved any other way and not to
cause this good would result in a greater harm.
So, in the case of the broken leg, it may be permissible to cause the patient
some pain by aligning the leg, since this harm is an unintended side effect of the
intended good of lessening the chance of further injury to the limb, given the
paramedic could not have done this any other way, and not lessening the chance
of further harm would be a greater harm than the temporary pain caused by the
alignment.
What is the principle of justice?

A good way to think about the principle of justice within the healthcare profession
is to first consider how it operates within the legal profession. As far as the law is
concerned, justice, it is often said, is blind. This does not mean that legal profes-
sionals do not consider the evidence in front of them, but rather that each person,
regardless of race, religion or class, should be treated equally. In other words, the
law sets out to treat each person fairly. In the same way, the healthcare profession
is ‘blind’.
The principle of justice states that you should treat your patients fairly. A good
way to start thinking about this principle is to consider Case 2.17, in which there
is more than one patient to look after.
The principle of justice suggests that the paramedic should give each patient two
ampoules of morphine. This is because, all things being equal, treating each patient
Case 2.17
Two patients in equal pain
A paramedic has two patients in the ambulance en route to the hospital. Both
patients are in considerable amounts of pain after incurring burns to much of their
bodies. Unfortunately, the paramedic only has four ampoules of morphine to hand.
If the paramedic were to give one patient four ampoules of morphine, his pain
would be completely removed until they reached the hospital. However, the other
patient would be in considerable pain for the remainder of the trip.
If the paramedic were to give both patients two ampoules of morphine, their pain
would be halved; however, they would still be in some discomfort.
28
Case 2.18
Two patients in unequal pain
A paramedic has two patients in the ambulance en route to the hospital. The first
is in a considerable amount of pain, while the second is in a moderate amount of
pain. The paramedic has four ampoules of morphine to hand.
If the paramedic were to give the first patient three ampoules of morphine, his
pain would be completely removed until they reached the hospital. The second
patient only requires the one remaining ampoule to numb the pain for the
remainder of the trip.
fairly seems to entail reducing each patient’s pain, rather than leaving one patient
completely untreated.
Yet, we should not mistake the principle of justice as meaning we should treat
each patient identically. To understand why, consider a slightly modified version of
the previous case (Case 2.18).
If you were to treat both patients identically, you would end up giving both equal
amounts of morphine – two ampoules each. Yet, although the second patient would
be relieved of all his pain, the first would still be in some discomfort. Such a result
seems ridiculous given the alternative (i.e., three ampoules to the first and one to
the second).
Rather than thinking of the principle of justice as just ‘treat all patients equally’,
it might be better understood as ‘treat all patients equally according to their needs’.
Now that all four principles have been introduced, let us consider how they come
together into a single method of ethical decision making.
Applying the four principles

The four principles of bioethics are designed to help healthcare professionals make
ethical decisions. The idea is that, even when these principles conflict, we can weigh
them against each other in order to determine the course of action that best con-
forms to the principles overall. Given this approach, this method might best be
defined as follows:
The four principles of bioethics An action is ethical if it is the action that
is best able to uphold the principles of autonomy, non-maleficence,
To illustrate how this is achieved, please reconsider the case of the multiple
patient overdose (Case 2.19).
Imagine that the two actions the paramedic is considering are:
• Action 1: administer one full dose to one patient and another full dose
to a second (leaving two patients untreated).
• Action 2: administer half doses to all four patients (leaving no patient
untreated).
29
Case 2.19
opiate. Because it is New Year’s Eve emergency services are stretched and
Table 2.1 Applying the four principles of bioethics to the case of multiple
patient overdose
Principle Action 1 Action 2
Autonomy As all the patients are unconscious, As all the patients are unconscious,
informed consent in this instance is informed consent in this instance is
impossible impossible
Beneficence There is a high chance two of the four There is a high chance none of the
patients will survive four patients will survive
Non-maleficence There is a high chance two of the four There is a high chance all four
patients will die patients will die
Justice Two patients are being favoured over No patient is being favoured over
the others another
Now examine the salient points of each action, in respect to each of the four
principles, set out in Table 2.1.
The idea is to see which of the two actions best conforms to the four principles
overall. To help illustrate this method, let us work through each principle in turn.
With respect to the principle of autonomy, both actions conform equally well.
This is because in both cases the patients are unconscious, and so unable to provide
informed consent.
With respect to the principle of beneficence, it seems action 1 performs a little
better. This is because action 1 is more likely to help a greater number of people,
for the paramedic would most likely be saving two lives by performing action 1,
rather than only a small chance of saving a life if she performed action 2.
30
With respect to the principle of non-maleficence, it seems action 1 again performs

better. This is because action 1 seems to allow for less harm. The paramedic only
allows two people to die by performing action 1, while there is a strong chance all
four patients might die if they performed action 2.
Lastly, with respect to the principle of justice, it seems action 2 on this occasion
performs better. This is because, in performing action 2, the paramedic is treating
all the patients equally, rather than favouring just two patients as she would by
performing action 1.
Action 1 seems to come out best with respect to beneficence and non-
maleficence. Action 2 seems to come out best with respect to justice. And the two
actions tie with respect to autonomy. Therefore, it seems that action 1 better con-
forms to the four principles overall and, as such, is the most ethical course of action.
Conclusion
The aim of this chapter was to introduce some of the main tools used, not simply
to make ethical judgements, but to communicate and justify these decisions to
others in a consistent manner. Before examining these tools we first attempted to
dispel some common misunderstandings about ethics. These were:
• Acting ethically just means helping people.
• Acting ethically just means following the law.
• Acting ethically is only something to worry about in difficult cases.
• Acting ethically is about avoiding moral dilemmas.
• Acting ethically is relative.
We then introduced three competing ethical theories and considered some
objections against each of them. The theories outlined were:
happiness results.
by virtue.
These theories were then complemented with a widely used practical method for
decision making – the four principles of bioethics.
The four principles of bioethics An action is ethical if it is the action that
is best able to uphold the principles of autonomy, non-maleficence,
When reading the remaining chapters in this book, we suggest you attempt to
apply the four principles of bioethics and the three ethical theories to the various
cases presented.
By repeatedly attempting to apply these tools, you should be in a better position
to make more consistent ethical decisions. In addition, by referring to these tools,
you should also be able to justify your decisions to others in a more robust manner.
31
Finally, by seriously considering hypothetical cases, you should be better prepared

to make ethical decisions out in the field.14
Review questions
1 Why is an ethical action more than just an action that helps people?
2 What is hedonism and how does it relate to consequentialist ethics?
3 According to deontological ethics, when can a moral rule be broken?
4 What is a virtue?
5 What three conditions must be satisfied in order for a person to provide
informed consent?
6 What rule or principle relates beneficence to non-maleficence when you are
considering whether to cause some harm in order to advert a greater harm?
Endnotes
1 The Council of Ambulance Authorities (2010) Paramedic Professional Competency
Standards, v 2. Flinders Park: Council of Ambulance Authorities Inc, p. 7.
2 De Ville, K (1994) ‘What does the law say?’ Law, ethics, and medical decision
making. Western Journal of Medicine 160(5), p. 478.
3 Derse, AR (1999) Law and ethics in emergency medicine. Emergency Medicine
Clinics of North America 17(2), p. 307.
4 Johnstone, M-J (2008) Bioethics: A Nursing Perspective. Chatswood: Elsevier Health
Sciences, p. 98.
5 Shafer-Landau, R (2010) The Fundamentals of Ethics. New York: Oxford University
Press, pp. 277–278.
6 Rachels, J and Rachels, S (2007) The Elements of Moral Philosophy. New York:
McGraw-Hill, p. 20.
7 Mussolini, B (1943) Diuturna. In: Kuhn, H, Freedom Forgotten and Remembered.
Chapel Hill: University of North Carolina Press, pp. 17–18.
8 Hursthouse, R (2007) Virtue ethics. In: Zalta, E (ed), Stanford Encyclopedia of
Philosophy. Stanford University. Online. Available: http://plato.stanford.edu/
(accessed 17 May 2012).
9 Beauchamp, T and Childress, J (1994) Principles of Biomedical Ethics. New York:
Oxford University Press.
10 Staunton, P and Chiarella, M (2008) Nursing and the Law. Marrickville: Elsevier,
p. 31.
11 Freegard, H (2007) Making ethical decisions. In: Freegard, H (ed), Ethical Practice
for Health Professionals. Melbourne: Thomson, p. 37.
12 Please note that further conditions regarding informed consent will be outlined in
Chapter 6.
13 My thanks to Brian Steer for a version of this case.
14 My thanks to Malcolm Luck, Brian Steer, Catherine Strong, Rachael Fox, Emma
Rush, Daniel Cohen, Wylie Breckenridge, John Weckert, Graeme McLean, Brian
Stoffell, Lisa Bowerman, Ann Jensen and Anita Van Riet for their input into
this chapter.
32
Chapter 3
PRECARE – an ethical decision-making
model for paramedics
Morgan Luck, Brian Steer, Ruth Townsend
Learning objectives
• Identify the central problem in a variety of ethical cases
• Recognise which facts might be salient in addressing an ethical problem
• Consider and apply the four principles of bioethics
• Consider and apply the relevant professional code of conduct
• Consider an alternative way of resolving the ethical problem
• Understand where the law assists in resolving an ethical problem
• Evaluate various concerns and your own decisions with regard to ethical
decision making
Definitions
Alternative argument The best argument you can conceive of for an alternative
course of action.
Code of conduct The published basis for the guidance of ethical and professional
behaviour.
Ethical dilemma A case that requires you, in responding to it, to make a choice
between equally unfavourable options.
Four principles of bioethics approach The view that holds that an action is ethical
if it is the action that best upholds the principles of autonomy, non-maleficence,
Reconnaissance The process of going out into the field to gather salient facts in
order to gain some advantage.
33
Speaking up
A crew has been called to a railway station because of an assault. The police are
in attendance and have apprehended a young man who is alleged to have struck
another. While the injuries are minor, the police have requested both parties be
assessed.
The alleged assailant has an open wound to his hand and the victim an open
wound to his forehead; neither injury is considered to require hospital treatment.
The police inform the paramedics that the assailant voluntarily disclosed to them
that he was hepatitis C positive, but this information has not been communicated
to the victim.
Sensing the need for the victim to be medically assessed and treated due to the
risk of cross-infection, the paramedics urge the victim to attend hospital, as a
standard universally applied precaution for anyone at risk of contamination
(without explicitly mentioning hepatitis C). However, the patient repeatedly
declines as his wound is minor.
This chapter will introduce an ethical decision-making model designed to help
paramedics make considered decisions in difficult cases such as this one.
Introduction
Chapter 2 introduced some of the main theories used to ground ethical judgements.
In this chapter we shall explain how these theories, together with the law, might be
brought together into a single applied ethical decision-making model.
Note that the purpose of this decision-making model, referred to here as the
PRECARE model, is not to tell you what particular action to perform in a particular
situation, but rather to give you a way to approach difficult ethical cases in a
considered and structured manner.
The PRECARE decision-making model

It is one thing to have an understanding of the major ethical theories; it is quite
another to be able to apply them in practice. This can be especially challenging in
the pre-hospital environment. Paramedics often have to make decisions under dif-
ficult conditions, such as while under severe time pressures, dealing with highly
emotional people, being unable to consult with clinicians or relatives and managing
patients who may be physiologically and/or psychologically compromised. These
challenges are best met by having a decision-making model to hand that can act as
a guide in the field, and the more practised you are at using a model, the more
prepared you are likely to be.
The model we will present here is an adaptation of a model developed by
Kerridge, Lowe and McPhee,1 which in turn incorporates many of the features of
34
3 PRECARE – an ethical decision-making model for paramedics
the models proposed by Jonsen, Siegler and Winslade,2 Pellegrino and Thomasma3
and Koehn.4 This model has also been adopted by Staunton and Chiarella.5
For ease of memory we shall refer to the model as the PRECARE model (as in
PRE-hospital CARE). The components of this acronym are as follows:
Problem – Identify the ethical problem.
Reconnaissance – Get the facts.
Ethics – Consider the four principles of bioethics.
Code – Consider your professional code of conduct.
Alternative – Consider an argument for an alternative course of action.
Regulations – Consider the relevant legal regulations.
Evaluate – Evaluate the various considerations and make your final
decision.
We shall introduce each of these seven steps in turn by applying them to the
ethical case outlined in ‘An introductory case’ (‘Speaking up’) at the beginning of
this chapter.
Let us begin with the first step of the PRECARE model, which builds upon the
notion that difficult cases often involve an ethical problem.
Problem
In many cases decision making can be difficult because one or more ethical problems
need to be addressed before you can act in an informed manner, and it is in such
cases that an ethical decision-making model can be helpful.
The identification of the ethical problem involved in a case is the first step in the
PRECARE model.
P is for problem: identify the ethical problem.
Broadly speaking, an ethical problem is something about a case that needs to be
overcome before one can determine the most ethical course of action. In this
chapter, we shall focus on ethical problems that involve ethical dilemmas. In
Chapter 2 we explained that a case involves an ethical dilemma when you are faced
with making a choice between equally unfavourable options.
To illustrate this, reconsider the ‘Speaking up’ case. This entails a dilemma, as it
seems that the paramedic is forced to choose between disclosing confidential infor-
mation about the alleged assailant to the patient (in order to inform him of the
possibility of having contracted hepatitis C) or not disclosing this information (and
risking having a possible infection go undiagnosed).
Often these ethical problems are best highlighted by questions, which for the
‘Speaking up’ case might be:
• Should the alleged assailant’s medical information be kept confidential?
or, conversely,
• Should the patient be made aware of fact that they have possibly
contracted hepatitis C?
35
Often, the question can be worded in multiple ways. However, what is important
is that, by identifying this question, you have taken the first step to address the
problem.
Now that the notion of an ethical problem has been introduced, let us turn to
the next step in the PRECARE model – reconnaissance.
Reconnaissance
Reconnaissance is a term used to describe the process of going out into the field to
gather as many salient facts as possible in order to gain some advantage. The term
is commonly associated with a type of military operation, describing situations in
which troops venture into enemy territory in order to gather tactical information.
However, it also captures well the second stage in the PRECARE model.
R is for reconnaissance: get the facts.
In order to assist in addressing the ethical problem identified in the previous step,
it will often help to gather various salient facts about the case in question. This
means paramedics, especially if under time pressure, need to take control of a scene
and discover what is most likely to be objectively true and use these facts to help
them to consider possible answers to the ethical question.
For example, in the ‘Speaking up’ case, it was suggested that the central problem
could be captured by the question:
Should the alleged assailant’s medical information be kept confidential?
What fact or facts could the paramedic attempt to collect in this case that might
help answer this question? Well, the fact that hepatitis C is a significant illness will
inform the decision, and the fact that there is a chance of cross-infection would also
play a role. Both facts, in the case of a well-known disease such as hepatitis C,
should be known to the paramedic, so there may be no need to search for these
answers. However, one could imagine a variation of this case where the illness is far
less well known, and a paramedic might be required to telephone a doctor on a
private consultation line to determine the facts.
Another fact to determine would be whether the alleged assailant might
give his permission to disclose his medical condition to the patient. If he agrees,
then you may have successfully avoided the dilemma, which is a positive
outcome. A dilemma is avoided when you attempt to find a way out of the situ-
ation without taking either of the hard options, which in this case would mean
neither breaking confidentiality nor failing to inform the patient of his possible
condition. If you are able to successfully avoid the dilemma, the case no longer
involves an ethical problem, in which case the PRECARE model need not be
considered further.
Avoiding the dilemma is a positive outcome. However, it is not always achievable
and, if not, you will have to attempt to resolve the dilemma. A paramedic resolves
a dilemma when they consider the ethical problems and legal issues involved in the
case and, after due consideration, choose one of the hard options posed by the
dilemma. If you are going to attempt to resolve a dilemma, it is first important to
determine the available options open to you as the paramedic.
36
Any ethical dilemma, once identified, creates at least two or more alternative
choices, and there may be more creative options available than initially thought.
The production of alternatives is a precursor to marshalling supporting arguments
– ethical justification is about supporting one particular decision or behaviour
above/over a number of competing alternatives. The rational paramedic should
consider all the relevant alternatives.
Let us assume, in ‘An introductory case’, the paramedic has identified the follow-
ing two possible actions:
• Action 1: not disclosing the information to the patient and letting him
go home.
• Action 2: disclosing the information to the patient and transporting him
to hospital.
Gathering salient facts, including the facts about possible actions to take,
will often help to address the ethical problem and make an informed decision.
However, facts alone tell us nothing unless their ethical significance is understood.
This is why the next step in the PRECARE model involves an ethical analysis of
the situation.
Ethics
Identifying the ethical problem at the heart of a difficult case, and gathering facts
pertinent to addressing the problem, are the first two stages of the PRECARE
model. The third stage involves considering the ethical dimensions of the case.
E is for ethics: consider the four principles of bioethics.
In Chapter 2 we introduced the four principles of bioethics. It is at this stage of
the PRECARE model that we apply these principles. In brief, the four principles
of bioethics are four ethical principles which, when applied together to an ethical
case, should help you to determine the best course of action.
The four ethical principles are:
1 Autonomy You should ensure your patient is as able as possible to make
free and informed decisions about their treatment and you should respect
such decisions.
2 Non-maleficence You should not harm a patient, either through action
or inaction.
3 Beneficence You should help your patient.
4 Justice You should treat your patient fairly.
In order to illustrate this stage of the PRECARE model, and remind you of the
four principles approach, let us apply them to the ‘Speaking up’ case.
As you may remember from the previous section, reconnaissance has revealed
that the actions we are attempting to choose between are:
• Action 1: not disclosing the information to the patient and letting him
go home.
• Action 2: disclosing the information to the patient and transporting him
to hospital.
37
Table 3.1 Analysis of possible actions in terms of the four principles of bioethics
Principle Action 1 (do not disclose Action 2 (disclose
the information) the information)
Autonomy As the patient is unaware of all the The alleged assailant’s confidential
salient facts, he cannot make an information has been disclosed
informed decision
Beneficence This would not help the patient This could potentially help the
patient
Non-maleficence This could potentially harm the patient This would not harm the patient
if he has contracted hepatitis C
Justice No issues regarding the distribution of No issues regarding the distribution
resources of resources
Now let us examine the salient points of each action, in respect to each of the
four principles, as set out in Table 3.1.
Our aim is to determine which of the two actions best conforms to the four
principles overall. To help illustrate this method, we will work through each prin-
ciple in turn.
It is difficult to see which action best satisfies the principle of autonomy. Action
1 seems to fail the principle of autonomy because the patient is unable to make an
informed decision about their treatment as they are unaware of the possibility of
contracting hepatitis C. While the risk of infection might be small, should it
happen, the effect on the person’s welfare could be great. Allowing the patient to
make an informed decision affirms their autonomy. However, action 2 also seems
to fail this principle, as autonomy also underpins our right to privacy and confi-
dentiality. Informational privacy is an extension of autonomy, the control of infor-
mation about one’s self. By disclosing this information to the patient, the paramedic
is breaking the alleged assailant’s right to confidentiality.
With respect to the principle of beneficence, only action 2 would help the patient,
for only this action would result in the patient being informed of his possible
condition and, thereby, quickly receiving the appropriate assistance.
With respect to the principle of non-maleficence, it again seems that action
2 comes out on top. This is because action 1 allows the patient to leave without
knowing about his potential infection, which could then lead to further com
plications. Letting the patient leave constitutes knowingly failing to prevent
further harm.
Lastly, with respect to the principle of justice, no issues seem to arise in this case.
You may be tempted to say that action 2 is unfair because the alleged assailant’s
confidential information has been disclosed. And, because this is unfair, the prin-
ciple of justice has not been upheld. However, as Freegard states, ‘Justice, in an
ethical sense, refers to the fair and equitable distribution of benefits, burdens, and
duties among and between members of society’.6 In this case there is no issue con-
cerning the distribution of such resources. In addition, the issue of confidentiality
was considered under the principle of autonomy.
38
Given that action 2 comes out as best with respect to beneficence and non-
maleficence, and neither action 1 nor 2 clearly comes out best with respect to
autonomy and justice, it would seem that action 2 better conforms to the four
principles of bioethics overall. And, as such, there is an argument for action 2 being
the most ethical course of action. In other words, the paramedic should break
confidentiality and inform the patient of the possible risk of hepatitis C infection.
Although the four principles of bioethics are commonly used in the healthcare
profession, they should not be followed blindly. Rather, you should also look to
your professional code of conduct for further guidance. This is the next step in the
PRECARE model.
Code
The four principles of bioethics are a good guide to making ethical decisions in the
healthcare profession. However, there are also codes of conduct specific to paramed-
ics that you are professionally bound to consider and act in accordance with. This
is the fourth stage of the PRECARE model.
C is for code: consider your professional code of conduct.
In Chapter 4 you will be introduced to paramedic codes of conduct in more
detail. However, a code of conduct can be roughly defined as the published basis
for the guidance of ethical and professional behaviour. For our purposes we shall
focus upon the Code of Conduct released by Paramedics Australasia. Please note,
however, that you should also consider the code that relates to your own state,
territory and/or country.
Code of Conduct, Paramedics Australasia
Integrity
In carrying out their professional duties, Members must be honest, sincere and
trustworthy, acting in a manner that does not bring discredit to their profession.
Respect
Members must ensure their actions and treatment demonstrate respect for the client
as a person and that care is provided at the highest professional standard.
Responsibility/Accountability
Members must remain personally responsible and accountable for the professional
decisions they make.
Competence
Members shall maintain and improve the necessary skills and knowledge in their
areas of professional practice. They shall further accept the responsibility to work as
mentors for students in their areas of professional practice.
Consent for patient care
Wherever possible Members shall be committed to ensuring that they receive
informed consent from their clients prior to instigating and providing treatment at
the highest standard of contemporary care.
39
Confidentiality
Members must maintain confidentiality of any information they obtain in the course
of their work. They must not disclose any such information to a third party unless
there is a legal or professional duty to do so.
Research
Members shall promote, support, and where possible participate in research of pre-
hospital care practices and ambulance service management and technical service
support systems.
Ethical review
Members shall participate in the ethical review of their actions resulting from the
provision of pre-hospital care and conduct in their professional role, whether that
role is of a clinical, managerial, educational, or technical support system nature.
The ‘Speaking up’ case highlights what seems like a tension in this code between
respect and confidentiality. The respect clause of the code demands the paramedic
provide care for the patient ‘at the highest professional standard’. It certainly seems
that allowing a patient to leave without knowing about a potential infection does
not constitute the highest degree of care. However, the first line of the confidential-
ity clause demands that paramedics maintain the ‘confidentiality of any information
they obtain in the course of their work’. So how exactly has this code helped us?
Help may come from the second line of the clause on confidentiality, which states
that paramedics ‘must not disclose any such information to a third party unless there
is a legal or professional duty to do so’. This ‘unless’ caveat allows for the possibility
that a paramedic may break confidentiality, if there is a legal or professional reason
to do so. Thus, the codes of conduct might line up with the four principles of
bioethics, and suggest we break confidentiality. We shall examine the legal rationale
for possibly breaking confidentiality later in this chapter. The respect clause of the
code of conduct, which stipulates the highest degree of care should be provided to
the patient, might constitute a professional reason to break confidentiality.
Although we have determined that both the four principles of bioethics and a
professional code of conduct may provide arguments for performing action 2 and
disclosing the alleged assailant’s medical information to the patient, you should
remain critically minded and take into consideration the best possible argument for
an alternative course of action. This is the next step of the PRECARE model.
Alternative
In order to decide what action to take in a particular case, it is not enough to
determine that there is a good argument for one particular course of action; we
must also determine that there is no better argument for an alternative. So far, in
addressing the ‘Speaking up’ case, arguments have been presented from the four
principles of bioethics and a code of conduct in support of action 2. However, you
should also consider the strongest argument possible for an alternative action. This
is the fifth step in the PRECARE model.
Alternative: consider an argument for an alternative course of action.
40
So, what in the ‘Speaking up’ case constitutes a best argument for an alternative
action?
Two arguments have been presented for action 2, so what we are looking for is
the best argument we can for its only alternative – action 1. In Chapter 2 we con-
sidered three other ethical theories commonly called upon to ground our ethical
decisions. These theories were:
happiness results.
by virtue.
Although you should not feel limited to these theories, they can often provide
good arguments for alternative actions. Let us explore one now.
You might argue that, as a professional, you have a duty to uphold confidentiality
– that to do so is a universal moral rule that should never be broken. No matter
what the consequences are, you simply should not divulge this information, ever.
This would be an argument for action 1, from the standpoint of deontological
ethics. You could imagine that the alleged assailant, as a relevant stakeholder in this
case, would argue that he divulged the information about his medical condition to
the paramedics under the assumption that it is never acceptable for them to break
confidentiality and trusting that they would not.
Remember that you need not be convinced by this argument. All that is required
is that you consider the best argument you can for a course of action not already
considered. Now that we have identified this alternative, what next? Well, we cer-
tainly do not advocate simply focusing on the ethical theory that delivers the result
you want and ignoring the ethical theories that do not. To chop and change between
ethical theories merely to justify a course of action is disingenuous. Rather, we
should consider the weight of argument for this alternative course of action, along-
side arguments based on the four principles of bioethics and the professional code
of conduct. Before we do so, however, there is one last area of concern that we must
consider – the legality of the actions in question.
Regulations
As Kerridge, Lowe and McPhee point out, ‘… the law may be informed by ethics
but the methods adopted by each are different. This may lead to situations where
the two may even be opposed’.7
As stated in Chapter 2, as professionals paramedics are obliged to develop both
their legal and ethical compasses and apply them together to the situations they
encounter. Therefore, before any decision is made about the correct course of action,
you should determine the legal and/or regulatory factors at play in the relevant case.
This is the next step in the PRECARE model.
R is for regulations: consider the relevant legal regulations.
41
To help illustrate this step consider again the ‘Speaking up’ case.
In order to make a decision that is well rounded and representative of a profes-
sional way of approaching a problem, it is necessary to consider and understand
how the law would apply to the issue of privacy and confidentiality. It is important
to understand the principles underpinning the law so that it is read and applied
in context.
The ethical theory underpinning public health law that is largely applicable in a
situation concerning infectious diseases is consequentialist ethics, in which the
greater collective good is given primacy over that of the individual. So, where there
is a risk of harm to others as a result of the actions of an individual, it may be lawful
to breach an individual’s rights in order to protect the collective’s rights.
As noted earlier, the Code of Conduct of Paramedics Australasia recognises the
value of maintaining individual patient privacy because, without trust between
the paramedic and the patient, the paramedic–patient relationship would be made
more difficult. However, there is no legal ‘right’ to privacy in Australia. So, the
paramedic code of conduct and the law have the potential to be at odds on this
issue. To understand this potential conflict better, we will examine a piece of
the relevant law.
The law makes provision for the disclosure of an individual’s medical information
in certain circumstances via the various state and territory public health acts.
For example, the ACT Public Health Act 1997 (s110) states that a person shall
not, without good reason, disclose information about a person with a notifiable
condition unless:
(a) the disclosure is for the purposes of this Act or another law of the
Territory, the Commonwealth, a State or another Territory, or is
authorised under a code of practice; or
(b) the person to whom the notification relates consents in writing to such
disclosure.8
Hepatitis C is a notifiable condition but there is no definition of ‘without good
reason’ provided in the Act.
Support for disclosing may be found in the Commonwealth Privacy Act 1988
which does allow for disclosure if it is ‘necessary to prevent a serious and imminent
threat to an individual’s life, health or safety’.9 Although hepatitis C can result in
death, it is unclear in this case that it constitutes an imminent threat, since the pos-
sible cross-contamination has already occurred. However, disclosure now minimises
the risks to the patient and to others he may imminently come into contact with (it
would also minimise the financial and emotional costs associated with ongoing care
and treatment). So, disclosure seems consistent with the principles outlined in the
ACT Public Health Act 1997 (see Appendix 3.1).
If the alleged assailant does not agree to allow the information to be disclosed to
the patient, section 108 of the Public Health Act 1997 might offer more help. This
section applies to instances where a ‘responsible person’ requests a person with a
transmissible notifiable condition to inform a contact of the person at risk from
exposure to the notifiable condition; or to give permission to the responsible person
to do so. But when those requests are refused, as in the case here, the Chief Health
42
Officer should be informed and is authorised to trace contacts and notify them of
possible infection risks. Section 108 (5) also says that a responsible person may
notify the person at risk:
If a responsible person is authorised under this section to notify the chief health
officer or a contact about the contact’s potential exposure to a transmissible notifiable
condition, that authority operates notwithstanding any duty of confidentiality the
responsible person may owe to the person with the condition. (emphasis added)
A ‘responsible person’ is defined as a doctor, an authorised nurse practitioner, a
counsellor who has counselled the person in relation to the condition or a person
who is responsible for the care, support or education of the person at risk. It is
unclear whether a paramedic would fall into this latter category.
So, in short, an examination of the law offers no black and white answer to this
dilemma. However, given that the Public Health Act 1997 allows a ‘responsible
person’ who is ‘responsible for the care’ of the person to break confidentiality with
good reason and that the principles that underpin the Act state that a person who
has, or may have, a notifiable condition is accorded the right to receive all reason-
ably available information about the medical and social consequence of the condi-
tion and any proposed treatment, and the right to privacy provided this does not
infringe unduly on the wellbeing of others, there does appear to be some legal
support for action 2 – disclosure.
Therefore, after taking into account the legal and/or regulatory factors at play,
we are now in a position to evaluate our options and make a determination about
the correct course of action. This is the final step of the PRECARE model.
Evaluate
At this point in the process you should have gathered the information you need to
make a considered decision. The task now is to evaluate this information, that is,
weigh up the competing issues and determine the right course of action. As Staunton
and Chiarella state:
Whatever decision you finally make will be determined by the facts you discover in
your decision-making process and the value you place on the differing pieces of
information.10
Although these is no single straightforward method for evaluating the informa-
tion you have gathered, what is crucial is a commitment to rationality, which
involves both the consideration of all the possibilities and the ability to give an
account of why a decision is made and what thought processes led to a conclusion.
In the same way a particular clinical pathway is taken for good reason, so too is an
ethical decision made for good reason. Generally, a good reason has a number of
features: it is known or easily explained to the listener, and thus facilitates persua-
sion; it is relevant to the issue as defined; it is important to all interested parties; it
is connected to and provides a support or foundation to the course of action
defended. This is the last step of the PRECARE model.
E is for evaluate: evaluate the various considerations and make your final
decision.
43
To demonstrate the evaluation step, let us consider again the ‘Speaking up’ case.
So far we have considered four different arguments as to how you should act in this
case. They were based on:
1 the four principles of bioethics (ethics)
2 your professional code of conduct (codes)
3 an argument for an alternative course of action (alternative)
4 the legal regulations (regulations).
Now it is time to evaluate these considerations – that is, determine how much
you value each of these considerations in relation to each other. What is presented
next is a rather crude way of doing this. However, if nothing else, it demonstrates
how you need to weigh up each of these considerations and reach a decision.
Firstly, determine how important you think each of the considerations is in
comparison to the others. To illustrate this step consider a simple 1 to 10 scale –
with 10 being extremely important and 1 being of little importance. Let us now
consider a particular paramedic, named Paul, who ranks these considerations as
follows:
Ethics 7
Code 6
Alternative 2
Regulations 8
Paul felt that the legal/regulatory considerations were the most important, rating
them as 8. Second in importance were the four principles of bioethics, which Paul
rated as 7. Third in importance was the professional code of ethics, rated as 6. Lastly
was the alternative argument, rated here as 2 (perhaps demonstrating that Paul did
not find the argument from deontological ethics persuasive).
Paul might be tempted to stop there. Since he thinks the legal/regulatory con-
siderations are the most important consideration, why not simply follow their
recommended course of action in all cases? However, as stated in the previous
chapter, as professionals, paramedics are obliged to develop both their legal and
ethical compasses and apply them together to the situations they encounter. In other
words, we are looking for a more holistic decision-making process, rather than one
simply informed by one facet.
This type of cumulative evaluation is illustrated in Table 3.2.
Table 3.2 Applying the four principles of bioethics to the ‘Speaking up’ case
Consideration Action 1 (do not disclose the Action 2 (disclose the
information) information)
Ethics −8 +8
Code −6 +6
Alternative +2 −2
Regulations −7 +7
Evaluation total −19 +19
44
Here we can see that the scores Paul attributed to each consideration have been
weighed against one another, alongside the actions in question. If the action is sug-
gested by a particular consideration, it is given a positive number. If the action is
discouraged by a consideration, it is given a negative number. For example, Paul
rated the alternative viewpoint (suggested by deontological ethics) as only a 2. Thus,
you can see a +2 and a −2 in the alternative row in Table 3.2. The +2 under action
1 denotes that this action was suggested by this alternative viewpoint. The −2 under
action 2 denotes that this action was discouraged by this consideration.11 The totals
at the bottom represent the cumulative evaluation of each possible action. Action
2 clearly outweighs action 1 according to Paul’s evaluation. In other words, accord-
ing to Paul, the answer to the ethical problem captured by the question, ‘Should
the alleged assailant’s medical information be kept confidential?’ is no.
We should make it clear that this is only a crude illustration of the evaluation
process. The complex manner by which these values should be weighed against one
another cannot be accurately captured in such a straightforward manner. However,
what is being illustrated here is that paramedics should weigh up each of the
considerations offered and reach a decision based on the whole picture. Also, note
that we are not suggesting that the course of action decided by Paul is necessarily
the right one for a paramedic in this situation to take – only that this method of
arriving at a decision clearly demonstrates a considered approach.
After you have evaluated all the information and made a decision, the process
does not end. One further type of evaluation is required: an evaluation of your
decision after it has been made. As Staunton and Chiarella state:
Evaluation of the process as well as the outcome is essential, otherwise you will have
learned little from the process. The opportunity to reflect on our most difficult
dilemmas and the choices we made about them is to be welcomed. However, it is
important to recognise that the real reflection, as opposed to post-hoc justification,
can sometimes be painful. We may honestly feel on reflection that we could have
managed the situation better or made better decisions. But clinical–ethical decision
making is often made ‘on the run’ and, with the best will in the world, we will not
always get it right. It is important to welcome the evaluation as a learning opportu-
nity and to recognise the potential for improvement.12
The final part of the evaluate step, therefore, is to consider your decision in
hindsight and determine what you can learn from the experience so you can
approach the problem armed with that knowledge in the future.
Conclusion
The aim of this chapter was to introduce an ethical decision-making model to
paramedic practice. This model was designed not to reduce the amount of thought
that goes into making such decisions, but rather to provide a structure for such
thinking.
The model introduced was the PRECARE model (as in PRE-hospital CARE),
which is an adaptation of a model developed by Kerridge, Lowe and McPhee.1 The
components of this acronym are as follows:
Problem – Identify the ethical problem.
Reconnaissance – Get the facts.
45
Ethics – Consider the four principles of bioethics.

Code – Consider your professional code of conduct.
Alternative – Consider an argument for an alternative course of action.
Regulations – Consider the relevant legal regulations.
Evaluate – Evaluate the various considerations and make your final decision.
It is hoped that by applying this model to the case provided (and also applying
the model to further cases presented in this book), your ability to recognise and
deal with ethical problems encountered in the field will be strengthened.
Review questions
1 What is the value of utilising a model like PRECARE to assist with ethical
decision making?
2 What is reconnaissance and how does it apply to ethical decision making?
3 What is the difference between avoiding and resolving a dilemma?
4 Which consideration do you value most when attempting to resolve a
dilemma: the four principles of bioethics, legal regulations, professional
codes of conduct or some other alternative?
5 Can you identify the normative intersections of the law, the four ethical
principles of bioethics and your code of conduct? In other words, can you
identify the areas where the same values are repeated?
Appendix 3.1
Public Health Act 1997 (ACT), Section 99
Principles – notifiable conditions
This part shall be construed and administered in accordance with the following principles:
(a) the investigation of notifiable conditions, and any actions taken as a consequence, shall be
carried out in order to minimise the adverse public health effects of such conditions;
(b) a person who engages in activities that are known to carry a potential risk of exposure to
a transmissible notifiable condition, and any person responsible for the care, support or
education of such a person, has the following responsibilities:
(i) to take all reasonable precautions to avoid the contracting of the condition by the person
who engages in such activities;
(ii) if there are reasonable grounds for believing that the person who engages in such
activities has been exposed to the condition – to ascertain whether the condition has been
contracted, and what precautions should reasonably be taken to avoid exposing others to
the condition;
(iii) if there are reasonable grounds for believing that the person who engages in such
activities has contracted, or is likely to have contracted the condition – to comply with
preventative measures or treatment that will minimise the risk to others of exposure to
the condition;
46
Appendix 3.1
Public Health Act 1997 (ACT), Section 99 continued...
(iv) if there are reasonable grounds for believing that the person who engages in such
activities has contracted, or is likely to have contracted the condition – to take reasonable
measures to ensure that others are not unknowingly placed at risk through any action or
inaction of the person or any person responsible for the care, support or education of
the person;
(c) a person who has, or may have, a notifiable condition, or who engages in activities that are
known to carry a potential risk of exposure to a notifiable condition, shall be accorded the
following rights, to the extent that their exercise does not conflict with the requirements of this
part and does not infringe unduly on the wellbeing of others:
(i) the right to privacy;
(ii) the right to receive all reasonably available information about the medical and social
consequences of the condition and any proposed treatment.
Endnotes
1 Kerridge, I, Lowe, M and McPhee, J (2005) Ethics and Law for the Health
Professions. Annandale: The Federation Press, Ch 8.
2 Jonsen, AR, Siegler, M and Winslade, WJ (2002) Clinical Ethics: A Practical
Approach to Ethical Decisions in Clinical Medicine. New York: McGraw-Hill
Professional.
3 Pellegrino, ED and Thomasma, DC (1993) The Virtues in Medical Practice. New
York: Oxford University Press.
4 Koehn, D (1994) The Ground of Professional Ethics. London: Routledge.
5 Staunton, P and Chiarella, M (2008) Nursing and the Law, 6th edn. Marrickville:
Elsevier, p. 30.
6 Freegard, H (2007) Ethics in a nutshell. In: Freegard, H (ed), Ethical Practice for
Health Professionals. Melbourne: Thomson, p. 39.
Professions. Annandale: The Federation Press, p. 90.
8 See http://www.health.act.gov.au/c/health?a=sendfile&ft=p&fid=1152510217&sid
9 Privacy Act 1988 (Cth) Schedule 3 (private), Section 14 (public).
Elsevier, p. 32.
11 If you were unsure whether a consideration encourages or discourages an action, you
would place a ‘?’ next to the number and not include it in your evaluation total.
Elsevier, pp. 32–33.
47
Chapter 4
The ethical governance of
paramedic practice
Brian Stoffell
Learning objectives
After reading this chapter you should be able to:
• Understand what is meant by the term ‘governance’
• Appreciate the nature and limits of ethical governance
• See the point of codified ethics
• Understand the role assigned to principles in codes
• Apply some code stipulations to two complex cases
• Begin your own critical evaluation of the principles that codes embody
Definitions
Codes of conduct The published basis for the ethical evaluation of professional
behaviour.
Ethical governance Control that is exercised through the creation of regulations or
guidelines based on moral principles.
Principles Accepted postulates, values or standards employed to form a basis
for evaluation.
Neville and Sally
Neville is a newly graduated paramedic and, in his personal and university life, he
has been blissfully and innocently ignorant of the boundaries that surround
professionals in their relationships with clients. He is, as his mates say, ‘making
out like a bandit’. His sister, Gracie, has also recently graduated as an optometrist
and has familiarised herself with the Optometry Board of Australia’s Code of
Conduct for Optometrists. During a conversation about their newly gained
professional roles, Gracie cites her code:
7.2 – Professional boundaries
Professional boundaries are integral to a good optometrist–patient relationship. They
promote good care for patients and protect both parties. Good practice involves:
48
4 The ethical governance of paramedic practice
Neville and Sally continued...
a) maintaining professional boundaries
b) never using the professional position to establish or pursue a sexual,
exploitative or otherwise inappropriate relationship with anybody under
an optometrist’s care; this includes those close to patients, such as their
carer(s), guardian, spouse or the parent of a patient who is a child or
young person.
Neville is actively pursuing a relationship with Sally, the 17-year-old
granddaughter of an elderly woman that he had transported to hospital.
‘Where does your code of conduct stand on this issue?’ asks Gracie.
This chapter will demonstrate how knowledge of the relevant code of conduct can
help paramedics to determine what action may be required of them in their
professional role.
Introduction
The past 50 years has seen a steady growth in the creation and employment of codes
of conduct or ethics codes. These have come out of major organisations such as
corporations as well as the public sector. Commonwealth and state guidelines for
the conduct of their respective public officials began to appear in the early 1990s
and are now ubiquitous in Australasia. Equally, health professional organisations
are empowered to issue conduct codes and evaluate members by the criteria stated
in the codes; disciplinary proceedings are often the outcome of these evaluations.
What was once largely the province of medical associations is now a standard part
of professional governance.1
Our topic in this chapter is the ethical governance of paramedic practice. The
aim of this chapter is to provide a critical basis for the understanding and applica-
tion of the codes of conduct governing paramedic practice in Australasia.
Codes of conduct
The word ‘code’ has powerful historical antecedents and is strongly associated with
the most firmly prescriptive legal enactments. The towering example from the very
beginning of the recorded historical process is the Code of Hammurabi (1870 BCE),
a legal codification of the laws governing most aspects of life in the Babylonian
empire and incised in black granite blocks placed as boundary markers. The
Byzantine equivalent was the Roman law’s Code of Justinian (565 CE), another
compilation of the civil and criminal laws of that empire.
The modern use of phrases such as, ‘codes of conduct’, ‘ethics codes’, ‘codes of
ethical conduct’ and ‘ethical guidelines’ do not convey the same meaning. However,
for our purposes in this chapter all of these will be taken as equivalent. The impera-
tive force in the old imperial legal codes has clearly been watered down to a very
49
considerable extent, but governments and professional groups see their codes as
stronger than mere guidelines or suggestions for young players. Sometimes, but
rarely, a principled way of life is captured in a code: the Japanese samurai code, the
way of the warrior, is an excellent example worthy of study.2
Ethical codes are not referred to as ‘moral codes’ for reasons that I will
explain later, but that is no reason to believe that the terms ‘ethics’ and ‘morals’ are
historically distinct. ‘Morals’ is merely our form of the word that the Roman lawyer
Cicero (106–43 BCE) employed to translate the Greek word ‘ethikos’. That was
the term he found in Aristotle’s (384–322 BCE) two books, Eudemian Ethics and
Nicomachean Ethics.
Governance
Before entering into any discussion of the ethical governance of paramedic practice
we should be certain that we are clear about what the word ‘governance’ means.
Words can slip into common semi-technical usage and start to play a role in profes-
sional discussions without first presenting their credentials for examination. ‘Due
diligence’ is another example, but one that we are now comfortable with: what we
are now doing is due diligence on the word ‘governance’.
‘Governance’ is an abstract noun, like ‘perseverance’, and both draw their sense
from verbs of action: ‘to govern’ and ‘to persevere’. The ability to govern does not
require the role of a governor to be played by someone. One of the oldest senses of
‘governance’ was the ability to control one’s own passions; in other words, to exercise
self-control. Central to the idea of governance is the idea of control. Consideration
of governance only arises in situations where someone or some body of people can
exercise a degree of control. Our paradigm case of governance is control exercised
through a government via legislation and case law and supported by punitive
measures policed by the state.
It might be helpful for our purposes to divide the area of control or governance
into three separate domains:
1 self-control exercised by a person
2 control exercised jointly with others over all members of the group
3 control exercised by a legal regime over all citizens.
Another way to characterise these three domains is as follows:
1 self-governance (morality)
2 group governance through an agreed set of principles (elaborated in codes
or guidelines)
3 governance under the rule of law (the legal framework in a liberal
democracy).
For the sake of our discussion and keeping close to the historical meanings of
the term, the word ‘governance’ means control and we are concerned with the
manner or way in which the control is exercised. Control that is exercised within
a group through the creation of regulations or guidelines based on moral principles
is what we will mean by ‘ethical governance’. Our primary target, therefore, is the
second domain above.
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How ethical governance is distinguished from morality and legal governance

In a world without professional associations you might still have people active in
the field of health care. For example, medieval Jewish communities in Europe were
often forced to operate completely outside the state structures and provide their
own versions of welfare and health care.3 Individuals who provided care in such
communities or circumstances may have been guided by moral sentiments: compas-
sion and solidarity, for example. Beyond that, a guild or a professional group might
form and espouse principles to use in the evaluation of its members. Both versions
of governance – self-governance via moral principles and professional governance
via principles agreed upon by the profession – are autonomous; that is, they stand
on their own and do not rely on legal regulation either to exist or to function.
Although this chapter is about professional governance, we should never lose
sight of the fact that self-governance via moral aspirations is a core example of the
control of conduct.
One clear way to arrange your thinking about governance is in terms of circles
of control. The innermost circle is you as an individual. You have professional col-
leagues, all of whom are likewise small circles; together you are a small constellation.
Coordination between you and cooperation among you might be handled on an
ad hoc basis, but some of that work can be shouldered by the creation of a profes-
sional association. Treat that association as a much larger circle encompassing all of
the small ones. Being represented collectively has all sorts of advantages, but focus
on two functions of association: the regulation of your behaviour toward one
another and the regulation of your individual behaviour toward members of the
public who are outside the circle. The biggest circle that encompasses you, your
colleagues and the wider public is law exercised over a society that may contain
many communities of interest. Legal relations are ubiquitous and permeate both
personal and professional interactions in different ways: everything from marriage,
births, deaths, dog and cat ownership, conscription for war and real estate
transactions through to professional duty of care.
Being a professional among other professionals of the same kind can be a very
comforting feeling. You may have a sense of confronting the world in a unified way
and jointly creating the image that you wish the world to see: your professional
identity is expressed in the principles your association advertises as its ethical
mandate. But, of course, all of you (and everyone else for that matter), as individuals
and in small collectives, are embraced within a much bigger circle, the state.
Unlike individuals and unlike associations, the state governs through law; it uses
law to regulate human behaviour through prescribing what must and must not be
done, often followed by prescribed penalties for violations. When legal duties are
specified they are to be uniformly enforced, by either individuals pursuing their own
legal remedies or the state itself prosecuting what are taken to be criminal acts. The
heart of legal regulation is enforcement. In comparison, the heart of moral self-
regulation is persuasion: generosity, kindness, compassion, sympathy and loyalty are
all beyond the law, but lessons about human vulnerability and reciprocity can often
persuade us, especially if we are confronted with graphic images of suffering.4
Recall our definition of ethical governance: control that is exercised through the
creation of regulations or guidelines based on moral principles. Ethics codes or ethics
51
guidelines or codes of conduct or even codes of ethical conduct are all names for the
same thing: the published basis for the ethical evaluation of professional behaviour.
In the first instance, their intended status is twofold: as educative and persuasive
documents within the group and as public pronouncements to those served by the
profession. Professional associations cannot create obligations that are directly
legally enforceable; however, legal notice of what they say comes at a later stage of
proceedings where the law takes a profound interest in what professional regulation
says about interactions between professionals and their patients or clients.5
There is a good reason to keep the idea of a moral principle distinct from what
we identify as an ethical code or code of conduct. The reason relates to the role
played by underlying principles. They are not eccentric creations coming out of the
blue; they are likely to be uniformly accepted general precepts (sometimes called
moral notions) that have majority social support.6 On the other hand, codes must
inevitably differ from one another because the precise nature of the interactions of
professionals with the public will differ. Code makers are faced with the task of
trying to apply the conventionally agreed moral principles to work-a-day situations;
if they do not bring the abstract general principles down to practical situations, they
fail as guides and are probably working merely as window-dressers.
How does evaluation via the precepts in an ethics code differ from the personal
self-evaluation that I have called morality-as-self-governance? To be brief and blunt
about it, it may only differ in one respect. Our agreed principles and the precepts
used in codes are the evaluative tools we use to make intra-professional evaluations
of our behaviour. The personal survey that I do of my own behaviour may be based
on the self-same moral notions that underpin an ethics code. However, and this is
the big qualification, how we evaluate ourselves will go deeper and ramify further
because the relationships we have with others outside of our professional role will
create very complicated circumstances where no handy applied precepts may be
available. In order to tease out this feature, consider Case 4.1.
Case 4.1
The compromised practitioner
Andy, a paramedic, has just left a South Australian country station after a shift.
It’s a Friday night and he has the weekend off. He goes to the local pub to catch
up with mates and has more beers than planned, so he calls his partner, Sue,
who is driven to the pub to collect him and their car. On the way home to their
rural property they notice that a utility driving ahead of them is behaving
erratically, swerving from side to side. Next it veers off the road and hits a tree
at speed. Andy and Sue arrive at the scene of the accident and find the sole
occupant, a young male, bleeding profusely from neck wounds and seemingly
unable to breathe properly. An ambulance is called but it is at least 20 minutes
away and his partner Sue, who has no training, is feeling faint at the sight of
the victim.
52
The question for the paramedic is this: given that he has been consuming alcohol,
should he attempt to render the required emergency care that will stabilise the
victim and allow him to survive until the ambulance arrives? To help answer this
question, let us weigh up the legal and moral considerations as well as how this case
might relate to a code of conduct.
Legal considerations Is there any legislation that obliges Andy to avoid
assisting the victim because Andy is under the influence of alcohol? If there
were, it would be akin to drink driving legislation that prohibits him from
driving under the influence. The answer here will be entirely dependent on
the jurisdiction within which it is asked. The facts relate to South Australia.
Happening along as he did, Andy might count as a Samaritan, although a
somewhat drunk one. The Civil Liability Act 1936 (SA) s 74 functions to set out
the definition of a medically qualified Samaritan, an emergency situation and the
conditions under which a Samaritan will incur no civil liability for actions or omis-
sions. But, and this is the crucial point, this immunity to civil liability ‘does not
operate if the … Samaritan’s capacity to exercise due care and skill was, at the time,
significantly impaired by alcohol’.
In working through this question, we can make the assumption that what the
law does not prohibit it allows. Section 74 of the Civil Liability Act 1936 (SA) does
not prohibit a medically qualified but alcohol affected Samaritan from acting, but
it certainly does remove the immunity to civil liability they might otherwise enjoy.
If Andy intervenes and his impaired skill results in damage to the victim, Andy is
liable to civil action.
So, with no legal prohibition found, we can move onto the next consideration
because what the law allows a code of conduct may still prohibit.
Code of Conduct considerations Andy is a South Australian public sector
employee operating under the Code of Ethics for the South Australian Public
Sector plus the more tailored version of that code created by the SA Health
Department and SA Ambulance Service, the SAAS Code of Ethics and
Conduct. Is there any guidance for Andy in his code? The self-same
question will arise for any locally applicable code if the local law is
not prohibitive.
Andy is an off-duty clinician and, as such, the portion of his code dealing with
clinical ethical behaviour, section 5.9, will be relevant. That section says: ‘off-duty
SAAS staff are authorised to provide clinical care to their approved clinical level
providing that they make their presence known to the ambulance service at the
time. This must occur if intending to apply clinical judgment which may consist
of advice and or treatment’.
So, without doubt, Andy is code-bound to make the situation crystal clear to the
station when he calls the emergency through. Had he not been drinking, approval
would still have been required, but when granted it would carry with it indemnity.
That is not the case we are dealing with. Andy may share his situation with the
communication centre, as his code requires, but is he bound to accept their judge-
ment about what he should do?
53
Notice the use of the word ‘bound’ here. As we have seen, he is not legally bound
(required) to avoid helping. Is he code-bound to do the same thing?
Assume, for the sake of our case, that a very cautious approach is taken by the
service and Andy is told to stand by but not to touch the victim. The judgement
that this is a ‘reasonable direction’ is made by the service presumably. To ignore
these instructions will constitute misconduct (s5.5), so it would be safe to say that
on one line of reasoning Andy is code-bound or required to avoid intervening.
But is that all that the code says? Andy might be guided by other elements of his
code that seem to indicate another course of action. Sensitive attention to the code
by any paramedic will show that the ability to safeguard the public, and to ensure
public confidence in the integrity of the public sector, is critical. Reflection on this
core matter is required and applicable to employees ‘at any time’ (s5.5), not just
while on duty. At no time should they act ‘in a manner that a reasonable person
would view as bringing them [or] the agency into disrepute … or is otherwise
improper or disgraceful’. These are strong terms. The good repute (or disrepute) of
the service is at stake and what is considered to be ‘disgraceful’ is subject to a ‘rea-
sonable person’ test.
Andy may conclude that he should not stand by while a person dies right in front
of him. To stand by and do nothing, even though explicitly ordered, could in his
view be an utter disgrace and something that any reasonable person would see as
an outrage. Precisely how Andy might reach this view will depend, in part, on
his sense of what his community is like and what he believes they will and will
not tolerate.
So, the code of conduct says both that an employee should ‘comply with any
lawful and reasonable direction’ and that they should evaluate their actions in light
of what a ‘reasonable person’ would view as required. Those standards are loose
enough to allow genuine uncertainty to exist about what the code dictates in this
case. This degree of looseness is around what a ‘reasonable direction’ is and how a
‘reasonable person’ would react to the direction being followed.
Moral considerations Andy might feel that he is being thrown back on his
inner moral resources; in other words, he is being forced to act from a
sense of his own integrity and, in particular, what he believes to be
reasonable in the circumstances. Reasons of professional prudence
(probably carefully crafted from legal opinion and risk management) can
look like a cowardly evasion in a situation where the particulars are so
personal: this compromised clinician and this vulnerable accident victim.
There is no reason to believe that Andy is left completely high and dry by his
code of conduct and so forced to adopt some idiosyncratic basis for action. His
anguish about what to do is a personal anguish. However, his ideas about what is
reasonable in the circumstances are clearly not idiosyncratic: what is disgraceful or
cowardly or disreputable are social and contextual evaluations. They are also common
to both the code’s reason for existing at all and Andy’s evaluation of himself in terms
of the code.
There is one final point to make about code versus personal evaluation.
Notice that the conventional moral notions that are accepted as the basis for
54
intra-professional evaluation are socially agreed notions or concepts. The basic ones
will be set out below. Applying those notions to the evaluation of our personal
behaviour is not applying idiosyncratic ideas we create for ourselves. We are accept-
ing benchmarks whose evolution and history as ideas are intertwined with our
evolution as a species that is peculiarly vulnerable to physical and mental pain and
suffering; some of the damage we suffer comes directly from the non-human world,
but an enormous amount derives from interpersonal relationships. The human
capacity to suffer harm is the triggering mechanism that gives life to moral notions
or moral ideas. The capacity to respond to suffering in its myriad forms is the cre-
ative human response we call sensitivity.
Legal governance through laws creates legal duties that are uniformly applied and
enforceable across society, but ethical governance through professional codes creates
educative and persuasive material that is based on conventionally accepted moral
principles and applies only to designated groups within society. Moral self-evaluation
applies socially derived moral notions to our personal behaviour.
Principles and the role of moral principles in ethical governance

Let us start with a basic question: what are principles and how do we identify them?
There are two good answers, but we are only interested in one of them. Principles,
or first things (principia), are stated assumptions that begin a process (usually a rea-
soning process). The classic expression of this primary sense of principles is in the
geometry of Euclid, the physics of Newton and the mathematics of Whitehead and
Russell. Alternatively, principles are the derived standards that we discover in human
behaviour, make explicit and then apply to further behaviour as a standard.
Ethical principles share features of both but they more closely resemble agreed
standards for the evaluation of courses of action. This is also the core meaning of
‘values’ in public discourse, namely standards.
We are surrounded by reviews, codes, reports and good practice guidelines that
apply principles or values to professional practice. Surprisingly, the principles are not
derived from a transparent process of analysing practice; on the contrary, they tend
to be taken from a communal repository of values and then applied in new areas. So
we should expect that in our area of interest, paramedic practice, what are seen as
appropriate principles are in fact the acknowledged principles working as a stated
‘foundation’ in many existing documents (reports as well as guidelines and codes).
These principles have been employed by national bodies, such as the National Health
and Medical Research Council (NHMRC) in its National Statement on Ethical
Conduct in Human Research in 2007 as well as a number of healthcare professions in
their development of conduct codes.
Principles may be stated as bare value terms that are not given any operational
meaning: justice, autonomy, avoidance of harm and compassion are examples of
bare values. In almost every health care situation that I can think of, the need is for
applied principles, but it is salutary to remember that it is these bare entities that we
are supposed to be applying. By social convention we accord them the status of
principles: they are accepted values or standards. When we acknowledge that accep-
tance openly and honestly we come back to that first sense of principles as basic
assumptions.
55
Given this, principles should be understood as accepted postulates, values or

standards employed to form a basis for evaluation. So, moral or ethical principles
function to establish a basis for the ethical evaluation of conduct.
Paramedics and public sector ethics codes

All Australian states and territories have codes of conduct for public sector employ-
ees. These codes are mandated by public sector management legislation that often
allows for the creation of special approved codes to cover particular professional
groups within the public sector. In some states the ambulance services have exercised
that power, in other places the general code applies. These overarching state codes
are all in addition to whatever professional codes apply to state employees who are
members of health professional and other groups: medical practitioners, nurses,
psychologists, disability professionals, social workers, lawyers, optometrists, phar-
macists, dentists and so on inevitably answer to two codes.
The principles stated in codes covering paramedics

What follows is a list derived from a number of Australasian ambulance services,
state public sector codes and a professional association. Excerpts are presented in
their own words. Some of them state principles or values whereas others exemplify
what these principles might mean in practice. But please note, these are mere
excerpts and you should make yourself aware of your own state or territory code.
SA Ambulance Service Code of Ethics and Conduct 2010

The principles in this Code provide an ethical framework to guide the decisions and
behaviours of all SAAS staff.
The following values are the foundation of ethical behaviour at SAAS:
• Democratic values.
• Service, respect and courtesy.
• Honesty and integrity.
• Accountability.
• Professional conduct standards.
Ambulance Service of NSW Code of Conduct 2006

Values and principles underpinning this Code of Conduct (based on NSW
Ombudsman, Good Conduct and Administrative Practice, August 2003).
The reputation of the Ambulance Service and its standing in the community are
built on the following principles and these principles must be incorporated into the
decisions, actions and behaviour of all staff:
• Competence.
• Courtesy and respect for individuals.
• Cultural sensitivity.
• Ethical behavior.
• Fairness and impartiality.
• Transparency, openness, honesty and accountability.
• Responsibility.
• Efficiency and effectiveness.
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Queensland Public Service Code of Conduct 2010

The Code contains the ethics principles and their associated set of values prescribed
in the Public Sector Ethics Act 1994. It also contains standards of conduct for each
ethics principle. The ethics principles are:
• Integrity and impartiality.
• Promoting the public good.
• Commitment to the system of government.
• Accountability and transparency.
Code of Conduct for Victorian Public Sector Employees (No. 1) 2007

Made under the Public Administration Act 2004, s63, the Public Administration Act
2004 provides for the Public Sector Standards Commissioner to prepare and issue
Codes of Conduct based on the public sector values.
Public sector values:
• Responsiveness.
• Integrity.
• Impartiality.
• Accountability.
• Respect.
• Leadership.
• Human rights.
St John Ambulance WA Motto, Mission and Values

Motto: For the Service of Humanity
Mission: To provide high quality ambulance and first aid services for the welfare
of the Western Australian community with the best use of limited resources
available.
Values:
• Conservative in finance.
• Sensitive to the world.
• Aware of our identity.
• Encouraging new ideas.
• Valuing people.
• Allowing mistakes.
• Being organised for learning.
• Shaping the human community.
It should be noted that St John Ambulance in Western Australian publishes
something called a Code of Practice (2008). However, this Code of Practice is not to
be confused with a code of conduct designed for the governance of professional
practice; its objectives are organisational and training focused.
Ambulance Tasmania
Ambulance Tasmania operates under the State Service Code of Conduct and the State
Service Principles, both of which originate from the State Service Act 2000 (Tas).
Reference should be made to the Commissioner’s Direction No. 2-2001, titled State
Service Principles. The State Service Code of Conduct in part states:
57
The State Service Code of Conduct, which is contained in Section 9 of the State
Service Act 2000 (the Act)
Section 9 of the Act states as follows:
1) An employee must behave honestly and with integrity in the course of State
Service employment.
2) An employee must act with care and diligence in the course of State Service
employment.
3) An employee, when acting in the course of State Service employment, must
treat everyone with respect and without harassment, victimisation or
discrimination.
comply with all applicable Australian law.
5) For the purpose of subsection (4), ‘Australian law’ means –
any Act (including this Act) or any instrument made under an Act; or
any law of the Commonwealth or a State or Territory, including any instru-
ment made under such a law.
6) An employee must comply with any standing orders made under Section
34(2) and with any lawful and reasonable direction given by a person having
authority to give the direction.
7) An employee must maintain appropriate confidentiality about dealings of,
and information acquired by, the employee in the course of that employee’s
State Service employment.
8) An employee must disclose, and take reasonable steps to avoid, any conflict
of interest in connection with the employee’s State Service employment.
9) An employee must use Tasmanian Government resources in a proper manner.
10) An employee must not knowingly provide false or misleading information
in connection with the employee’s State Service employment.
11) An employee must not make improper use of –
information gained in the course of his or her employment; or
the employee’s duties, status, power or authority in order to gain, or seek
to gain, a gift, benefit or advantage for the employee or for any other
person.
12) An employee who receives a gift in the course of his or her employment or
in relation to his or her employment must declare that gift as prescribed by
the regulations.
behave in a way that upholds the State Service Principles.
14) An employee must at all times behave in a way that does not adversely affect
the integrity and good reputation of the State Service.
15) An employee must comply with any other conduct requirement that is pre-
scribed by the regulations.
ACT Public Service Code of Ethics

Under section 9 of the Public Sector Management Act 1994, the Code of Ethics, a
public employee shall, in performing his or her duties:
(a) exercise reasonable care and skill.
(b) act impartially.
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(c) act with probity.

(d) treat members of the public and other public employees with courtesy and
sensitivity to their rights, duties and aspirations.
(e) in dealing with members of the public, make all reasonable efforts to assist
them to understand their entitlements under the territory laws and to under-
stand any requirements that they are obliged to satisfy under those laws.
(f ) not harass a member of the public or another public employee, whether
sexually or otherwise.
(g) not unlawfully coerce a member of the public or another public employee.
(h) comply with this Act, the management standards and all other territory laws.
(i) comply with any lawful and reasonable direction given by a person having
authority to give the direction.
(j) if the employee has an interest, pecuniary or otherwise, that could conflict,
or appear to conflict, with the proper performance of his or her duties:
i disclose the interest to his or her supervisor; and
ii take reasonable action to avoid the conflict; as soon as possible after the
relevant facts come to the employee’s notice.
(k) not take, or seek to take, improper advantage of his or her position in order
to obtain a benefit for the employee or any other person.
(l) not take, or seek to take, improper advantage, for the benefit of the employee
or any other person, of any information acquired, or any document to which
the employee has access, as a consequence of his or her employment.
(m) not disclose, without lawful authority:
i any information acquired by him or her as a consequence of his or her
employment; or
ii any information acquired by him or her from any document to which
he or she has access as a consequence of his or her employment.
(n) not make a comment that he or she is not authorised to make where the
comment may be expected to be taken to be an official comment.
(o) not make improper use of the property of the Territory.
(p) avoid waste and extravagance in the use of the property of the Territory.
(q) report to an appropriate authority:
i any corrupt or fraudulent conduct in the public sector that comes to his
or her attention; or
ii any possible maladministration in the public sector that he or she has
reason to suspect.
Paramedics Australasia Code of Conduct

Paramedics Australasia (PA) is the national professional association representing
practitioners who provide paramedic services to the community.7 Paramedic prac-
titioners are best known for their involvement in the delivery of out-of-hospital
emergency medical care through their work with various Ambulance Service organi-
sations throughout Australia. However, paramedics work in many environments
including community, industrial, military and university settings as well as on
humanitarian and relief operations.
Integrity In carrying out their professional duties, Members must be honest,

sincere and trustworthy, acting in a manner that does not bring discredit to their
profession.
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Respect Members must ensure their actions and treatment demonstrates respect
for the client as a person and that care is provided at the highest professional
standard.
Responsibility/accountability Members must remain personally responsible and
accountable for the professional decisions they make.
Competence Members shall maintain and improve the necessary skills and knowl-
edge in their areas of professional practice. They shall further accept the responsibility
to work as mentors for students in their areas of professional practice.
Consent for patient care Wherever possible Members shall be committed to ensur-
ing that they receive informed consent from their clients prior to instigating and
providing treatment at the highest standard of contemporary care.
Confidentiality Members must maintain confidentiality of any information they
obtain in the course of their work. They must not disclose any such information to
a third party unless there is a legal or professional duty to do so.
Research Members shall promote, support, and where possible participate in research
of pre-hospital care practices and ambulance service management and technical
service support systems.
Ethical review Members shall participate in the ethical review of their actions
resulting from the provision of pre-hospital care and conduct in their professional
role, whether that role is of a clinical, managerial, educational, or technical support
system nature.
Code of Conduct for ambulance officers in New Zealand

This code was first issued in 1978 by The Ambulance Transport Advisory Board and
updated by the St John’s Clinical Standards Unit in 2004. Mark Deoki, the Clinical
Standards Officer (Northern Regions), commented that: ‘[w]hen we found an
edition of the Code of Conduct for ambulance officers we thought, wow. This docu-
ment covers a lot of unwritten rules of our profession. Things a procedure can’t cover,
and some things that need to be emphasised. With this in mind we have updated the
booklet largely to make it “Politically Correct”; however it is still basically what was
produced 26 years ago’. There are, as his comments indicate, a lot of pointers for
practice that cover a broad range of intra- and extra-professional issues. These are not
easily summarised, except by saying that the code offers practical guidance.
Observations on values and principles in codes

Because codes have a dual audience – the profession and the public – the expecta-
tion is that codes of conduct will contain statements that express a service or a
profession’s mission in service delivery. This is most obvious in the case of Western
Australia where the public service mission is followed by a statement of the values
that are taken to characterise how the mission should be fulfilled.
However, in all of the code examples given above there are elements that serve
to state the quality of the relationship to be expected by the public when they have
dealings with a service, an agency or a professional. So, quite apart from public
espousals of the mission, there is a reliance on intimate moral notions when framing
the professional or state code. Consider the following:
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• respect
• honesty
• integrity
• accountability
• impartiality
• fairness
• cultural sensitivity.
I refer to the items on this list as ‘intimate’ because they name qualities or traits
in individuals that are expressed in the way that those individuals deal personally
with real people, not with abstract entities like ‘the public’. These qualities or
personal properties were once simply called virtues. They have to do with the
moral tone of one’s dealings with others, and while these qualities are brought to
life in dealing with patients and clients, they probably also serve to state the ethical
aspirations that are a legitimate and central part of how a profession sees itself and
endeavours to propagate its values.
Inculcating values is the educative role of codes, and to do this the bare value
terms need to be given exemplification in scenarios and examples. This is not always
done but it is a highly desirable goal for any document intended to shape the
behaviour of newly graduated professionals.
On the other hand, there are some things named in these codes that are of a
quite different nature. Consider the following:
• promoting the public good
• democratic values
• commitment to the system of government
• human rights.
The public good, democracy, our system of government and human rights are
important features of our ethical landscape but they do not, unlike honesty and
integrity, count as virtues or name obvious behaviours to strive for. So what is their
role? In my view they present the face of codes of conduct designed for the whole
public sector and serve to remind their audience of what are taken to be primary
commitments. Affirming these primary commitments is what a political regime does
through its agencies; but it should be noted that these are not evaluative criteria for
the assessment of professional behaviour.
Applying the code principles to practice

I am of the opinion that law and ethics are intimately connected, so no responsible
professional judgement will stand simply on what someone’s conscience tells them
is correct. That may occur at the end of the day when all considerations are
exhausted, but the legal and social context of our decisions is always a relevant
consideration.
The example presented below is in a state jurisdictional context for two reasons.
The first reason is that what state or territory law dictates is an ethically salient
consideration. It is ethically salient because law in both its legislative and judge-made
forms is the accepted method of social coordination and sets known boundaries for
61
cooperation as well as defining interests. Secondly, codes of conduct are also created
within state jurisdictions and so may differ across the country.
The examples given in this chapter are to be worked through in detail for each
state jurisdiction’s law and/or conduct code. The hope is that you will do a thorough
analysis based on your local contexts. That analysis will entail researching both the
local law and the local code.
In the section ‘How ethical governance is distinguished from morality and legal
governance’ we examined the case of the compromised practitioner operating in a
South Australian context. The next case for detailed consideration is on confidential-
ity, and this one is set in NSW.
Confidential information
Consider Case 4.2.
Legal considerations For this NSW case, Sonia may refer to the Privacy
and Personal Information Protection Act 1998, Health Records and
Information Privacy Act 2002 and PD2005_362 (Privacy Manual) with
regard to personal information held by the Ambulance Service.
Case 4.2
Confidential information
Sonia is a newly graduated paramedic working for the Ambulance Service of
NSW. She has long been aspiring to the role. One of the primary motivators for
Sonia was to be actively engaged in one of the community’s front-line services.
The police, the fire services and ambulance had preoccupied her career thoughts
and she had always been an avid watcher of TV series and films on these
subjects. She came to see that the real life content for scripts needed to come
from professionals: forensic pathologists, emergency doctors, firefighters,
detectives, paramedics, lawyers and others were behind the scenes as writers and
script advisors. Sonia hankered to join that select group of contributors.
To build an archive of good case-based information, Sonia starts to dictate notes
into an mp3 player after call-outs. Remembering what her university emergency
law lecturer said about patient confidentiality and the penalties for violating it,
Sonia is careful to de-identify the details. Progressively, Sonia loads her cases into
her private laptop and starts to sort them into groups based on features that she
thinks might be of interest for TV producers. Suicides, attempted and completed,
drug overdoses and anything that has a vaguely sexual overtone start to
predominate.
A conversation with friends convinces Sonia that she should be using her social
network as critics-at-large, and she proceeds to construct rough scripts that she
publishes on her blog with links to her Facebook account.
62
Case 4.2
Confidential information continued...
Sonia’s script outlines are topical and she gets quite a following; among them are
other young scriptwriters. One is a journalist, Axel, who is working for a major
newspaper.
One day Sonia and her partner respond to an urgent call for assistance at a house
in Double Bay. As it turns out, it is the home of a Supreme Court judge. The caller
reports that the victim had been ensnared in exercise equipment: the ropes and
cables had choked him. On arrival the crew see a middle-aged man on the floor in
a bedroom; he is not responsive and has bruising to his throat. He is dressed in a
silk bathrobe but otherwise naked. His companion is a much younger Asian man
who says that he is the housekeeper. CPR is initiated and is successful. Both
Sonia and her partner are suspicious because they wonder if they have entered a
crime scene. On overhearing their conversation the housekeeper panics and admits
that ‘the judge’ was not really exercising but was engaged in an autoerotic act of
self-asphyxiation. It was pure luck that the housekeeper entered into the room
when he did and felt a heavy weight against the door barring him: the judge was
hanging by a belt attached to a sturdy hook behind the door.
Sonia creates a vivid scenario from the facts of the case and decides to leave
the character/patient named as Judge Hand. Although most think that it is just
Sonia’s version of the Michael Hutchence death, one person does not. Axel
has independently noted that one of the judges from the Supreme Court is on
indefinite sick leave and his insider hospital source suggests that the judge is
in a coma. Axel draws the conclusion that the judge was Sonia’s patient. Axel
tells Sonia that he plans to publish a story on ‘kinky judges’ but promises to keep
her name out of it.
When Axel’s piece appears there may be an attempt to find the source of the
information. Axel will adhere to his journalist’s code and refuse to expose his
informant (the hospital employee who passed on details about the judge’s
condition). But suspicion will reasonably fall on the Ambulance Service whose
officers were the first responders in attendance.
Sonia might reasonably assume that her handling of the information she came
by in her clinical work does not fall under the legal provisions dealing with the
privacy of personal information (Privacy and Personal Information Protection Act
1988 (NSW) s4A) and, since the issue is not about collection of data, she assumes
that the Health Records and Information Privacy Act 2002 (NSW) does not apply
either. She assumes, rightly or wrongly, that the issue is confidentiality whose point
as a principle is the protection of information from release to third parties.
63
Code of Conduct considerations Sonia works under the Ambulance

Service of NSW Code of Conduct and she is also a member in good standing
of Paramedics Australia. The Paramedics Australia Code of Conduct says:
Confidentiality
• Members must maintain confidentiality of any information they obtain in the
course of their work. They must not disclose any such information to a third
party unless there is a legal or professional duty to do so.
In the NSW Ambulance Service code at 1.4.0 she notes that:
• All staff will ensure that they keep all information they may obtain or have
access to, in the course of their work, private and confidential. The trust of
our patients and clients is paramount.
and that
• I will always comply with the Privacy and Personal Information Protection Act
1998, Health Records and Information Privacy Act 2002 and PD2005_362
(Privacy Manual) with regard to personal information held by the Ambulance
Service.
In doing this I will:
• Follow privacy and security procedures in relation to any personal information
accessed in the course of my duties.
• Preserve the confidentiality of this information.
• Inform the appropriate person immediately if a breach of privacy or security
relating to information occurs.
• Only access personal information that is essential for my duties. This includes
accessing any records relating to other staff.
• Ensure that any personal information is used solely for the purposes for which
it was gathered.
• Only divulge personal information to authorized staff of the Ambulance
Service who need this information to carry out their duties.
Sonia’s next assumption will be that compliance with the confidentiality clause
is mandated at section 1.4.2 of the Ambulance Service of NSW Code of Conduct.
Preparing for the worst, Sonia attempts to arrive at an argued position as to whether
or not she has breached her code(s).
Her first realisation will be that codes do not interpret themselves. The main
terms at issue in her case will be ‘information’, ‘official information’, ‘personal health
information’, and ‘confidentiality’. To help with the interpretation of these, Sonia
should address the ‘Explanatory Information’ section in Part 2 of her code.
2.4.2 Personal health information is personal information or an opinion about:
• A person’s physical or mental health or disability
• A person’s express wishes about the future provision of health services
for themselves
• A health service provided, or to be provided, to a person.
Any personal information collected for the purposes of the provision of health
care will generally be ‘personal health information’. It will also include personal
64
information that is not itself health related but is collected in connection with
providing health services or connected in association with decisions to donate
organs or body substances.
This information is the subject of the confidentiality requirement; so Sonia
is now forced to ask herself if she did expose to third parties the private health
information of the judge.
Reasoning in her own defence she might say that, unlike the hospital employee
who passed personal health information to Axel, she did nothing of that sort. There
was nothing personal or identifying about the case scenario she wrote, unlike the
hospital source responsible for passing the judge’s health information to Axel. Surely,
she thinks, de-identified facts can always be used for research or artistic purposes.
But playing devil’s advocate to her own defence she thinks about another scenario
that was tossed around her writer’s workshop: a huge fat man has a heart attack
while playing polo and is revived by an ambulance crew who happen to be close at
hand with the right equipment. The joke in the workshop was that the pony col-
lapsed and needed a paramedic vet. That set of facts she realises inevitably identifies
one well-known media owner.
However Sonia’s devil’s advocate is on shaky ground here because the facts of that
polo scenario were public from the beginning. It would be implausible to think that
any protection of privacy should cover the media mogul Kerry Packer’s collapse on
a Sydney polo field at Warwick Farm in 1990. The event occurred in public view
and was photographed at the time.
Trying another tack, Sonia wonders how she would feel as the judge who does
finally recover and sees the scenario played out on TV. Does he have grounds for
thinking that his plight was made the subject of gossip, that he was now open to
innuendo from those in the legal fraternity who were aware of his sustained
hospitalisation?
Finally, she adopts the perspective of the NSW Ambulance Service and wonders
how the service might view her attitude to the information she is gathering. Would
they consider that a dual role of service provider and scenario gatherer was likely
to erode trust and public confidence in the service? She also begins to wonder
whether she should have taken far more notice of the early part of her code (1.1.1),
where it is strongly recommended that anything potentially affecting professional
standards should be discussed with an appropriate person.
Conclusion
This chapter aimed to demonstrate how knowledge of the relevant code of conduct
may help paramedics to determine appropriate actions in ethically and legally
challenging situations.
To accomplish this aim two major approaches were used. First, a strong
emphasis was placed on conceptual clarity. The main ideas at work – governance,
principles and codes of conduct – were described and working definitions
provided. Second, two developed paramedic narratives or scenarios were
presented as examples of facts that should be amenable to analysis through a code
of conduct. Both were elaborated to give an indication of the range of consider-
ations that a student might cover when thinking through the facts. The first
65
approach is conceptual and theoretical whereas the second approach is pure

application.
To be able to apply codes to facts we needed a fairly complete set of examples of
state and territory codes. What is provided here is just a start; access to full versions
of codes is essential.
We stressed the obvious truth: codes do not interpret themselves. Acceptance of
that truth means that we agree that there will be room for interpretation and argu-
ment about the elements that are found in codes. This is where the critical attitude
comes into play: codes may be evaluative tools for the assessment of professional
behaviour, but they themselves should be the subject of critical evaluation.
Review questions
1 Ethical governance has been defined as ‘control that is exercised within a
group through the creation of regulations or guidelines based on moral
principles’. Does adherence to a code leave much room for personal ethical
judgement?
2 It has been claimed that, ‘the personal survey that I do of my own behaviour
may be based on the self-same moral notions that underpin an ethics
code’. Examine your own basis for self-evaluation and comment on that
statement.
3 If a code of conduct says that an employee should ‘comply with any lawful
and reasonable direction’, how might you arrive at an argued position on
what a reasonable direction is?
4 Given that the process of working under an ethics code is strictly ‘opt-in’,
what tests might you apply to assure yourself that your future professional
code is acceptable to you?
5 Do you believe that legislation created under a liberal democratic parlia-
mentary regime carries any ethical or moral weight with you? If so, why,
and if not, why not?
6 Why is privacy so important to people and why should you treat confiden-
tiality as such a strong professional obligation?
Endnotes
1 Coady, M and Bloch, S (eds) (1996) Codes of Ethics and the Professions. Melbourne:
Melbourne University Press.
2 Yamamoto, T (1979) Hagakure. Tokyo: Kodansha.
3 Walzer, M (1983) Spheres of Justice. Oxford: Blackwell.
4 Hart, HLA (1961) The Concept of Law. Oxford: Oxford University Press, pp.
151–180.
5 Freckelton, I (1996) Enforcement of ethics. In: Coady, M and Bloch, S (eds), Codes
of Ethics and the Professions. Melbourne: Melbourne University Press, pp. 130–165.
6 Kovesi, J (1967) Moral Notions. London: Routledge and Kegan Paul.
7 See website at: http://www.paramedics.org.au.
66
Chapter 5
An introduction to the legal system and
paramedic professionalism
Ruth Townsend
Learning objectives
• Know where our laws come from
• Describe briefly how the law operates
• Identify the structure of the legal system
• Analyse the law and its relationship to paramedic practice
Definitions1
Act of Parliament See legislation.
Actus reus Latin for guilty act.
Beyond reasonable doubt The standard of proof required to find a person guilty of
a criminal offence.
Case law The principles of law arising from judicial decisions of legal cases.
Common law Unwritten law derived from decisions by the judiciary.
Criminal law The body of rules and legislation that prohibits certain conduct and
imposes a penalty or punishment on those who are found to have committed such
conduct.
Duty of care The obligation owed to anyone who could be injured by a person’s
lack of care. It must be ‘reasonably foreseeable’ that an injury could result from
the lack of care.
Illegal Describes behaviour that is contrary to criminal law.
Judiciary Those people who adjudicate legal disputes in courts of law.
Jurisdiction The scope or area the law’s authority covers.
Legislation A law or body of laws made and enacted by the Parliament (known as
a statute or an Act of Parliament).
Mens rea Latin for guilty mind.
Natural justice The notion that proceedings are conducted impartially, fairly and
without prejudice.
On the balance of probabilities The standard of proof required to establish liability
in a civil matter.
67
Precedent A decision that interprets law and acts as a guide for future cases. It is
an important doctrine that ensures there is a stable legal framework on which to
consider each new legal case.
Statute See legislation.
Unlawful An action that is in breach of civil law (can also be used in reference to
breach of criminal law).
The negligent paramedic
A paramedic is called to a patient suffering from an anaphylactic reaction. He
administers adrenaline as per his protocol but fails to take the patient’s blood
pressure in between intravenous doses of adrenaline. The patient’s blood pressure
rises rapidly and results in the patient having an intracerebral bleed and
subsequently dying. The paramedic is required to explain what happened to the
patient, his employer, the Supreme Court and the coroner.
This chapter will introduce you to some of the methods by which paramedics can
determine what the law is, where the laws come from and how the law operates
as well as provide a broad introduction to the machinery of the legal system and
how it all applies to paramedics.
Introduction
Paramedics have been slowly moving towards professionalism for a number of
decades. There are a number of characteristics that define a profession, including
altruism, trustworthiness, specialist skills, a body of knowledge, competence and
professional autonomy. A ‘professional’ paramedic would reflect these characteris-
tics, not only with a minimum standard of clinical education and competence, but
also through an understanding of the application of ethical standards regarding
conduct and character and a knowledge of the law and its application to paramedic
practice.
The law is essentially a set of rules that establishes community expectations of
behaviour and so establishes the ‘norms’ of acceptable and appropriate behaviour
in our society. This chapter will introduce you to the legal system and will outline
where paramedics and paramedic services fit into the legal system. For example, the
use of the term ‘paramedic’ and what the law understands that term to mean will
be discussed. The areas of law that most relevantly apply to the area of health will
be delineated in broad terms. ‘Health law’ covers many different areas of law and
includes contracts, torts, criminal, administrative, equity and coronial law. This
chapter will provide a basic outline of the Australian legal system, its structure and
function, and how it applies to paramedics.
68
5 An introduction to the legal system and paramedic professionalism
What is the law?

Our legal system developed from the British legal system upon colonisation. We
have since adapted our laws to meet the needs of our own communities, but the
elements of the law that we debate today originated in Britain. The ‘law’ is a system
of rules and regulations that are designed to ensure that individual human rights,
such as our rights to life, liberty, justice and equality, are able to be upheld. A law
is a rule that comes from a legitimate authority – a democratically elected parlia-
ment – and applies to everyone equally. Laws are created to make sure that everyone
in a society understands what is expected of them as a member of that society (their
obligations, or duties) and what they can expect of others, including government
(their rights).
In addition to setting out the ‘rules’ by which we live, another function of the
legal system is to resolve disputes. The nature of our legal system is largely adver-
sarial. This means that, following the development of a dispute between competing
parties, the parties request a hearing by the court to resolve the dispute. The parties
bring the evidence that supports their case to the court and present the material.
The court acts as an independent decision maker, taking into account the established
facts of the case, considering the law that applies in each instance and deciding who
has, in civil cases, on the balance of probabilities, the stronger claim. In criminal
cases, the matter is heard and determined by either a judge alone or judge and jury.
They are required to decide whether the case brought against a person, on behalf
of the state, is able to be proved, by the state, beyond reasonable doubt. There are
other instances when the court takes an inquisitorial role, such as Coroner’s cases,
where the purpose of the court is to investigate and determine what has led to the
unexpected death of a person. Administrative courts or tribunals are convened to
resolve other types of disputes including, for example, issues of guardianship for
patients who may be incompetent to make decisions regarding their health care.
The differences between these jurisdictions will be discussed later in this chapter.
Law is often understood as being more than simply a set of rules imposed by a
legitimate authority. Some people claim that there is an underlying philosophy or
legal theory that ‘true’ law builds upon. In the next section we will examine what
such an underlying philosophy might be.
Legal philosophy
There are several theories of law, or legal philosophies. These are theories about what
the law is, or what it should be. They include:
Natural law theory, which proposes that law is derived from universal
moral principles and suggests it represents a higher moral authority.
Positivism, which proposes that laws are created by human institutions and
that there is no necessary connection between law and morality.
Principles theory, which views the law as intersecting rules and broader
moral concepts, referred to as ‘principles’.
Critical legal studies, which recognises laws as constructs and suggests that
laws, and the legal system, favour the powerful. Critical legal studies views
‘laws’ through a broad social and political paradigm.
69
For our purposes, we shall assume the viewpoint of principles theory. That is,
we assume our legal system has a core set of principles that are fundamental to the
legal system, including considerations such as procedural fairness, judicial precedent
and the separation of powers. These principles are encapsulated in the concept of
natural justice, which is the foundation of the system, and its application ensures
that legal rights and interests are able to be protected and promoted. Other
principles include:
Fairness That it is fair that people know the rules that apply to them and
that they must comply with.
Transparency That the legal system is open and transparent and that
decisions are open to review and appeal.
Equality before the law That each person has access to the legal system
regardless of their ability to pay and that the system is applied equally and
not more favourably to those that are, for example, richer or hold a higher
position in society.
Freedom from bias That the decision maker must excuse themselves from
hearing and determining a case if they have an interest in the case.
The right to be heard That each side has a right to put their side of the
story to the court for consideration.2
The principles of law and the agreement by citizens to abide by the law are part
of what is known as the social contract. The notion that the people have the right
to legislate and that any law written that is not ratified by the people is not, in fact,
a law was first proposed by Jean-Jacques Rousseau in 1762 in his treatise titled, Du
contrat social ou Principes du droit politique. This built on an earlier theory developed
by Thomas Hobbes and John Locke. Social contract theory effectively states that
some organisation is preferred over anarchy and that a government is a way of
gathering citizens together to provide that organisation. That group is given author-
ity to make laws for the benefit of the community. Thus each individual within a
society relinquishes some freedom and independence to that group in return for
organisation, protection and security. If, however, the government does not provide
benefits to the community and attempts to abuse this power, either through bad
laws or bad governance, then the community has a legitimate right to rise up and
challenge the legitimacy of those laws and, indeed, that government. Case 5.1
gives an example of how it is necessary to apply the rule of law consistently in
order to promote confidence in the system and ensure fairness. It also highlights
how the rules of law apply equally to the judiciary as they do to others accessing
the legal system.
This case highlights the need for all those within the legal system to act in accor-
dance with the key principles of procedural fairness and due process. If the law is
unable to be appropriately applied, even by the members of the judiciary, there is
a risk that the public will lose confidence in the rule of law and, therefore, be less
likely to comply with it, and this could have a negative impact on the safe and
effective functioning of our communities.
70
Case 5.1
Filthy pig (extended)
In August 2011 a young male paramedic, CM, and his female partner, KJ, were
called to a patient, W, who had been assaulted. The paramedics assessed the
patient who requested transport to hospital. On route to hospital the patient
became aggressive and spat on the floor of the ambulance. The treating
paramedic said, ‘Don’t fucking do that, this is an ambulance, you filthy pig’.
The situation escalated and the ambulance was pulled over so that the patient
could be removed from the vehicle. The patient then threw an icepack at CM’s
head, shouted and swore at him, and then punched CM in the side of the head. KJ
was a witness to these events. As it happened, an off-duty police officer driving
past also witnessed these events. In court, the magistrate, Pat O’Shane, heard
evidence from the male paramedic who was the victim of the alleged assault but
failed to take any evidence from the two witnesses. Magistrate O’Shane then
dismissed the matter on the basis that it was CM who initiated the physical
interaction and, therefore, the actions of W were taken in self defence.3
The dismissal of this case led to a call for an appeal to be lodged and a complaint
made to the Judicial Commission, on the basis that Magistrate O’Shane did not
apply the foundational principles of law when hearing the matter, which included
the right of the prosecutor to bring evidence of the matter before the court so
that the judicial officer presiding over the matter relied on all the evidence to
establish the facts of the case.
This was not the first time that Magistrate O’Shane had been accused of failing to
properly apply the law. On at least three other occasions she had been criticised
for refusing to allow a prosecutor to call further witnesses and effectively acting
as counsel for the defendant rather than as an impartial judicial umpire. As a
result of this judicial impropriety, the Supreme Court has criticised her for clear
failures to apply procedural fairness.4
How is the law made?

The highest law in the country is the constitution, which allows for the Common-
wealth Parliament and the High Court to be established. This law was made at the
turn of the 20th century when the colonies came together and agreed to become a
federated nation operating under one constitution. The constitution outlines how
the federal government is to operate with respect to areas like taxation and trade,
its relationship to the states and defence. The full title of Australia’s constitution is
the Commonwealth of Australia Constitution Act 1900. The constitution can be
found in libraries or on the internet.5
You may, from time to time, have heard of ‘constitutional challenges’ to pieces
of law written by the parliament that may not be permitted under the constitution.
71
The High Court of Australia determines whether a law is permissible under the
constitution or not.
The constitution does not give any power to the federal government to make
laws related to emergency services or, more particularly, paramedic services. These
laws are written at a state or territory level and this is why each is slightly
different.
The Australian legal system relies on two sources of law. The first is legislation
enacted by parliament and commonly referred to as an Act or statute. The second
is known as the ‘common law’, which is a body of law made by judges as a result
of decisions from individual cases. This is also referred to as precedent or case law.
An Act of Parliament
Laws made through parliament by elected representatives are known as statutes,
legislation or Acts of Parliament.
A statute is made in a variety of stages. Firstly, an issue is identified either by a
parliamentarian via their electorate or raised by a lobby group or in response to
other events. For example, the ACT Medical Treatment (Health Directions) Act was
introduced to give greater assurances to people who wanted to make choices about
their end-of-life care. Other legislation, like the Public Health Act, was originally
written in response to an outbreak of epidemics6 and an acknowledgement that
regulations about sewerage, pollution, water cleanliness and transmission of disease
were needed to ensure that those standards were applied by industry, thus allowing
for healthier environments and workers and improved productivity.
Once the issue to be regulated has been identified, a government department
is tasked with gathering data on the issue and putting together a document
with recommendations about how to best address the issue via laws and other
methods. If a law is to be drafted, this is undertaken by the appropriate government
ministry and then tabled as a Bill to the parliament for debate, amendment and
approval. The Bill can be defeated by a vote of the parliament at any stage of its
journey through the process of development (see Table 5.1). A Bill is an Act prior
to it being approved and enacted by the Governor (state or territory) or Governor-
General (federal).
Difference between an Act and a Regulation

An Act of Parliament is the primary instrument in setting out the rules regarding
particular matters. A Regulation is a document that is subordinate to the Act but
is important because it often delegates who has certain powers to do what under
the Act and prescriptively sets out other details required for the implementation of
the Act.
The Acts and Regulations that are most likely to apply to paramedics are outlined
in Appendix 5.1.
For example, the Queensland Ambulance Service Act 1991 authorises the estab-
lishment of an ambulance service. The Queensland Ambulance Service Regulation
2003 sets out the fee that can be charged for emergency ambulance transport.7
Regulations are often referred to as ‘delegated legislation’ because the Act delegates
power to the regulation maker (e.g. a minister of the government, the
72
Table 5.1 The process of development of a Bill

Step Action
1 Bill is introduced to the Parliament.
2 First reading speech followed by initial debate.
3 The Bill goes to a Select committee, which hears public submissions on the
proposed law. The Select committee then reports recommended amendments to the
Bill to the House with an explanation of the recommendations.
4 The Bill is read a second time and there is a significant debate around the principles
of the Bill, its purpose, objectives and stated outcomes, and the recommendations
that have been forwarded from the Select committee.
5 The Bill is considered by a full committee from members of the Lower House where
each clause and part is carefully considered and further amendments made.
6 This process occurs again in the Upper House (or in reverse).
7 The Bill is assented to become an Act of Parliament.
8 The Bill is read a third and final time and any final debate is had at this point prior to
the Bill going to the Governor or Governor-General for assent into law.
director-general or chief executive of an organisation) to make the Regulation that

holds the details that assist the purpose of the Act to be achieved. For instance, in
NSW the Health Services Amendment (Ambulance Service) Regulation 2011 autho-
rises the Chief Executive of the Ambulance Service to take disciplinary action
against a member of staff.8
Precedent
Laws are also developed from cases that come to court. Law that is made in this
way is based on the particular circumstances of a case and how that case relates to
legal principles and existing legislation. Interpretation of the meaning of particular
pieces of legislation can be determined via individual cases. This is called case law
or common law and is based on the legal doctrine of precedent.
Doctrine of precedent The doctrine under which the law is bound to
follow previous decisions unless they are inconsistent with a higher court’s
decision or wrong at law. This doctrine was developed to promote certainty
about what the ‘rules’ are and consistency and equity in the way the law
is applied.
Common law is different to a statute or an Act and does not rely on a piece of
parliamentary made law to underpin it. Precedent means that, where a similar case
has come before a higher court and a decision made based on similar facts and
circumstances and legislation, a lower court is bound by the decision of a higher
court to essentially follow that court’s interpretation of the legislation and the way
in which it applies to the facts. If the case comes from a different jurisdiction (that
is, not from a higher court within the state where the original decision was made),
73
it is considered as a persuasive case. This ensures a level of consistency and transpar-

ency in the system. This also means that when researching legal cases you must be
aware of the jurisdiction in which the decision has been made. For example, some
cases from America may be interesting but they have no legal weight here because
those decisions are not based on our laws or precedents. Common law is written
down in a number of court judgements and as such it can be difficult to be aware
of these laws.
Different types of law

In this section we shall examine different types of law. These are:
• criminal law
• civil law
• administrative law
• customary laws
• human rights laws
• international law.
Criminal law
Criminal law essentially reflects the rules and behaviour expected of citizens within
our society. It is often punitive (punishing) in nature, meaning that if someone is
found guilty of a criminal offence they are often punished by limitations on their
freedom (gaol sentence) or something similar (e.g. community service). Criminal
laws often mirror society’s moral position about an action or omission to act (i.e.,
what is considered to be right and what is wrong). For example, murder is a crime
and we would generally argue that to murder another person, that is, to arbitrarily
and intentionally take the life of another (as opposed to killing them in self-defence,
for example) is not only legally wrong but also morally wrong.
Each state has its own piece of criminal law like the Crimes Act, but essentially
the laws in each state and territory regarding criminal acts are the same. There are
some significant differences that relate to health law including, for example, that
abortion is lawful in Victoria and the ACT but is still a criminal act in New South
Wales and Queensland. Criminal law forms some of our oldest pieces of law and,
from time to time, these laws have been amended to bring them up to date with
modern society. For example, the South Australian Criminal Law Act was written
around 1913. It was later amended and, in 1972, South Australia became the first
state in Australia to decriminalise homosexuality. The members of parliament who
are responsible for writing the laws are also representatives of their communities
and, therefore, would be expected to reflect the views of their constituents in these
laws. There are other pieces of legislation apart from the Crimes Act that contain
offences punishable by imprisonment or, at the least, financial penalties (fines). For
example, the Road Transport Act may include laws on drink driving, speeding and
running red lights.
Criminal cases are brought to court by the police acting on behalf of the citizens
of the state. For a crime to have been committed, it must have two essential
elements:
74
1 that the action is considered an offence (actus reus)

2 that there was an intention to carry out the act or that there was a high
degree of reckless indifference as to the outcome of the action (mens rea).
So note, in general criminal law the following applies:
• It is punitive in nature.
• Actions are brought by police.
• Punishment is often a loss of liberty.
• The act must meet the elements of a crime (including recklessness,
intent, statutory offence etc).
• The person charged with the offence is known as the ‘accused’.
• A person charged with a criminal offence has a right to not incriminate
themselves.
• The standard of proof to be found guilty of a criminal offence is ‘beyond
reasonable doubt’.
Civil law
Civil law has nothing to do with the police. Civil law was developed as a way for
people to resolve disputes. These disputes often involve issues of property, negli-
gence, workers compensation, contracts and the like. They usually arise when one
party is seeking monetary compensation from another for an alleged breach of
contract or agreement. The standard of proof in determining who will be successful
in the action is that on the ‘balance of probabilities’ one side’s case is stronger than
the other’s. This standard is lower than in a criminal case where the standard of
proof ‘is beyond reasonable doubt’. This is because in a civil matter a person’s liberty
is not at stake should they lose their case, and we generally deem that a person’s
liberty is worth more than any dollar value.
For example, consider Case 5.2.
Case 5.2
blood cells, which should help stabilise the patient.
However, the patient informed the paramedic before falling unconscious that she
was a Jehovah’s Witness and did not want to be given a blood transfusion.
75
This case demonstrates the complexity of the law and how it applies in clinical
practice. If the paramedic were to give the patient the blood despite the patient’s
refusal of consent for treatment with blood, the paramedic might commit a civil
wrong of trespass and battery of the person, for which the patient might later claim
compensation. If the patient was not actually competent at the time of the refusal
and the paramedic had made an error in assessing this and thus acted accordingly
(i.e., did not give the blood), the paramedic may face an allegation of negligence
for failing to meet their duty of care to the patient but there was no intention to
harm the patient. If the paramedic were to intentionally refuse to administer the
blood knowing that it would cause the patient’s death and the patient had not
refused to accept it, then it may be that the paramedic’s actions go beyond civil
negligence and cross into criminal negligence. The issues raised in this case will be
discussed in more detail in subsequent chapters, but it is given here as a way of
illustrating the difference between a civil and criminal act.
In short, in civil law the following apply:
• It has nothing to do with the police.
• An action can be brought by one person against another.
• Compensation is usually made in the form of money or goods.
• The person bringing the action is called the ‘plaintiff’ and the other party
is known as the ‘defendant’.
• The standard of proof for a case is ‘the balance of probabilities’.
Torts
Torts are civil wrongs that serve to protect a person’s interest in his or her body,
property, finances or reputation. One of the most common torts that is of much
relevance to paramedics is the tort of negligence, where one party owes a duty of
care to another, breaches that duty, harms the person and enables that person to
bring an action for compensation to be paid to the injured party. Examples of other
torts include trespass (touching a patient without consent) and defamation (making
a claim that publicly lowers the reputation of a person).
Administrative law
Administrative law refers to the branch of law that considers matters of govern-
ment power and authority. For example, the Administrative Decisions Tribunal
would consider matters regarding the extent of the powers of the public guardian
or the Guardianship Tribunal. Does the public guardian have authority under
the Guardianship Act to withdraw life support from the person in their charge?
Decisions of the Administrative Decisions Tribunal can be reviewed by the
Supreme Court.
Customary laws
Although there is a substantial proportion of the Australian population that con-
siders the arrival of the First Fleet in 1788 as an invasion rather than a settlement,
there was no formal declaration of war on the Indigenous Australians and, there-
fore, under international law, Australia was considered to be peaceably settled.9 As
76
a result, the laws of the colonising power applied and that meant British laws.
There was no legal recognition of the property rights of Indigenous Australians
until 1992 when the High Court recognised Indigenous land rights (Mabo v The
State of Queensland).10 However, this decision did not result in Indigenous Austra-
lians being able to apply their own legal systems, although in some circumstances
magistrates have attempted to apply the common law in a way that recognises
customary law.
Human rights laws

The ACT introduced the first Human Rights Act in 2004. This Act protects 20
basic human rights and has the power to shape the way all legislation in the ACT
is interpreted to ensure that it is interpreted in accordance with human rights.
Victoria also has a Charter of Human Rights. Federally, at the national level, there
is no Bill of Rights in Australia. However, it is important to note that human
rights protections exist in other laws. For example, the anti-discrimination laws
protect individuals against discrimination on the grounds of gender, race, religion
and sexual preference. When interpreting statutes (parliamentary made law), the
courts have recognised rights such as the right to silence (not to incriminate
oneself ), the right to natural justice, the right of access to the courts and protec-
tion of property rights.
Rights have also long been protected by the common law, for example, confiden-
tiality (which is discussed in Chapter 4). It has been suggested that all health prac-
titioners should be aware of human rights for the following reasons:
• Health policy, programs, practices and research may inadvertently violate
human rights.
• Violations of human rights have important adverse health effects on
individuals and groups.
• Promoting human rights is now understood as an essential part of efforts
to promote and protect public health.11
There are different types of human rights that may be broken down into various
sub-categories including political and civil rights, which is the right not to be sub-
jected to an action of another that would limit your rights. For example, the right
to life limits the rights of others to take your life away. Government has a duty to
protect these rights. This includes: recognition of the right to life, liberty and secu-
rity of person; freedom of movement; freedom from torture or cruel, inhumane or
degrading treatment or punishment; and freedom from arbitrary arrest and deten-
tion. There are also economic, social and cultural rights that impose a more positive
duty on government, that is, the government should provide something, such as
the highest attainable standard of health, work, social security and adequate food,
clothing, housing and education.
Australia also has a Human Rights and Equal Opportunity Commission. Its
purpose is to promote and protect human rights and equal opportunity, investigate
alleged breaches of human rights and alert government to issues relating to the
jurisdiction. The jurisdiction the commission covers includes areas of discrimination
on the basis of race, sex, age and disability.
77
International law
International law is law that has developed between nations to allow for the estab-
lishment of rules regarding international relationships. Examples of international
law include international treaties and conventions like the International Covenant
on Civil and Political Rights (ICCPR).
International law is relevant for emergency workers such as paramedics who may,
as a requirement of their practice, be sent to work in foreign countries. Without
the boundaries and protections of international law, working in these countries
could pose many problems.
The structure of the court system

As Figure 5.1 illustrates, the court system is a hierarchical system.
The jurisdiction of a matter, that is, the court in which a matter will be heard,
depends on the nature of the matter. For example, local courts (or magistrate’s
courts) deal with minor criminal and civil matters that are heard by a judge alone,
whereas the High Court of Australia deals with matters relating to Australia’s con-
stitution and other questions of law that have been unresolved in the lower courts.
Coroner’s courts The primary function of a coroner’s court is to inquire
into the nature and cause of unexpected, violent, unnatural deaths or
deaths that occurred in hospital, following an anaesthetic for example,
or a death that occurs in prison. The coroner acts as the judge in this
Federal Court
High Court of Australia
of Australia Federal
Magistrates
Court
Family Court
of Australia
State/Territory
Court of
Appeal
State/Territory
Supreme Courts
Tribunals
E.g. Industrial, professional
District or County courts disciplinary, workers
compensation, land and
environment, health,
administrative.
Local courts or Magistrates’ courts
Licensing courts, children’s courts,

coroner’s courts
Figure 5.1 The structure of the court system
78
jurisdiction. The coroner’s role is not to attribute blame to a particular

individual for the death of another person, although if this is reasonably
adduced at a coronial inquiry the matter may be referred by the coroner
to the police for action, but rather to find the cause of death so as to make
recommendations about how future deaths from the same cause can be
avoided. Many new laws have been developed with the intention of
keeping people safe as a result of coroner’s inquiries; for example,
mandatory fencing of swimming pools.
Local or magistrate’s courts The local court deals with minor criminal
and low claim civil matters, for example, parking fines and speeding
charges. The local court also has jurisdiction to hold committal hearings to
determine if a serious criminal case is strong enough to go before a jury.
District or county courts District courts sit above local courts (or
magistrate’s courts) and below supreme courts in the hierarchical legal
system, with the district court largely hearing serious criminal matters or
large claim civil matters. The matters there can be heard by a judge alone
or by a judge and jury. The judiciary (judges) are those who are appointed
(not elected) to impartially adjudicate legal disputes in court. Judges are
not only required to make decisions regarding disputes but, in doing so,
they are required to not only consider precedent law and statute (Acts of
Parliament) but can also follow certain legal principles to interpret how
those laws apply in a particular situation. A decision of the court is often
called a ‘judgement’, ‘determination’ or ‘finding’.
Supreme courts The highest courts in the states or territories, these courts
deal with civil claims for damages that may be unlimited in amount. The
criminal jurisdiction of these courts deals with the most serious crimes
(murder and child sexual assaults).
Court of appeal A court of appeal is the supreme court’s appellate
jurisdiction. That is, the court of appeal will hear matters from specified
courts and tribunals when there is a matter of law in dispute.
Federal court The court has jurisdiction in a range of matters arising under
federal law (as opposed to state law).
Family court This court deals with family disputes and is able to pursue
matters across state and territory lines because the court has federal
jurisdiction.
High Court The High Court is Australia’s most senior court with
jurisdiction over the constitution, but it also has the discretion to hear
matters on appeal from federal, state or territory supreme courts and is thus
Australia’s ultimate appeal court. The High Court consists of a Chief Justice
and six Justices appointed by the Governor-General.
Tribunals
Each state has its own system of tribunals, which are less formal types of courts.
They usually have a number of people sitting on a panel listening to material
79
presented to them. Often there is only one legally qualified person on the panel.
The panel is otherwise made up of appropriately qualified professionals who are
able to understand the material that is presented to them. For example, on a
mental health review tribunal, the tribunal is often made up of a lawyer, a psy-
chiatrist and one other person who may be a lay person who has an interest
in mental health or who may be a mental health worker of some sort. Appeals
from tribunals will be heard in a higher court. The tribunals that paramedics are
most likely to come into contact with include those related to mental health,
workers compensation, administration (for occupational disputes) and the guard-
ianship tribunal, when seeking to establish who the decision maker is for an
incompetent patient.
How to read law

Law can be confusing to research because it uses its own language. However, given
that the law governs everyone every day, it is important to be able to find, read and
understand it.
When looking up a case of Australian law, the best place to start is with a legal
database. The Australian Legal Information Institute (Austlii) is a free public access
database.12 It has all Acts and Regulations in each state and territory and all cases
from each state and territory’s Supreme Court. Austlii also has material from New
Zealand. Some states have access to particular law journals that can be used for
research. The Victorian law journal site provides access to decisions made by the
Mental Health Review Tribunal. The New South Wales site provides access to deci-
sions made by the Guardianship Tribunal and the Nurses and Midwives Professional
Standards Committee. Having access to the cases and decisions made by each of
these tribunals allows health practitioners to gain a better understanding of legal
terms such as ‘unsatisfactory professional conduct’ and ‘professional misconduct’.
Being found to have engaged in misconduct may result in the loss of employment,
so being aware of the terms and what the behaviour encompasses can assist in
keeping paramedics and the public safe.
Legal case citations are often given in the following format: Rogers v Whitaker
(1992) 175 CLR 479. Figure 5.2 provides an overview of what each part of this
citation is referring to.
So in this case, the ‘Rogers’ in ‘Rogers v Whitaker’ refers to Dr Rogers, who was
appealing a decision made by the Supreme Court of NSW, which had found him
to have been negligent in his care of Mrs Whitaker, his patient. Dr Rogers is referred
to, therefore, as the ‘appellant’ and Mrs Whitaker as ‘the respondent’ because she
was responding to his appeal to the High Court of Australia. Mrs Whitaker origi-
nally sued Dr Rogers in the Supreme Court of NSW for damage she sustained as
a result of Dr Rogers’ failure to inform her of all the risks involved in the ophthalmic
surgery she undertook. As a result of the surgery, Mrs Whitaker lost sight in her
eye. The Supreme Court agreed that Dr Rogers had been negligent in failing to
inform Mrs Whitaker of the risk, and so Dr Rogers appealed the decision to the
Supreme Court of Appeal, who dismissed the appeal. That earlier case is recorded
as Rogers v Whitaker (1991) 23 New South Wales Law Report (NSWLR) 600. Dr
Rogers applied and was granted special leave to have the matter heard by the High
80
The case name is

always in italics with
the person or The page
organisation bringing The volume number number where
the action listed first. decision begins
The ‘V’ Stands
for versus (or and)
Rogers v Whittaker (1992) 175 CLR 479
The year of the Where decision is

decision published
Figure 5.2 Legal case citations
Court of Australia, and that decision is recorded in the Commonwealth Law

Reports (CLR).
Where do paramedics fit in the legal system?

What are ambulance services?
Eburn and Bendall have discussed the definition of ‘ambulance services’, which
broadly encompasses two components:
• the provision of pre-hospital emergency care
• the transport of the sick or injured.13
However, there is no legislation in the Northern Territory or Western Australia
outlining what constitutes ‘ambulance services’.
Who can provide those services?

In all states and territories with the exception of the Northern Territory and Western
Australia, it is an offence to provide an ambulance service for fee or reward without
the permission of the relevant government minister.14
Who can legally use the title ‘paramedic’?

‘Paramedics’ are not registered health practitioners and, therefore, there is no associ-
ated restriction on the use of the title, unlike doctors or physiotherapists, for example.
Anyone may call themselves a paramedic and not be in breach of a law. The primary
issue of concern with this is that it has the potential to undermine the reputation of
the profession. For example, someone without any training or experience in the
practice of paramedicine, but who may call themselves a paramedic, may treat a
patient in a first-aid tent and, in so doing, fail to meet the standard of care that a
81
trained and experienced paramedic would apply. This has the potential not only to
injure the patient but to damage the reputation of the profession. It is not unreason-
able for the general public to expect that someone calling themselves a ‘paramedic’
and offering themselves out as providing a healthcare service would have the associ-
ated quality safeguards in place to ensure the safety of their patient is protected and
that the patient could expect a reasonable level of care from that practitioner. As
Eburn and Bendall note, registration means that only registered ‘paramedics’ who are
subject to all the safety mechanisms accompanying that title (including appropriate
clinical and professional education and training and a level of professional account-
ability associated with registration) would be legally allowed to use that title.13
This also guarantees that patients can make safe and informed choices as to who they
allow to treat them, rather than trusting in good faith that those using the title ‘para-
medic’ have the requisite knowledge and skill to do so safely, competently and
professionally.
What about paramedic registration?

In 2008, the Council of Australian Governments established an intergovernmental
agreement about the health workforce regulation.15 The aim of this arrangement
was to improve health workforce portability across the Australian states and terri-
tories while also providing for improved national governance of health professional
regulation.16 The new system established a single national registration and accredita-
tion system for 10 health professions: chiropractors; dentists (including dental
hygienists, dental prosthetists and dental therapists); medical practitioners; nurses
and midwives; optometrists; osteopaths; pharmacists; physiotherapists; podiatrists
and psychologists. In early 2011, the Australian Health Ministers’ Advisory Council
announced that four partially regulated health professions, namely Chinese medi-
cine practitioners, medical radiation practitioners, occupational therapists and
Aboriginal and Torres Strait Islander health practitioners, will join the National
Registration and Accreditation Scheme in June 2012.17 Paramedics are currently
excluded from the National Registration and Accreditation Scheme. In some coun-
tries, such as South Africa, independent self-regulatory professional boards regulate
paramedics and their practice. Paramedic lobby groups such as Paramedics Austral-
asia have been working to have paramedics included on the register, and recent
commentary suggests that the Australian Health Ministers’ Conference (AHMC)
has given in principle support for the national registration of paramedics from as
early as 2014.18
There are many reasons why paramedics should be registered as healthcare prac-
titioners, not the least of which is that paramedics could be recognised by law as
healthcare professionals, which they currently are not.
Paramedics as professionals
Flexner first attempted to define the characteristics of a profession in 1915 as: 1)
intellectual operation as coupled with large individual responsibilities, 2) raw mate-
rials drawn from science and learning, 3) practical application, 4) an educationally
communicable technique, 5) tendency toward self-organisation and 6) increasingly
82
altruistic motivation.19 In other words, if we were to apply this to the practice of

paramedicine, we would say that the raw material of paramedicine comes primarily
from scientific data collected and applied in other health disciplines such as nursing
and medicine. There is by necessity a requirement to understand anatomy, physiol-
ogy and pharmacology and a need for the paramedic to supplement and add to this
knowledge with data collected from the field that are unique to paramedic practice.
The practical application of paramedicine is the emergency preservation of health,
the promotion of the maintenance of good health and transportation to secondary
care. There may be some debate as to whether paramedics act autonomously as they
commonly act under the guide of clinical protocols written by doctors (and clinical
practice committees); however, it could be argued that each paramedic makes clini-
cal decisions and determinations based on the individual cases they encounter and,
as such, are required to make independent intellectual decisions. There is certainly
no doubt that the practice of paramedicine requires a paramedic to accept and be
accountable for substantial individual responsibilities. There is a growing move
toward the body of paramedics increasing their organisational independence with
the establishment of a trans-national organising body, Paramedics Australasia. The
accreditation of paramedic education and the shift into the tertiary education
system are reflective of an educational communicable technique. Members are
largely undertaking the job, not for personal profit or status (as evidenced by wage
levels), but in response to community needs and this reflects an altruistic
motivation.
Others argue that the components of professionalism differ to those outlined by
Flexner. According to Greenwood20 the five key components of a profession are:
1 a systematic body of theory
2 authority
3 community sanctions
4 ethical codes
5 a culture.
Reynolds argues that an analysis of these five elements, when applied to the
development of Australian ambulance services, demonstrates that paramedicine is
moving toward professionalism.21 Sheather proposes that the movement of the
status of paramedicine toward professionalism is evidenced by the activities the
practice undertakes.22 For example, there has been an increasing complexity of
practice demands in the form of a move from the traditional load-and-go model
of ambulance transportation-only service to complex pre-hospital clinical care of
the patient. This is further supported by an association with the acquirement of
broader knowledge and the ability to think and operate independently and to
understand and resolve problems, thus allowing for autonomous decision making
with the acceptance of the associated responsibility, accountability and risk this
requires. These characteristics are encouraged by a shift towards university-based
education and the accreditation of paramedic curricula that allows for a stan-
dardised transfer of knowledge and skills. In addition, paramedicine has a clearly
83
delineated role that is not played by any other actor and, in this way, has estab-
lished monopolistic boundaries and a unique practice culture. There is a develop-
ing body of specifically paramedic-related knowledge acquired for a specific
practice benefit and there is professional organisation in the form of Paramedics
Australasia. There is an ongoing move to have paramedic practice regulated, par-
ticularly in light of the entry of new players in the market via private market
mechanisms.23 There is a gradually increasing political acceptance of paramedicine
as a profession, as evidenced by the contribution of paramedicine to relevant
policy development24 (although O’Meara argues this is in its infancy25); and para-
medics are likely to find increasing support from the community for the protection
of its jurisdiction. This is supported by the ongoing trust the public has in the
profession, in its altruism, knowledge, competence and good governance.26,27 These
activities provide evidence of the transition of paramedicine from purely a voca-
tion to a profession.
Can paramedics still be called to court to justify their actions?

Just because paramedics are not registered health professionals does not mean that
they are not held to account and required to deliver a legal standard of care to their
patients. If a paramedic fails to treat a patient to the requisite standard, there is a
possibility that they will be called to legal account for their actions (or omission to
act) in a number of ways, including civilly (negligence), criminally (manslaughter),
disciplinary (peer review) or via coronial inquiry (reportable death), parliamentary
inquiry or royal commission (service-wide governance). The legal standard of care
and associated legal requirements of paramedic practice will be discussed in more
detail in the following chapters.
In short, paramedics most often present to the coroner’s court to provide evidence
of what they found or what they did with regard to a patient who has died in a
way that has required an investigation by the coroner. There are relatively few cases
of paramedics being called to court on a charge of negligence and, therefore, there
is little in the way of evidence to suggest that paramedics should practice ‘defensive
medicine’ in an attempt to minimise their chance of being sued for medical
negligence.
What about professional disciplinary action against paramedics?

One of the key areas of concern with regard to paramedics NOT being registered
health practitioners is that, although they are still subject to tort laws and may
be found to have committed civil or criminal offences to which they must answer
in the formal courts, with regard to their professional conduct, paramedics are
subject to a different ‘peer’ review process to that of registered health profession-
als. For the 10 health professions that are registered with Australian Health Prac-
titioner Regulation Agency (AHPRA), there is one law that applies a nationally
consistent arrangement for the receipt of complaints and the management of
health, performance and conduct matters related to practitioners that is designed
to ensure the protection of the public.28 This includes a list of charges that increases
proportionally in relation to the seriousness of the offence charged. For example,
if a doctor, in the practice of their profession, were to demonstrate knowledge or
84
skill or exercise care that fell below the standard reasonably expected of a doctor,
then that doctor may be found to have engaged in unsatisfactory professional per-
formance. If, however, the doctor had engaged in any of the following:
(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) more than one instance of unprofessional conduct that, when
considered together, 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
(c) 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,29
they may be charged with professional misconduct, the most serious of the available
charges. The legislation authorises the Medical Tribunal to remove the doctor from
the register, in the interests of protecting public safety, if such a penalty is deter-
mined to be warranted by the tribunal. At the very heart of this legislation is a
concern for the public’s welfare and the public’s relationship with the health care
system. In hearing the matter, the Medical Tribunal is required to apply the same
legal principles of natural justice, due process and procedural fairness that a court
is required to apply but, further to that, the proceedings are transparent, the find-
ings are made publicly available and the practitioner who is the subject of the
proceedings has the right to appeal the decision to the Supreme Court. These
mechanisms provide safety both for the public and the practitioner. These mecha-
nisms are not currently available to all paramedics who may be subject to the same
charge because, as unregistered health practitioners, they do not fall under the
jurisdiction of this law.
In addition, one of the criteria required for registration is that the applicant
establishes themselves as a ‘fit and proper’ person to practise in their profession. The
failure to meet this criterion can result in removal from the register under section
(c) of the professional misconduct criteria. Unregistered health practitioners have
no such criterion formally imposed on them. This may result in a practitioner who
has engaged in serious misconduct in one state, or with an ambulance service,
simply moving on to another.30 This is not possible with nationally registered health
practitioners because the register is available to be read by both prospective employ-
ers and the general public, and the register would note that the practitioner con-
victed of engaging in serious misconduct has either been struck off the register
altogether or has had restrictions placed on their practising certificate.
The way in which a determination is made as to whether a person is a ‘fit’ and
‘proper’ person to seek registration as a health practitioner is largely subjective and
the terms themselves have no precise meaning. It has been recognised by the court
that the elements require a consideration of the context of the conduct that the
person in question will be engaged in.31
85
With respect to health practitioners who are dealing on a daily basis with sick
and vulnerable people, in sometimes intimate ways, and over whom they have a
power advantage, the way in which the terms will be defined should rightly be strict.
Several legal cases have tried to establish the definitions and supporting contextual
explanations that would allow for the subjectivity of the terms to be limited. For
example, the New South Wales Supreme Court found that ‘fit’ (or ‘idoneus’) with
respect to an offıce is said to involve three things, honesty, knowledge and ability:
‘honesty to execute it truly, without malice affection or partiality; knowledge to
know what he ought duly to do; and ability as well in estate as in body…’.32
In the case in which disgraced former medical practitioner, Geoffrey Edelsten,
was attempting to be re-instated to the register, the court said:
[B]y contemplating that a person’s character may be a basis for refusal of registration
… [the legislation] suggests … that protection of the public, and thus the public
interest, extends to ensuring both the reality and the perception that the … profes-
sion is comprised of persons who are honest and trustworthy, and in whom the
public … [including other professionals] may therefore have confidence.33
There is much more that could be said about conduct, character and professional
registration. However, if paramedics wish to be viewed and recognised as healthcare
professionals, they do need to consider their character and whether they are a ‘fit
and proper person’ to undertake the paramedic role. An understanding of law and
ethics will complement the paramedic’s clinical skills and assist the paramedic to
conduct themselves in a professional way, thus avoiding any potential charge against
their character or conduct. If a paramedic practises competently, compassionately
and safely, not so as to avoid a charge of negligence or professional disciplinary
inquiry but because it is in the best interests of their patients to do so, this gives
the best evidence of the altruistic nature of their character.
Conclusion
Paramedics are moving toward being recognised as healthcare professionals. There
are a number of cases that will be discussed in subsequent chapters that outline how
the courts currently view the legal and professional status of paramedics.34 But, just
as nurses did twenty-odd years ago, paramedics will improve their professional status
via the avenues already addressed and, in so doing, they will increase their political
power to ensure that they have a hand in shaping domestic healthcare policy and, in
that way, assist in the design, development and delivery of a better health care system.
Review questions
1 List three main features of criminal law and three different features of civil
law.
2 List the two main ways in which laws are made in Australia.
3 What is the benefit of case law over statutory law?
4 Does Australia recognise human rights?
5 Why is an understanding of the legal system important for paramedics?
86
Appendix 5.1
Legislation that applies to paramedic practice
State Act Regulation
ACT Emergencies Act 2004 (part 4.1) Drugs of Dependence
Mental Health (Treatment and Care) Act 1994 Regulation 2005
Children and Young People Act 1999 Poisons Regulation 1933
Guardianship and Management of Property Act 1991 Poisons and Drugs Regulation
Human Rights Commission Act 2005 1993
Occupational Health and Safety Act 1989
Drugs of Dependence Act 1989
Poisons Act 1933
Poisons and Drugs Act 1978
Coroners Act 1997
Public Health Act 1997
Transplantation and Anatomy Act 1978 s23
Powers of Attorney Act 2006 (enduring attorney)
The Health Records (Privacy and Access)Act 1997
Discrimination Act 1991
NSW Health Services Act 1997 (Chapter 5) Health Services Amendment
Mental Health Act 2007 (Ambulance Service) Regulation
Children and Young Persons (Care and Protection) Act 2011
1998 Poisons and Therapeutic Goods
Guardianship Act 1987 s37 Regulation2002
Health Care Complaints Act 1993 Road Rules 2008 reg 306
Privacy and Personal Information Act 1998
Health Records and Information Privacy Act 2002
Poisons and Therapeutic Goods Act 1966
Coroners Act 1980
Public Health Act 1991
Anti Discrimination Act 1977
NT Mental Health and Related Services Act 1998 Poisons and Dangerous Drugs
Community Welfare Act 1983 Regulations 2004
Adult Guardianship Act 1988
Health and Community Services Complaints Act 1998
Occupational Health and Safety Poisons and Dangerous
Drugs Act 1984
Coroners Act 1993
Emergency Medical Operations Act 1973 ss2,3
Work Health Act 1986
Northern Territory Information Act 2002
Appendix 1 continued next page...
87
Appendix 5.1
Legislation that applies to paramedic practice continued...
NZ Wellington City and Suburban Districts Ambulance
Transport Service Act 1927 (no. 7) (as at 3 September
2007), Local Act
Emergencies Act 2004 (part 4.1)
Mental Health (Compulsory Assessment and Treatment)
Act 1992
Children, Young Persons and Their Families Act 1989
Guardianship Act 1961
Health Practitioners Competence Assurance Act 2003
Occupational Health and Safety Medicines Act 1981
Coroners Public Health Act
New Zealand Public Health and Disability Act 2000
Qld Ambulance Service Act 1991 Ambulance Service Regulation
Emergency Services Amendment Act 2002 2003
Public Health Act 2005 Health (Drug and Poisons)
Mental Health Act 2000 Regulation 1996
Guardianship and Administration Act 2000 Health Regulation 1996
Health Quality and Complaints Commission Act 2006
Workplace Health and Safety Act 1995
Health Act 1937
Coroners Act 1958
Aged Care Act Transplantation and Anatomy Act 1979
s20
Powers of Attorney Act 1998 (part 3)
SA Health Care Act 2008 (part 6) Health Care Regulations 2008
Whistleblowers Protection Act 1993 Controlled Substances (Poisons)
Mental Health Act 1993 Regulations 1996
Children’s Protection Act 1993 Controlled Substances
Guardianship and Administration Act 1993 (Prohibited Substances)
Health Care Complaints Act Regulations 2000
Occupational Health, Safety and Welfare Act 1986
Controlled Substances Act 1984
Coroners Act 1975
Consent to Medical Treatment and Palliative Care Act
1995 s13
Health and Community Services Complaints Act 2004
Drugs Act 1908
Equal Opportunity Act 1984
88
Appendix 5.1
Legislation that applies to paramedic practice continued...
Tas Ambulance Service Act 1982 Poisons Regulations 2002
Mental Health Act 1996
Child, Young Person’s and Their Families Act 1997
Guardianship and Administration Act 1995
Health Care Complaints Act 1995
Poisons Act 1971
Coroners Act 1995
Human Tissue Act 1985 s21
Personal Information and Protection Act 2004
Vic Ambulance Services Act 1986 Drugs, Poisons and Controlled
Mental Health Act 1986 Substances Regulations 1995
Children and Young Persons Act 1989
Guardianship and Administration Act 1986
Health Services (Concilliation and Review) Act 1987
Drugs, Poisons and Controlled Substances Act 1981
Coroners Act 1985
Public Health and Wellbeing Act 2010
Human Tissue Act 1982 s24
Medical Treatment Act 1988
Information Privacy Act 2000
Health Records Act 2001
Therapeutic Goods Act 1994
WA Mental Health Act 1996 Poisons Regulations 1965
Child Protection Act Guardianship and Administration
Act 1990
Health Services (Concilliation and Review) Act 1995
Poisons Act 1964
Coroners Act 1996
Human Tissue and Transplant Act 1982 s21
Freedom of Information Act 1992
89
Endnotes
1 Butt, P and Hamer, D (eds) (2011) Concise Australian Legal Dictionary, 4th edn.
Australia: Lexis Nexis.
2 Banks, R (2006) Australian Legal System. Hot Topics.. Online. Available:
http://www.legalanswers.sl.nsw.gov.au/hot_topics/pdf/aust_leg_syst_60.pdf (accessed
11 June 2012).
3 R v Kasian Wililo. Unreported, NSW Local Court, 20 January 2012.
4 See further details in Eburn, M and Townsend, R (2012) ‘Resignation now could
help O’Shane preserve a proud legacy’. Sydney Morning Herald, 8 February.
5 Parliament of Australia website. Online. Available: http://www.aph.gov.au/About_
Parliament/Senate/Powers_practice_n_procedures/Constitution (accessed 24 April
2012).
6 Baum, F (2008) The New Public Health, 3rd edn. Sydney: Oxford University Press.
7 Section 5(1)(a).
8 Health Services Amendment (Ambulance Service) Regulation 2011 (NSW) s11F.
9 Stewart,C, Kerridge, I and Parker, M (2008) The Australian Medico–Legal
Handbook. Sydney: Elsevier.
10 (1992) 175 CLR 1.
11 British Medical Association (2001) The Medical Profession and Human Rights:
Handbook for a Changing Agenda. London: Zed Books, p. 21.
12 Australian Legal Information Institute website. Online. Available: http://
www.austlii.edu.au (accessed 11 June 2012).
13 Eburn, M and Bendall, J (2010) The provision of ambulance services in Australia: a
legal argument for the national registration of paramedics. Journal of Emergency
Primary Health Care 8(4).
14 For further discussion see Eburn, M and Bendall, J (2010) The provision of
ambulance services in Australia: a legal argument for the national registration of
paramedics. Journal of Emergency Primary Health Care 8(4). Online. Available:
http://www.jephc.com/full_article.cfm?content_id=598 (accessed 10 November
2011).
15 The author would like to thank Dr Ramon Shaban for his contribution to this
section of the chapter.
16 Council of Australian Governments (2008) Intergovernmental Agreement for a
National Registration and Accreditation Scheme for the Health Professions.
Canberra: Commonwealth Government.
17 Australian Health Ministers’ Advisory Council (2011) National Registration and
Accreditation Scheme for the Health Professions – Project for the 2012 Health
Professions. Online. Available: http://www.nras2012.ahpra.gov.au/ (accessed 19
March 2011).
18 Cotton, A (2010) Blog: Health Minister’s ‘in principle’ support for paramedic
registration. Online. Available: http://www.acap.org.au/news-national/health-
ministers-in-principle-support-for-paramedic-registration/ (accessed 16 December
2010).
19 Flexner, A (1915) Is social work a profession? School and Society 1, p. 904.
20 Greenwood E (1984) Attributes of a profession. In: Faszard, B (ed), Self-actualization
for Nurses. Rockville, Maryland: Aspen, pp. 13–26.
90
21 Reynolds, L (2004) Is pre-hospital care really a profession? Journal of Emergency

Primary Health Care 2(1–2). See also O’Meara, P (2009) Paramedics marching
towards professionalism. Journal of Emergency Primary Health Care 7(1).
22 Sheather, R (2009) Challenges in paramedic practice: professionalization. In:
O’Meara, P and Grbich, C (eds) Paramedics in Australia: Contemporary Challenges
of Practice. Sydney: Pearson.
23 Paramedics Australasia (2011) The forgotten health profession. September 2011.
Online. Available: http://www.paramedics.org.au/featured/home-featured/the-
forgotten-health-profession-3/ (accessed 6 February 2012).
24 See, for example, Australian College of Ambulance Professionals (2008) Meeting the
Challenge Submission on National Health Care Reform to the National Health and
Hospitals Reform Commission. Ballarat.
25 O’Meara, P (2009) Paramedics marching towards professionalism. Journal of
Emergency Primary Health Care 7(1).
26 The Age (2011) ‘Australia’s most trusted professions’. 22 June 2011. Online.
Available: http://www.theage.com.au/national/australias-most-trusted-sex-workers-
trump-pollies-in-public-confidence-stakes-20110622-1ge82.html (accessed 3
November 2011).
27 Reader’s Digest (2011) ‘Why we trust our ambos’. Online. Available:
http://www.readersdigest.com.au/why-we–trust-our-ambos (accessed 11 June 2012).
28 Health Practitioner Regulation National Law Bill 2009 Explanatory Notes, p 5.
29 Health Practitioner National Law Act 2009 s5.
30 Australian Health Ministers’ Advisory Council (2011) Consultation paper: options
for regulation of unregistered health practitioners. February 2011. Online. Available:
http://www.ahmac.gov.au/cms_documents/Consultation%20Paper%20-%20
Options%20for%20Regulation%20of%20Unregistered%20Health%20
Practitioners.pdf (accessed 11 June 2012).
31 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 380.
32 Hughes & Vale Pty Ltd v New South Wales (No 2) (1955) 93 CLR 127, Dixon CJ,
McTiernan and Webb JJ decided (at 156).
33 Edelsten v Medical Practitioners Board (Vic) [2000] VSC 565 at [36].
34 See, for example, Ambulance Service of NSW v Worley [2006] NSWCA 102 and
Lithgow Council v Jackson [2011] HCA 36 (28 September 2011).
The author would like to thank Dr Michael Eburn for his feedback on this chapter.
91
Chapter 6
Consent and refusal of treatment
Bronwyn Betts
Learning objectives
• Identify the elements of a valid consent
• Explain the circumstances in which consent to treatment is not required
• Discuss the law relating to the refusal of treatment
• Identify situations whereby a substitute decision maker may provide consent or
refuse health care for another
• Discuss the law relating to consent and children
Definitions
Adult A person who has reached full legal capacity – 18 years of age in Australia
and 20 in New Zealand.
Assault Unlawful touching of a person without consent giving rise to criminal
charges and prosecution.
Attorney A person who has been appointed by another to make decisions for, and
on their behalf, at a time when they are no longer capable of making decisions.
Capacity The ability to understand the nature, purpose and consequences of
a decision.
Child A child or minor (see below) is a person who has not yet reached the age of
majority; however, the definition of a ‘child’ for the purposes of providing consent
for medical treatment may vary between jurisdictions.
Competence Used interchangeably with capacity. A person who is deemed to have
the capacity to make decisions about a matter is deemed to be competent.
Guardian A person appointed, usually by a court or tribunal, to make decisions on
behalf of another who has impaired decision-making capacity.
In loco parentis In place of a parent.
Minor A person who has not yet reached the age of majority – 18 years in Australia
and 20 in New Zealand.
Parens patriae The jurisdiction of the court to intervene and make decisions to
ensure the welfare of those who are vulnerable and unable to care for themselves.
Substitute decision maker A person appointed to make decisions for and on behalf
of another with impaired decision-making capacity.
Trespass Tort of trespass. Touching a person without his/her consent, or a threat
or conduct that creates an apprehension that the said conduct will occur.
92
6 Consent and refusal of treatment
A paramedic arrives on scene to find a 50-year-old male patient experiencing
severe chest pain. The paramedic determines that they should use a glyceryl
trinitrate (GTN) spray, which will lower the patient’s blood pressure and reduce
the strain on the heart.
However, before administering this drug, the paramedic realises that she should
the previous 24 hours for, if he had, the GTN spray may drop the patient’s blood
pressure to a dangerously low level.
The paramedic decides not to enquire as she is embarrassed to ask. She is
also embarrassed to inform the patient that the administration of GTN can, in
these circumstances, pose a significant risk because of the sudden drop in
blood pressure.
The patient agrees to the administration of the GTN spray. Has the paramedic
obtained a valid consent for the administration of GTN spray?
This chapter will provide you with the means to determine the legal
responsibilities of the paramedic in cases such as this one.
Introduction
Patients have a right to make decisions about medical treatment, whether to accept
that which is recommended by their health provider, to reject it or to choose one
of a number of treatment options that may be available.1 This right of choice is
founded upon the ethical principle of autonomy and has been recognised by the
common law in numerous cases before courts and tribunals2 and enshrined in
several statutes.3
In New Zealand, the right to choose is strengthened by the Code of Health and
Disability Services Consumers’ Rights4, which provides:
Services may be provided to a consumer if that consumer makes an informed choice
and gives informed consent, except where any enactment, or the common law, or
any other provision of this Code provides otherwise.
The right to make decisions about medical treatment would logically extend to
include decisions about ambulance treatment and ambulance transportation to a
hospital or health facility. It is, therefore, essential that paramedics are cognisant of
the need to obtain consent before ambulance treatment is provided, the means by
which a patient may provide consent, the elements of a valid consent and the cir-
cumstances in which the law provides an exception to the requirement that consent
be obtained before treatment is administered.
93
This chapter will discuss the law relating to consent to ambulance treatment and
transportation, including the potential consequences for you as a paramedic if treat-
ment is provided without consent. Topics that will also be discussed include:
• consent and children
• consent from a substitute decision maker
• refusal of treatment and transport.
Consent
To consent is to agree.5 It is essential that the patient agrees to the treatment and
does so before it is provided. Consent can be provided in a number of different
ways. It can be in writing, provided verbally or implied by way of conduct or actions.
Irrespective of the form the consent takes, or the manner in which it is provided,
it is essential that the consent is valid, that is, it meets the legal requirements.
Paramedics, by the very nature of the work that they do, and the circumstances
in which paramedic services are required, will often encounter patients that are not
capable, due to their underlying physical or psychological condition, of providing
a valid consent to treatment and ambulance transportation.
The law recognises that these circumstances exist and provides, under a legislative
scheme in each jurisdiction, a means whereby another person, a substitute decision
maker, may be authorised to provide consent to treatment and transport on behalf
of the patient. In the event that there is no other person authorised to provide
consent on behalf of the patient, the law provides an exception to the requirement
of consent in circumstances where urgent and necessary treatment is required so as
to avoid a serious risk to the patient’s life, health or wellbeing.
Obtaining consent before treatment is administered is essential for two reasons.
Firstly, it respects the patient’s right to make their own decisions regarding health
care and, secondly, it protects the paramedic from a potential civil claim (trespass
to person) and/or criminal prosecution (assault).
Forms of consent
Consent can be provided in a number of ways. It can be provided orally, in writing
or implied by conduct or actions.
Implied consent
Implied consent is probably the most common form of consent provided for a range
of minor or routine investigations and treatments. The patient indicates, via an act
or some form of conduct, that they have no objection to the treatment or procedure
that has been proposed. For example, following a discussion about the need to check
a patient’s blood pressure, the patient may roll up their sleeve and hold out their
arm indicating they have no objection to the paramedic conducting this assessment.
This would amount to implied consent.
Implied consent is only intended to apply in circumstances where the procedure
is minor and where general knowledge of the procedure is commonplace. In
circumstances where the patient is not familiar with the procedure, or has not
undergone it previously, the paramedic is encouraged to obtain verbal consent.
94
The fact that the patient may have requested that the ambulance attend cannot
be taken to amount to implied consent to conduct an assessment or implement
treatment.6
Verbal consent
Verbal consent is probably the most common form of consent that paramedics
seek and obtain. Following a conversation with the patient during which the
paramedic provides information about the assessment’s findings and the recom-
mended treatment, the patient verbally agrees to that which the paramedic
recommends.
Written consent
Many healthcare agencies have standard consent forms in place that are used for
the purpose of obtaining a patient’s written consent for a specific procedure. Written
consent is usually sought and obtained in circumstances where the proposed pro-
cedure is invasive in nature, or where the treatment carries considerable risk. As a
general statement, and probably for practical reasons, obtaining a patient’s written
consent for treatment is not something that ambulance service providers require of
paramedics. There may, however, be some exceptions to this statement.7
Elements of a valid consent

There are four elements of consent, and each of the elements must be satisfied for
the consent to be deemed valid or lawful. The elements are:
1 The consent is voluntary.
2 The patient has been provided with sufficient information.
3 The consent covers the treatment that is to be provided.
4 The patient has the capacity to make the decision about the treatment.
Voluntary decision
When making decisions regarding treatment options, it is not uncommon for a
patient to look for advice and support from others, most commonly family members
and health providers. It is appropriate that this advice and support is provided;
however, the decision that the patient ultimately makes regarding treatment must
be their own, and not one that is made merely to appease another person.8
The decision regarding treatment options must also be based on accurate infor-
mation, not false or misleading details that may ultimately influence the patient’s
decision.9
If the paramedic is suspicious that a patient has not made a voluntary choice
about treatment options, and that they may have been unduly influenced by another
person, the paramedic should evaluate the situation and, when doing so, consider:
1) the strength of will of the patient and 2) the nature of the relationship that the
patient shares with the person that the paramedic suspects may be influencing the
patient to make a decision that may not be their own.10
The strength of will of a patient can be affected by factors such as pain, fatigue,
fear and grief. A patient exposed to these factors could easily be placed in a position
95
in which they are vulnerable, and in which it is possible that they could be overborne
by another. Paramedics should be alert to this possibility.
The relationship that the patient shares with the other person is relevant
insofar as it may be one in which influence is a common feature. This is particularly
pertinent in circumstances where there is a relationship that involves an element
of dominance between this person and the patient. In view of the limited time
that a paramedic will spend with a patient, it is unlikely that the paramedic will
be able to ascertain if dominance is a factor in the relationships the patient shares
with others. However, it is important to be mindful of this factor, particularly
when information is shared that indicates that strong religious and cultural beliefs
may exist.
Case 6.1, ‘Re T (Adult: Refusal of Medical Treatment)’, highlights these factors.11
Case 6.1
Re T (Adult: Refusal of Medical Treatment)
Miss T was admitted to hospital with right shoulder pain, chest pain and
shortness of breath. She was 20 years of age at the time and 34 weeks pregnant.
Four days prior to the hospital admission, Miss T had been involved in a road
traffic crash after which she had been medically assessed. Hospital admission was
not considered to be necessary at that time.
Miss T was diagnosed as suffering from pneumonia and treatment was
commenced. Her condition deteriorated rapidly. She was in severe pain, for which
she was receiving a narcotic analgesic, her breathing was laboured and she was
intermittently confused. Some hours later, Miss T went into labour. A decision
was made to deliver the baby by caesarean section. Miss T informed the midwife
and, shortly after, the doctor, that she did not wish to receive a blood transfusion
should one be considered necessary, but that the doctors could administer blood
substitutes. The doctor reassured Miss T that she would be unlikely to require a
blood transfusion following a caesarean section.
Miss T’s condition deteriorated further and a blood transfusion was considered
essential; however, it was withheld due to Miss T’s express refusal to consent to
the transfusion. Miss T’s partner and father sought assistance from the court and
a direction that the blood transfusion be administered on the basis that her
decision was not valid due to the undue influence of Miss T’s mother.
Miss T’s parents had separated when Miss T was 3 years old. Miss T’s mother
was a devout Jehovah’s Witness and her father was not. Miss T had spent most
of her childhood living with her mother; however, a custody order expressly
forbade Miss T being raised as a Jehovah’s Witness. When Miss T was 17 years
old, she moved to live with her paternal grandmother and then, at the age of
19 years, with her partner.
96
Case 6.1
Re T (Adult: Refusal of Medical Treatment) continued...
Miss T’s mother had spent time alone with Miss T during the hospital admission,
and it was immediately following these visitations that Miss T informed the
hospital staff of her wish regarding a blood transfusion.
The court took these factors into account, along with other factors such as: Miss
T’s vulnerable state evidenced by her severe pain, fluctuations in her state of
orientation and the effect of the narcotic analgesia; the relationship that Miss T
shared with her mother and her mother’s strong opposition to blood transfusions.
After reviewing each of these factors, the court concluded that the combined
effect resulted in Miss T reaching a decision that was not entirely her own.
Informed consent
A valid consent requires that the patient is provided with details regarding their
condition, the proposed treatment, the risks associated with the proposed treatment
and the alternative treatment options if they are available (consider again, Case 6.2).
Under the common law, a patient must be ‘informed in broad terms of the nature
of the procedure which is intended’.12
In New Zealand, the Code of Health and Disability Services Consumers’ Rights
provides that a ‘consumer’ has a ‘right to the information that a reasonable con-
sumer, in that consumer’s circumstances, needs to make an informed choice, or give
informed consent’.13
Case 6.2
A paramedic arrives on scene to find a 50-year-old male patient experiencing
severe chest pain. The paramedic determines that they should use a glyceryl
trinitrate (GTN) spray that will lower the patient’s blood pressure and reduce the
strain on the heart.
However, before administering this drug the paramedic realises that she should
the previous 24 hours for, if he had, the GTN spray may drop the patient’s blood
pressure to a dangerously low level.
The paramedic decides not to enquire as she is embarrassed to ask. She is
also embarrassed to inform the patient that the administration of GTN can, in
these circumstances, pose a significant risk because of the sudden drop in
blood pressure.
The patient agrees to the administration of the GTN spray. Has the paramedic
obtained a valid consent for the administration of GTN spray?
97
Consent covers the treatment

The requirement that the consent must ‘cover the act’ or ‘treatment’ essentially
means that the consent will only extend to, or relate to, the specific treatment that
has been discussed, and to which the patient has agreed. Some authors describe this
as ‘specificity’.14
In some cases, the paramedic may consider that the patient’s changing condition
necessitates the administration of additional treatment or procedures that were not
previously anticipated and not discussed with the patient. The scope of the original
consent will not extend to include these additional treatments unless it can be
demonstrated that they were provided out of necessity in order to protect the life
and health of the person, and it was not possible or practical to discuss the additional
procedures with the patient, and obtain their consent, before the procedures were
performed.15 See the discussion below in the section, ‘Emergencies’, regarding the
principle of necessity.
Capacity
A valid consent requires that the patient has the capacity to make the decision at
the time that the decision is made. Capacity is about understanding. A patient is
said to have the capacity to make a decision, and is legally competent, if they
understand the nature and effect of the decision.
The terms ‘capacity’ and ‘competence’ are often used interchangeably.16
A patient is said to lack the capacity to decide whether to consent or refuse treat-
ment if: the patient is unable to comprehend and retain information that is material
to the decision; and the person is unable to process that information and arrive at
a clear choice.17 See the section ‘Capacity’ below for a more detailed discussion of
the capacity to make decisions.
Circumstances where consent is not required

In very limited circumstances, a paramedic would be justified in providing treat-
ment to a patient without consent. These circumstances would include:
• an emergency situation
• a non-emergency where a patient lacks decision-making capacity and
requires treatment of some kind
• a situation where the law authorises prescribed treatment in very specific
circumstances.
While the circumstances may be limited, the frequency with which paramedics
may encounter a situation involving any one of these circumstances is high.
Emergencies
Paramedics are often required to attend a patient who is unable to provide
consent and whose condition is such that urgent and necessary treatment is
required. In these circumstances, the common law provides an exception to
the need for consent. McHugh, in Marion’s case, stated the exception in the
following terms18:
98
Consent is not necessary … where a surgical procedure or medical treatment

must be performed in an emergency and the patient does not have the capacity to
consent and no legally authorised representative is available to give consent on his
or her behalf.
This common law exception is referred to as either the ‘principle of necessity’ or
the ‘emergency principle’19, and would apply in the following circumstances:
• It is not practical to obtain consent (for example, the patient is
unconscious, confused or unable to communicate with the paramedic).
• There is no authorised person available to provide consent on behalf of
the patient.20
• Treatment is considered to be necessary to avoid a risk to the life, health
or wellbeing of the patient.
• The treatment provided is reasonable having regard for all the
circumstances.21
Most Australian jurisdictions have legislated to give effect to the common law
principle of necessity. This has been achieved through the various guardianship
regimes. The provisions in each jurisdiction differ slightly; however, for the most
part, they achieve the same objective, that is, to authorise the administration of
urgent treatment that is considered necessary to:
• save the patient’s life, or
• prevent serious damage to their health, or
• prevent significant pain or distress.
There is also some variation as to which health providers are authorised under
these various legislative provisions. In some jurisdictions, it is a medical or dental
practitioner or a person working under their supervision. In other jurisdictions,
terms such as ‘health provider’ or ‘health professional’ are used. Table 6.1 sets out
the legislation that operates in each jurisdiction, the circumstances in which urgent
treatment can be administered and the health provider authorised under the relevant
legislation to administer urgent treatment.
Non-emergencies
Other than in the context of an emergency, there are very limited circumstances
in which treatment or ambulance transport can be provided without consent.
Authorisation in these limited circumstances is provided under various statutory
provisions.
For example, the paramedic may be authorised under mental health legislation
to detain a patient and, thereafter, transport the patient to a health facility
for assessment. This authority, and the circumstances in which it would apply, is
discussed further in Chapter 10, ‘The mental health patient in the pre-hospital
emergency care setting’.
The guardianship legislation in each jurisdiction may also include provisions for
the administration of treatment, other than emergency treatment, to a person with
99
Table 6.1 Emergency provisions

Jurisdiction Act Section Treatment Provider
QLD Guardianship and s63 Adults Health care
Administration ‘Health care’ to meet provider defined
Act 2000 (Qld) imminent risk to adult’s as person who
life or health or prevent provides health
significant pain or distress care in practice
‘Health care’ defined as of a profession
care, treatment, services to or the ordinary
diagnose physical or mental course of
condition carried out by or business
under supervision of ‘health
provider’
NSW Guardianship Act s37 Adults Medical
1987 (NSW) ‘Medical or dental treatment’ practitioner
to save life, prevent serious Dentist
damage to health, prevent Person supervised
pain or distress by medical
Medical treatment includes practitioner or
medical, surgical procedure, dentist
operation or examination
normally carried out by or
under the supervision of a
medical practitioner including
prophylactic, palliative or
rehabilitation care
Children and s174(1)(2) Child or young person Medical
Young Persons Medical or dental treatment practitioner
(Care and to save life or prevent serious Dentist
Protection) Act damage to health
1998 (NSW)
VIC Guardianship and s43A Adults Medical
Administration ‘Medical or dental treatment’ practitioner
Act 1986 (Vic) to save life, prevent serious Dentist
rehabilitation care
100
Table 6.1 Emergency provisions continued...

Jurisdiction Act Section Treatment Provider
TAS Guardianship and s40 Adults and Children Medical
Administration ‘Medical or dental treatment’ practitioner
Act 1995 (Tas) to save life, prevent serious Dentist
rehabilitation care
SA Consent s13(1) Patient over 16 years Medical
to Medical Treatment to meet an practitioner
Treatment and imminent risk to life or health
Palliative Care
Act 1995 (SA)
WA Guardianship and s110ZI Adults Health
Administration ‘Urgent treatment’ to save professional
Act 1990 (WA) life, prevent serious damage defined as
to health, prevent pain or ‘a registered
distress practitioner or
Treatment includes medical, any other person
surgical and treatment, who practices
palliative care and other a discipline or
health care profession in
the health area
that involves the
application of a
body of learning’
NT Emergency s3(1) Adults and children Medical
Medical Surgical operation, practitioner
Operations Act anaesthetic or blood
(NT) transfusion to prevent death
or permanent disability
ACT Guardianship and s32N Adults Health
Management of Common law ‘right’ to professional
Property Act 1991 provide urgent medical defined as ‘doctor
(ACT) treatment without consent is or dentist’
preserved
101
impaired decision-making capacity. The authority provided in these circumstances

is restricted to the administration of treatment that is minor, uncontroversial and
necessary to promote the patient’s health and wellbeing.22
Refusal of treatment
Every adult person has the right to make choices about treatment, including the
right to reject the treatment that is recommended by the adult’s health provider,
even if that decision may result in the adult’s otherwise avoidable death.23 This right
of choice is not limited to decisions that others, such as a family member or the
attending paramedic, may regard as sensible or even rational.24
Patient-initiated refusal of ambulance treatment and/or transport to hospital is
a situation that paramedics encounter on a regular basis.25 The critical issue that
the paramedic must resolve is whether or not the patient’s decision to refuse
treatment and/or transport is valid. This necessarily requires that the paramedic
consider the requirements of a valid decision to refuse and to conduct a legal
assessment.26
If the patient has provided a valid refusal, the paramedic must respect the patient’s
wishes whereas, if the decision to refuse treatment and transport is not valid, the
paramedic must consider the patient’s immediate health and safety needs and imple-
ment a course of action to ensure that the patient’s life, health and wellbeing are
not compromised.27
Provided that the patient has sufficient decision-making capacity at the time the
decision to refuse treatment is made, the only other requirements of a valid decision
to refuse treatment are that the decision is made voluntarily and that it relates to
the situation that has arisen.11 Decision-making capacity will therefore be the central
issue in cases involving a patient-initiated refusal of treatment, and will be the focus
of the paramedic’s assessment.
In addition to the three requirements of a valid refusal, the paramedic is also
required to provide the patient with information that will assist the patient in their
decision making.28
Informed choice
A decision by a patient in a hospital or health agency to refuse medical treatment
is usually made within the context of a medical condition that the patient knows
to exist, or is made with a conscious objection to a particular form of treatment
that may be contrary to the patient’s religious or cultural beliefs.
However, a decision to refuse ambulance treatment is often made in circum-
stances in which the patient has no prior knowledge, awareness or insight into the
existence of an illness or injury and no understanding of their immediate health
needs and the potential consequences if those health needs are not addressed and
treatment is not provided.29
If the patient is to make a choice regarding whether or not to accept treatment,
and whether to accept the recommendation that paramedics transport them to
hospital for further assessment, it is only logical that the patient be provided with
information so they can make this choice.30
102
In the case of Brightwater Care Group (Inc) v Rossiter28, Martin expressed the view
that ‘full information as to the consequences of any decision should be provided in
circumstances where it is “perfectly feasible” to do so’.31
This requirement is reinforced in New Zealand by the Code of Health and
Disability Services Consumers’ Rights, which relevantly provides that a consumer
has a ‘right to the information that a reasonable consumer, in that consumer’s
circumstances, needs to make an informed choice …’.32
The information that a paramedic should provide to a patient, where it is practical
to do so, should include: details of the clinical assessment and likely diagnosis; the
treatment that the paramedic recommends; transportation to hospital for further
assessment, if indicated, and the possible risks associated with the condition if the
recommended treatment is not provided or medical supervision at a hospital or
health agency is not accessed.
Voluntary decision
See the discussion in the section ‘Voluntary decision’ above.
Specific to the situation

The refusal must be clear and unambiguous and must relate to the current circum-
stances. A refusal that is ambiguous is one in which the patient may make a broad
statement regarding treatment, but fail to stipulate exactly what they are willing to
accept and what they are refusing. For example, if you were discussing resuscitation
with the patient and the patient said, ‘Do what you think is best but nothing heroic’,
this would leave the paramedic in some doubt as to the extent of the intervention
refused by the patient.33
The paramedic should clarify with the patient the precise treatment they are
choosing to reject, for it is possible that the patient may choose to consent to some
procedures but not to others. Or they may choose to consent to treatment, but not
consent to transportation to a health facility, or vice versa.
Once it has been ascertained exactly what the patient is refusing, the paramedic
should confirm with the patient whether or not they intend that their decision
(to refuse treatment) is to apply in changed circumstances, that is, if the patient’s
condition were to rapidly deteriorate (as an example, see Case 6.3).34 However, if
the patient’s condition does rapidly deteriorate and no clarification as to consent
or refusal to treat has been determined, the paramedic may act under the doctrine
of necessity.
It is possible that the patient may have completed an advance health directive
in which they have specified exactly what treatment or procedures they do not
wish to receive. For a more detailed discussion regarding advance health directives,
and the operation of these documents in these circumstances, see Chapter 8,
‘End-of-life care’.
Capacity
The question of decision-making capacity becomes a central issue in circumstances
where a patient suffering from a condition that has the potential to cause some
degree of cognitive impairment refuses ambulance treatment.
103
Case 6.3
blood cells, which should help stabilise the patient. However, the patient informed
the paramedic before falling unconscious that she was a Jehovah’s Witness and
did not want to be given a blood transfusion.
Did the paramedic determine the scope of the patient’s refusal and whether or not
she intended her decision (to refuse a blood transfusion) to apply in these changed
circumstances?
While the test to determine decision-making capacity is a legal test, the assess-
ment of capacity is one that is frequently, and necessarily, carried out by paramedics
and other health providers in their respective practice settings.35
Presumption of capacity
The starting point when considering issues of capacity is the presumption, at law,
that every adult has the capacity to make decisions, unless it can be shown that this
presumption is rebutted, that is, that the patient does not sufficiently understand
matters relating to the decision at hand.36
Factors that can reduce capacity

The next step is to identify if the patient is suffering from a condition that has the
potential to reduce decision-making capacity. A patient may be permanently
deprived of capacity as a consequence of a chronic and debilitating illness, a severe
intellectual disability or as a result of a serious brain injury. Capacity may also be
deprived on a temporary basis by such factors as: alcohol intoxication; effects of
drugs and other substances; hypoxia; confusion; fatigue; severe pain; or other mani-
festations of an acute illness or traumatic injury.37 It is important that the paramedic
is aware of the conditions and circumstances that could reduce capacity; however,
the mere presence of one or more of these conditions does not, of itself, mean that
the patient lacks capacity. The paramedic must assess if the patient understands the
nature and effect of their decision.
Assessment of capacity
The common law test to assess capacity was formulated in the English case of Re C
(Case 6.4).38 The original test involved three steps:
104
Case 6.4
Re C (Adult: Refusal of medical treatment)
Mr C was 68 years of age and suffered from paranoid schizophrenia. He was also
delusional and thought that he was a doctor. The diagnosis of schizophrenia was
made at a time when Mr C was serving a prison term for attempted murder. He
was subsequently transferred to a secure psychiatric facility where he remained
for several years.
While an inpatient in the secure facility, Mr C developed a gangrenous leg ulcer
on his right lower leg. He was advised that the only effective treatment would
be a below knee amputation, without which he would most certainly die. Mr C
refused to give consent for a below knee amputation but consented to other
forms of conservative treatment including antibiotics and surgical debridement of
the wound.
It was evident that Mr C’s general capacity was impaired by his chronic mental
illness; however, the issue the court was required to resolve was whether Mr C’s
schizophrenia and delusional state had rendered him incapable of making a
decision regarding treatment for his gangrenous leg. That is, did Mr C understand
the nature, purpose and effect of the treatment (below knee amputation) and the
consequences of refusing that treatment?
The court applied the three stage test (referred to above) to analyse Mr C’s
decision-making process and found that Mr C:
1 did understand and retain the treatment information
2 that he believed it
3 that he had weighed up the risks and benefits and arrived at a clear choice
with respect to the treatment he wished to receive, and that which he
did not.39
1 The patient is able to take in, retain and comprehend the treatment
information.
2 The patient believes the information.
3 The patient is able to weigh up the risks and benefits of the treatment
and arrive at a clear choice.39
Assessing a patient’s ability to retain and understand treatment information could
possibly be achieved by asking the patient to repeat, using their own words, what
they understand the treatment information to mean. If the patient is cooperative
and willing to provide an answer, this will make it easier for the paramedic to assess
this first step.
Assessing to determine if a patient believes the treatment information could be
achieved by asking the patient to express, using their own words, what they think
could be wrong (with their health) and how they think it should be addressed.40
105
Assessing a patient’s ability to weigh up the risks and benefits in order to arrive
at a clear choice may be achieved by exploring with the patient the factors that they
considered when making their decision, and what may have influenced them to
arrive at the decision they did. It must, however, be stated that the reason a patient
makes a decision is only relevant in so far that it may demonstrate that the patient
was able to weigh up information and arrive at a choice. The fact that the paramedic
may not agree with that choice, or considers the patient’s choice and reasons for
making the choice to be illogical or irrational, is not relevant.41
Sufficient understanding
Capacity is assessed in the context of the decision that is to be made. It is
possible for a patient to have capacity to make some decisions, yet lack decision-
making capacity in respect of another decision.42 The seriousness of the decision,
and the gravity of the risk involved, dictates the level of understanding that
is required.
… the [health provider] should consider whether at the time [the patient] had a
capacity which was commensurate with the gravity of the decision which he pur-
ported to make. The more serious the decision, the greater the capacity required.43
This issue has been the subject of considerable debate.44 Some commentators
view capacity as a yes/no proposition and have interpreted this statement to mean
that a greater degree of scrutiny is required by the health provider to determine
whether the patient has capacity when the decision is a serious one.45 The alternative
view is that capacity is measured along a sliding scale and, in circumstances where
the decision is serious, the patient requires a greater level of understanding of the
nature and effect of their decision.46
In circumstances where the patient is making a decision that may have grave
consequences, the paramedic should take great care to assess the patient’s decision-
making capacity and seek advice if they are concerned that the patient may not
understand the nature and effect of the decision that is being made.47
Outcome of the assessment

Option 1: Valid decision Where the paramedic has provided the patient
with information relevant to their condition, proposed treatment and risks,
and thereafter considers that the patient’s decision to refuse treatment and/
or transport is valid, that is:
• the patient has made a voluntary decision
• the patient’s decision relates to what is recommended, and is intended
to apply in the current circumstances
• the patient has decision-making capacity commensurate with the
decision being made,
the paramedic must respect the patient’s decision, irrespective of whether or not
they agree with it.
This requirement was articulated by the Queensland State Coroner in the
following statement:
106
In this case I consider the officers reasonably concluded that [the patient] had the
capacity to understand the nature of her condition and their advice to her; she was
therefore entitled to make an informed decision to refuse further treatment.
Even though the ambulance officers did not agree with her, in the circumstances I
consider they had no authority to compel [the patient] to accompany them to
hospital.48
Option 2: Invalid decision Where the paramedic considers that the
patient’s decision to refuse treatment and/or transport is not valid, the
paramedic should seek immediate advice and explore options to ensure that
the patient’s life, health or safety is not compromised.
Tip: Take care to document The paramedic should ensure that the
ambulance record is completed and that it reflects all that took place.
Details should include:
• the assessment findings (both clinical findings and those conducted to
determine the validity of the decision to refuse)
• the paramedic’s interpretation of the assessment findings
• the information provided to the patient regarding condition,
treatment and possible risks (if treatment is not provided)
• the assessment of the patient’s decision-making capacity.
Case 6.5 illustrates these concepts.
Substitute decision making

In circumstances where a patient lacks the capacity to make decisions regarding
their health care, a substitute decision maker may be appointed, or authorised to
make decisions on behalf of the patient. The appointment and authorisation of a
substitute decision maker is achieved by way of legislation that has been enacted in
New Zealand and in each Australian state and territory.49
Case 6.5
Possible fall from a second level balcony
Paramedics are called to attend a 27-year-old man who was found lying
unconscious in a pool of blood on the concrete path under the balcony of his
second floor home unit. The caller also resided in the unit block and was well
known to the man. Before the paramedics arrived at the scene, the man regained
consciousness and staggered to his unit. With the assistance of the caller, the
paramedics located the man’s unit and were able to gain entry. They found the
patient lying on a bed and, when they announced their presence and enquired if
he was injured, the man demanded, in a very angry tone, that they leave his unit
immediately. The paramedics persisted and the man told them that he did not call
an ambulance and that he did not want or need an ambulance and that they
should leave.
107
The legislative scheme in each jurisdiction, often referred to as the guardianship

regime, creates a framework in which decisions for those with impaired decision-
making capacity can be made, either by the person appointed for this purpose, a
health provider responsible for the care and treatment of the patient (in limited
circumstances) or through a direction issued by the patient at an earlier time when
their decision-making capacity was intact.
There is some uniformity between the guardianship regimes that operate in each
jurisdiction; however, there is a lack of consistency with respect to the terminology
that is used when referring to various aspects of each scheme, including the names
that are used when referring to a substitute decision maker in each jurisdiction.
Paramedics will undoubtedly attend patients with impaired decision-making
capacity and in circumstances where a substitute decision maker has been appointed
to make decisions regarding health care for, and on behalf of, the patient. The
paramedic should therefore be aware of the following information as it relates to
the jurisdiction in which they practise:
• How a substitute decision maker may be appointed to make decisions for
a person with impaired decision-making capacity and the name of the
document used for this purpose.
• The term used to refer to a substitute decision maker.
• When the substitute decision maker’s authority to make decisions is
activated.
• What decisions the substitute decision maker is authorised to make on
behalf of the patient.
How is a substitute decision maker appointed?

There are three possible mechanisms by which a person may be appointed to make
health care decisions on behalf of another:
1 The appointment is made in advance, by the individual, at a time when
their decision-making capacity is intact.
2 The appointment is made by a court or tribunal.
3 A decision maker is authorised, under the relevant legislation, by default.
A person who has decision-making capacity can appoint in advance50 an indi-
vidual or a number of individuals, of their choosing, to make decisions regarding
their health care should the person lose, at some future time, the capacity to make
their own decisions.51
In three Australian jurisdictions (Queensland, Victoria and South Australia),
‘health care specific’ appointments can be made by an individual, that is, the sub-
stitute decision maker is appointed specifically to make decisions about health care,
and not decisions relating to other matters.52
In all other Australian jurisdictions (with the exception of the Northern Territory)
and in New Zealand, ‘general’ appointments can be made by an individual, that is,
the substitute decision maker is appointed to make decisions about a range of
matters that include decisions about health care for the individual. General appoint-
ments can also be made in Queensland, Victoria and South Australia.
108
In circumstances where a substitute decision maker has not been appointed in

advance, the legislation may identify a default decision maker.53 The default decision
maker is selected from a list of possible substitute decision makers, set out in order
of priority, who could be authorised to make health decisions for and on behalf of
a person with impaired decision-making capacity. The list includes, for example,
family members and those who share a close relationship with the person and have
an interest in their welfare.
In circumstances where a substitute decision maker has not been appointed or
authorised by one of the two mechanisms referred to above, an application can be
made to the relevant court or tribunal in each jurisdiction, seeking appointment of
a person as a substitute decision maker.54
It is likely that paramedics will encounter, in the pre-hospital setting, both sub-
stitute decision makers who have been appointed by the individual in advance, and
have been authorised to make health care decisions on their behalf at a time when
they are not capable of making decisions for themselves, and default substitute
decision makers.
Terms to describe a substitute decision maker

The term used to describe a substitute decision maker varies between each jurisdic-
tion and, in some jurisdictions, different terms may be used to describe substitute
decision makers appointed by different mechanisms. Terms used include: attorney,
statutory health attorney, enduring attorney, guardian, agent, medical agent, respon-
sible person and appropriate person.
When can a substitute decision maker make decisions for a patient?

The authority to make decisions about health care for and on behalf of another
person is not activated unless and until the person suffers from impaired decision-
making capacity. It is not uncommon for capacity to fluctuate, and it is the very
nature of the patient’s condition that may result in these fluctuations. In these
circumstances, the authority of the substitute decision maker to make decisions for,
and on behalf of, the patient will depend upon the patient’s decision-making capac-
ity at the relevant time.
What decisions can a substitute decision maker make?

In most jurisdictions, a substitute decision maker is able to make decisions to
consent and refuse health care for the patient. However, there are a number of
limitations with respect to decisions to refuse treatment and these limitations vary
as between jurisdiction. Table 6.2 sets out the various guardianship regimes in each
jurisdiction, the terms used to refer to a substitute decision maker in that jurisdic-
tion and the decisions that a substitute decision maker is authorised to make.55 Case
6.6 provides an example of a scenario you may encounter.
Consent and children

As with an adult patient, a paramedic is required to obtain consent before treatment
is administered to a child. An exception to this requirement would involve an
emergency situation in which it was not possible, or reasonably practical, to obtain
109
Table 6.2 Substitute decision makers

Jurisdiction Act Substitute Substitute Substitute Authorisation
decision decision decision (health specific
maker maker maker and general
(health (general) (default) substitute
specific) decision makers)
NZ Protection of – Enduring – Decisions relating
Personal and attorney to personal care and
Property Rights welfare
Act 1988 (NZ)
QLD Powers of ‘Attorney’ Consent and refusal
Attorney Act (Qld) under an of ‘health care’a
Advance Cannot consent for
Health ‘special health care’b
Directive
Enduring Statutory Personal matters
attorney health and health matters
attorney Cannot consent for
special health care
NSW Guardianship Act – Enduring Person Consent for medical
1987 (NSW) Guardian responsible and dental treatment
VIC Medical ‘Agent’ – – Consent and
Treatment Act under an refusal of ‘medical
1988 (Vic) Enduring treatment’c
Power of Cannot consent to
Attorney ‘special health care’d
(Medical Strict requirements
Treatment) regarding refusal
s5A Refusal of Treatment
Guardianship and Enduring Personal Certificate must be
Administration guardian representative completed
Act 1986 (Vic)
TAS Guardianship and Enduring Person Consent and refuse
Administration guardian responsible medical and dental
Act 1995 (Tas) treatment
Cannot consent for
‘special treatment’e
110
Table 6.2 Substitute decision makers continued...

Jurisdiction Act Substitute Substitute Substitute Authorisation
decision decision decision (health specific
maker maker maker and general
(health (general) (default) substitute
specific) decision makers)
SA Consent ‘Medical Consent and
to Medical Agent’ refusal of ‘medical
Treatment and under a treatment’f
Palliative Care Medical Cannot consent
Act 1995 (SA) Power of for ‘prescribed
Attorney treatment’g
Limits on refusal
Guardianship and – Enduring Appropriate Consent and refusal
Administration guardian authority of medical and
Act 1993 (SA) dental treatment,
except where a
‘medical agent’ is
available to act
WA Guardianship and – Enduring Person Consent and refusal
Administration guardian responsible of medical, surgical
Act 1990 (WA) and dental treatment
NT Adult – – – ‘Adult guardian’
Guardianship appointed by court
Act 2009 can consent and
(NT) refuse medical and
dental treatment
ACT Powers of – Enduring – Consent for medical
Attorney Act attorney treatment
2006 (ACT) – – Health
Guardianship and attorney
Management of
Property Act 1991
(ACT)
a
Means the care or treatment of, or a service or procedure to diagnose, maintain or treat … carried out by, or under the
supervision of a health provider. Does not include first aid treatment or non-intrusive examination made for diagnostic
purposes. Powers of Attorney Act (Qld), Sch 2 s11.
b
Includes: removal of tissue while alive for purposes of donation; sterilisation; termination of pregnancy; participation in
research; electroconvulsive therapy; and psychosurgery. Powers of Attorney Act (Qld), Sch 2 s7.
c
Means the carrying out of an operation or the administration of drugs or other medical procedure, but does not include
palliative care. Medical Treatment Act 1988 (Vic), s4.
d
Includes: sterilisation; termination of pregnancy; and removal of tissue to transplant into another. Guardianship and
Administration Act 1986 (Vic), s3.
e
Includes: treatment to render infertile; termination of pregnancy; and removal of non-regenerative tissue for purposes of
transplantation into another. Guardianship and Administration Act 1995 (Tas), s4.
f
Includes: treatment or procedure administered or carried out by a medical practitioner in the course of medical or surgical
practice, or dentist, in the course of dental practice, and includes the prescription or supply of drugs. Consent to Medical
Treatment and Palliative Care Act 1995 (SA), s4.
g
Includes sterilisation and termination of pregnancy. Guardianship and Administration Act 1993 (SA), s61.
111
Case 6.6
Daughter insists on hospital transport
Paramedics are called to attend an 85-year-old lady following a fall. The lady told
the paramedics that she stumbled when walking on the uneven floor tiles.
Following a thorough assessment, the paramedics could not identify any serious
injuries. However, they recommended to the lady that it would be prudent for her
to be assessed by a doctor and that they transport her to the local hospital for this
purpose. The lady declined. The paramedics had no reason to doubt the lady’s
decision-making capacity. The lady’s daughter was present and insisted that her
mother go to hospital. The daughter informed the paramedics that she had been
appointed as her mother’s enduring attorney and that they should comply with her
directions and transport her mother immediately.
consent from either the child or a person authorised to provide consent on

behalf of the child. See the discussion in the section, ‘Emergencies’, regarding the
emergency exception.
Questions that commonly arise when considering the topic of consent and
children include:
• What age is a person considered to be a child?
• Who is authorised to provide consent on behalf of a child?
• What if the child’s parent is not present at the time the paramedic
attends?
• Can a child provide consent for their own treatment?
• Can a child refuse treatment?
• Can a parent refuse treatment for their child?
• How is conflict between a parent and child (regarding treatment options)
resolved?
Who is a child?
The age of majority, or the age at which a person reaches full legal capacity, is 18
years in all Australian states and territories and 20 years in New Zealand. It is at
this age that a person is recognised as an adult. A person less than 18 years of age
in Australia, and less than 20 years of age in New Zealand, has not yet reached
majority. Terms that are used to refer to a person less than 18 and 20 years, respec-
tively, include child, minor and young person.56
Although a person attains full legal capacity at 18 and 20 years, respectively,
legislation in each jurisdiction may enable a person who is not yet an adult to make
certain decisions,57 or be deemed responsible for certain actions.58
Table 6.3 sets out the legislation that determines the age of majority in
each jurisdiction and the legislation that provides that a person can consent to
112
Table 6.3 Legislation – age of majority and capacity to consent
Jurisdiction Act Section Age of Capacity to consent Section Age Treatment
majority (other than age of
majority)
NZ Age of Majority Act 1970 s4 20 years Care of Children Act s36(1)(2) 16 years Donation of blood
2004 Medical, surgical, dental
treatment and procedures
QLD Law Reform Act 1995 s17 18 years – – – –
NSW Minors (Property and s9 18 years Minors (Property and s49(2) 14 years Medical and dental
Contracts) Act 1970 Contracts) Act 1970 treatment provided by,
or pursuant to directions
from, a medical or dental
practitioner
VIC Age of Majority Act 1993 s3 18 years – – – –
TAS Age of Majority Act 1993 s3 18 years – – – –

SA Age of Majority s3 18 years Consent to Medical s6 16 years Decisions about own
(Reduction) Act 1993 Treatment and Palliative See also: s3(a)(i) medical treatment –
Care Act 1975 s4 provided by doctor or dentist
WA Age of Majority Act 1972 s5 18 years – – – –

ACT Age of Majority Act 1974 s5 18 years – – – –
NT Age of Majority Act 1981 s4 18 years – – – –
113
health care from an age other than the age at which the person is deemed to be
an adult.
Who is authorised to provide consent on behalf of a child?

As a general statement, the parent of the child is legally authorised to provide
consent for treatment to be administered to the child, unless it has been established
that the child is sufficiently intelligent and can understand the nature and purpose
of the proposed treatment.59 See the discussion in the section, ‘What is the test to
determine if a child has capacity to consent to treatment?’ regarding a child who is
capable of providing consent.
Parental rights and obligations are founded in the common law and have
been enshrined in legislation in both Australia and New Zealand. In Australia,
the responsibilities of a parent with respect to their child are defined in the
Commonwealth Family Law Act and include, ‘all the duties, powers, responsibili-
ties and authority which, by law, parents have in relation to their children’.60
These responsibilities include the authority to make decisions regarding medical
treatment.61
In New Zealand, the responsibilities of a parent or guardian are defined in the
Care of Children Act and include, ‘all duties, powers, rights and responsibilities that
a parent has in relation to the upbringing of the child’.62 Defining a parent is not
as straightforward as it may seem. Family structures vary greatly and a family involv-
ing two biological parents and their children is just one of many such structures in
which children may be raised. In Australia, the Family Law Act does not define
‘parent’ but refers to a parent as a person who has, by law, parental responsibilities
for a child.63
For the purposes of providing consent to medical treatment, some jurisdictions
have defined parent to include any person who has parental responsibilities for the
child or young person.64 The authority to provide consent to medical treatment
includes one or both parents65 and, subject to the existence of a court order that
may stipulate otherwise, the authority exists irrespective of whether the parents are
married to each other, separated or divorced.66
Can someone other than the parents provide consent?

In the vast majority of cases in which a paramedic will attend a child, a parent will
be present and will be able to make decisions regarding treatment for their child.
However, in some cases, a paramedic may be required to attend a child who is not,
at the time of the attendance, in the care of their parent, and it is not possible or
reasonably practical to establish contact with the parent. Examples of possible cir-
cumstances in which this may occur include the following:
• The child is alone or in the company of other children and no parent or
adult is present. For example, the child may be playing in a suburban
park or riding a push bike along a bike path or road.
• The child is in the short-term and temporary care of another, such as a
casual baby sitter, family friend or older sibling.
• The child is in the regular daily care of another, such as a child care
worker, boarding school master or school principal.
114
• The child is in the long-term and permanent care of another person,

such as a grandparent or other family member, and the child’s parent has
little or no involvement in the provision of the care or direction
regarding how care will be provided.
• The child does not live at home, is emancipated from his or her parents
and may even be homeless.
If the situation involves an emergency, consent is not required for the administra-
tion of urgent and necessary treatment.67
If the situation does not involve an emergency, and the parent is not present and
cannot be contacted, and there is no other person available who can authorise treat-
ment for the child, it would be reasonable for the paramedic to provide all necessary
first aid which, in the opinion of the paramedic, is considered to be in the best
interests of the child and, thereafter, explore available options to ensure that the
child’s health and safety are not compromised.
If the child is in the short-term or temporary care of someone other than the
parent, and the parent cannot be contacted, this person would most likely be able
to provide consent for first aid and minor treatment – for example, the application
of a dressing to a small abrasion.68
If the child is in the care of another person on a regular day-to-day basis, and
the care that is provided is subject to the directions issued by the parent, the carer
would be authorised to act in accordance with those directions, which may also
include directions regarding the provision of medical treatment that may be required.
An example of a situation in which this may occur is where a child is in the care
of a school principal at a school the child is attending or master of a school board-
ing house in which the child is residing during the school term. The parent’s direc-
tions to the school principal or boarding house master may include directions
regarding the health care of the child, including a general consent for first aid and
medical treatment, in the event that it is required. It is unlikely that this general
consent would extend to include treatments or procedures that were not contem-
plated by the parent at the time the general consent was provided.69
In circumstances where the child is in the long-term care of someone other than
the parent or legal guardian, and the care is being provided on a permanent basis
without involvement from the parent, the carer is said to be in loco parentis to the
child or ‘in place of the parent’.70 A person in loco parentis may be a family member
who has assumed the responsibility for the care and upbringing of a child in cir-
cumstances where the parent is not able or willing to do so. In some jurisdictions,
a person in loco parentis will have the same responsibilities and authority as that of
the parent.71
Can a parent refuse to provide consent to treatment for their child?

A parent has the authority to provide consent, and to refuse consent, to treatment
for their child. This authority is linked to parental responsibility to care for the child
and, as such, the authority to refuse medical and other health care is not uncondi-
tional. When making decisions regarding treatment for their child, a parent must
at all times act in the best interests of the child.72
115
What constitutes ‘best interests’ is determined on a case-by-case basis. Courts

will consider all factors relevant to the child’s welfare; however, the dominant
consideration will be the child’s physical welfare. Best interests of a child in the
context of decisions regarding medical treatment and other health care would,
almost certainly, be that which achieves a state where the child is free from physi-
cal distress or discomfort, and where the child’s physiological or psychological
health is not at risk.73
The administration of treatment recommended by a health provider, which
could reverse a situation in which the child may suffer irreparable harm or perhaps
die, would most likely be deemed to be in the child’s best interest.74 There have
been a number of cases in both Australia and New Zealand where courts have
intervened, in their parens patriae (welfare) jurisdiction75, to override a parent’s
decision to refuse life-saving medical treatment for their child.76
What if the parent refuses to provide a paramedic with consent to urgent and
potentially life-saving treatment for their child? It is not possible or practical for a
paramedic to urgently refer such a case to a court or tribunal to override a parent’s
decisions that may not be in the child’s best interests.
Paramedics are often confronted with these time critical dilemmas. In New
Zealand and in each Australian jurisdiction, child protection legislation has been
enacted to safeguard the welfare of children and may be used in these circumstances,
where it is practical to do so.77 See Chapter 9, ‘An introduction to child protection
and mandatory reporting’, for a discussion regarding the child protection schemes
and how they operate.
If the situation is one in which the child’s condition is grave, and urgent life-
saving treatment is required, the paramedic may need to explore alternative options.
In the case of Gillick v West Norfold Area Health Authority (Gillick’s case)59, Lord
Templeton made the following statement, which may serve as a guide for paramed-
ics and other health providers confronted with these difficult and time critical
circumstances:
Where a doctor and parent disagree, the court can decide and is not slow to act.
I accept that if there is not time to obtain a decision from the court, a doctor may
safely carry out treatment in an emergency if the doctor believes the treatment to be
vital to the survival or health of an infant and notwithstanding the opposition of a
parent or the impossibility of alerting the parent before the treatment is carried out.
In such a case the doctor must have the courage of his convictions that the treatment
is necessary and urgent in the interests of the patient and the court will, if necessary,
approve after the event treatment which the court would have authorised in advance,
even if the treatment proves to be unsuccessful.78
Case 6.7 provides an example of time critical circumstances.
Can a child provide consent for their own treatment?

There is no set age at which all children are deemed capable of making decisions
about health care, including the decision to consent to treatment. Legislation in
South Australia, New South Wales and New Zealand each set an age at which a
child in those jurisdictions can provide consent to treatment. Table 6.3 sets out the
116
Case 6.7
Snake bite
Paramedics working in a rural coastal community are called to a local primary
school to attend a 10-year-old boy who was bitten on the leg by a brown snake.
The highly venomous brown snake is well known to the area, and there have been
several recent sightings of this particular snake in the school ground.
First aid treatment is applied immediately. The boy’s parents are notified and
provide instructions that the child is not to go to hospital, but to be kept quiet and
in a darkened room. They advise that they will collect him from school during the
afternoon and will take him to a herbalist who will be able to administer natural
therapies to counteract the snake venom. The paramedic speaks directly with the
parent and informs her that it is possible the brown snake was one of the highly
venomous species and, if this is the case, the appropriate antivenene must be
administered as a matter of urgency, otherwise the boy will die.
Are the parents of this 10-year-old boy acting in the child’s best interests?
What course of action should the paramedics take?
legislation in each jurisdiction indicating the age at which a child can consent to
treatment, and the type of treatment to which a child can consent.
In South Australia, a child is authorised to make decisions about medical and
dental treatment provided by either a doctor or dentist, and can do so from the age
of 16.79 In New South Wales, if a child aged 14 years or above provides consent,
that consent will be sufficient to defend a claim of assault or battery in relation to
the medical or dental treatment that was provided to the child.80 In New Zealand,
a child from the age of 16 can make decisions regarding medical, surgical and dental
treatment or procedures, and can also consent to the donation of blood.81
If a child marries, parental responsibility comes to an end and, thereafter, the
child can consent to treatment irrespective of their age.82
Under the common law in Australia and New Zealand,83 a child or young
person may have capacity to consent to treatment if the child is sufficiently
intelligent and has the ability to fully understand the nature and purpose of the
proposed treatment.84 This common law position is based on the 1986 decision of
the English House of Lords in the case of Gillick v Wisbech Area Health Authority
(Gillick’s case, Case 6.8)62, which was subsequently adopted by the High Court of
Australia in Secretary, Department of Health and Community Services v JWB and SMB
(‘Marion’s case’).85
What is the test to determine if a child has capacity to consent to treatment?

The test to determine if a young person has the capacity to consent to treatment is
the ‘Gillick test’ or the ‘mature minor test’. A young person is said to be ‘Gillick
competent’ if they demonstrate that they fully understand the nature and purpose
117
Case 6.8
Gillick’s case
The English Department of Health and Social Security issued guidelines regarding
family planning services to each of the area health authorities in England and
Wales. The guidelines addressed a range of matters relating to family planning
services, including the provision of services to people under the age of 16.86
While the guidelines recommended that people under 16 should be encouraged
to involve a parent when availing themselves of the family planning services,
it provided that a doctor could exercise his or her clinical judgement in each
case and determine if contraceptive advice, and a prescription for oral
contraception, should be provided without the knowledge or consent of
a parent of the young person.
Mrs Gillick, a mother of five young girls, sought an assurance from the area health
authority that contraceptive advice and treatment would not be provided to her
daughters without her consent. The health authority refused to provide Mrs Gillick
with an assurance that this would not occur. Mrs Gillick then commenced legal
action seeking a declaration from the court that the guidelines, and the practice
which it supported, was unlawful.
The House of Lords refused to grant the declaration that was sought, and held
that the guideline was lawful for reason that a child, under the age of 16, is
capable of providing consent to medical treatment, ‘if the child has sufficient
understanding and intelligence to enable him or her to understand fully what
is proposed’.87
of that which is proposed.88 The test focuses on the individual level of maturity and
intellect of the young person and whether they can understand fully the potential
seriousness of their condition and the consequences of the treatment options.
The nature of the decision to be made, and the circumstances in which it is made,
are relevant factors in determining Gillick competency. It is possible that a young
person may be capable of understanding a decision relating to a minor procedure,
yet is not capable of fully understanding one in which the clinical issues are complex
and the potential consequences are grave.89
The Gillick principle, and what is required to be assessed in order to determine
Gillick competency, is clear. The court or the health provider conducting the assess-
ment must be satisfied that the young person:
• is mature
• is intelligent
• fully understands the proposed treatment and consequences
• has a level of understanding commensurate with the seriousness of
decision.
118
What is less clear is the means by which this test is applied in the various clinical
settings in which young people are provided with health care.90 Factors that may
be helpful and should be considered include91:
• the age of the young person
• the young person’s level of maturity and intellect
• the nature of the young person’s condition and the seriousness of the
decision to be made
• the young person’s ability to take in, retain and comprehend fully the
treatment that is proposed
• the young person’s ability to understand the health and broader
consequences of the decision
• the young person’s psychological state at the time
• any medical or other health assessments that may be relevant.
Can a child refuse treatment?

The legislative schemes in both South Australia and New Zealand, which provide
authority for a young person to consent to health care before reaching full legal
capacity, also provide authority for a young person to refuse treatment. In the
remaining jurisdictions, the common law applies.
In South Australia, the Consent to Medical Treatment and Palliative Care Act
authorises a person over 16 years of age to ‘make decisions’ about medical and dental
treatment92, and a child less than 16 years of age to provide consent for medical
treatment, if the medical practitioner who is to administer the treatment, and one
other medical practitioner who is to examine the patient, opine that the patient is
capable of understanding the nature, consequences and risks of the treatment, and
the treatment that is to be administered is in the best interests of the child.93 In
relation to decisions made by a person over 16 years, there is nothing in the Act
that indicates a decision would be limited to only those decisions involving a
consent to treatment.
In New Zealand, the Care of Children Act provides that a ‘consent or refusal of
consent’ of a young person aged 16 or over, or a young person of any age if that
person is married or living in a de facto relationship, will have the same effect as if
the consent or refusal of consent was provided by a person of full age.94 In addition
to the provisions of the Care of Children Act, the New Zealand Bill of Rights Act95,
which applies to both adults and children in New Zealand, expressly states that
‘every person has a right to refuse to undergo medical treatment’.96
The remaining Australian jurisdictions rely upon the common law principles
enunciated in Gillick’s case to determine if a young person less than 18 years of age
has the capacity to make decisions regarding health care and medical treatment.
The Gillick principles would also apply to determine if a young person in New
Zealand, who is less than 16 years of age, had the capacity to make a decision to
refuse treatment.97
Gillick’s case focused on the capacity of a young person to consent to medical
treatment and did not specifically address the issue of a young person’s capacity to
make decisions to refuse medical treatment. Subsequent English decisions have
119
concluded that a Gillick competent young person cannot refuse treatment, if that
refusal is contrary to the wishes of the young person’s parent.98 This approach has
not been adopted in Australia.99
In Australia, a Gillick competent young person can refuse to consent to treat-
ment and can do so even if that decision is contrary to the wishes of their parent.
However, the young person’s decision to refuse must not be contrary to their own
best interest. A court, in its parens patriae jurisdiction, can intervene and override
the young person’s decision if it considers that the young person’s best interests
would be served by the administration of the treatment that is the subject of
the refusal.100
What if a Gillick competent young person refuses to consent to urgent and
potentially life-saving ambulance treatment and transportation to hospital? It is not
possible or practical for a paramedic to urgently refer such a case to a court or
tribunal to review the young person’s decision and determine if it is in their own
best interests. Paramedics are often confronted with these time critical dilemmas.
If there is any doubt as to the capacity of the young person to make a decision
about treatment, or doubt regarding the decision that has been made (in terms of
it being in their own best interests), the paramedic should seek immediate advice
and transport the young person to a hospital or health facility where these decisions
can be made, including the decision to refer the matter urgently to a court or tri-
bunal (see, for example, Case 6.9).101
Case 6.9
Fall from a horse
Paramedics are called to attend a 15-year-old girl following a fall from a horse.
The young girl had been riding with friends when her horse spooked, throwing her
to the ground. She suffered a compound fracture to her femur and is losing a
significant amount of blood from the open wound. When the paramedics arrive,
she is pale, clammy, hypotensive and in severe pain.
Her friends had been trying to contact her parents but neither of them were
answering their mobile phones.
The paramedics decided that the fractured limb needed to be splinted immediately
and that an intravenous infusion and pain relief were necessary. The young girl
refuses to allow the paramedics to splint her leg or provide any of the treatments
discussed. She has asked if they could take her home.
How would the paramedics determine if this 15-year-old is Gillick competent?
What factors may be relevant when turning their mind to the issue of Gillick
competence in this 15-year-old patient?
What lawful course of action is available to the paramedics in this case?
120
Conclusion
The ethical principle underpinning this area of the law is patient autonomy. A
patient has an autonomous right to make decisions that affect their own body, and
the laws relating to consent and refusal of health care, and that which facilitates
substitute decision making, protect and preserve this right.
The aim of this chapter was to introduce you to these areas of the law and to
provide guidelines that may assist you as you apply these laws in your everyday
practice.
It is not possible to create a checklist that can be readily applied by paramedics
in all cases. However, an understanding of the principles that underpin the law of
consent and refusal, coupled with the guidelines provided in this chapter, will assist
you to make appropriate decisions within a legal framework and, ultimately, act in
a manner that respects patient autonomy.
Review questions
1 What are the elements of a valid consent for treatment?
2 A person is presumed to have capacity to make decisions regarding health
care. How would a paramedic assess whether a patient has decision-making
capacity for a matter?
3 When can a substitute decision maker make health care decisions for, and
on behalf of, another?
4 Who is authorised by law to provide consent for a child?
5 What is the common law test to determine if a child is capable of providing
consent for treatment?
6 Can a parent refuse to provide consent for treatment?
7 In what circumstances would a court intervene and override a parent’s deci-
sion to refuse to provide consent for treatment for his or her child?
Endnotes
1 A person cannot demand that a form of treatment be provided, if the medical
practitioner is of the opinion that the treatment is not indicated and will offer
no benefit.
2 Schloendorff v The Society of New York Hospital 211 NY 125 (1914) 129–30;
Secretary, Department of Health and Community Services (NT) v JWB and SMB
(Marion’s Case) (1992) 175 CLR 218.
3 New Zealand Bill of Rights Act 1990; Code of Health and Disability Services
Consumers’ Rights; and guardianship legislation in each jurisdiction that protects
the right to make decisions in advance, and preserves the requirement that
treatment is provided in accordance with the patient’s wishes.
4 Code of Health and Disability Services Consumers’ Rights, Right 7(1), discussed
in Skegg, P (2006) Consent to treatment: introduction. In: Skegg, P and
Paterson, R (eds), Medical Law in New Zealand. Wellington: Thomson Brookers,
pp. 145–169; Manning, J (2002) Autonomy and the competent patient’s right to
121
refuse life-prolonging medical treatment – again. Journal of Law and Medicine 10,
239–247.
5 The term ‘consent’ is derived from the Latin consensere, meaning ‘to agree’.
6 Hart v Herron (1984) Aust Tors Reports 80–201, discussed in Forrester, K and
Griffiths, D (2010) Essentials of Law for Health Professionals, 3rd edn. Sydney:
Elsevier. The case involved a patient who presented to a psychiatric hospital seeking
information about deep sleep and electroconvulsive therapy, which the patient was
scheduled to undergo. The patient was in an agitated state and agreed to take
medication to ‘calm him down’. The deep sleep and electroconvulsive therapy
was then provided to him without his knowledge. The hospital argued that his
presentation to the facility for the purposes of the treatment was implied consent.
This court rejected this proposition.
7 For example, paramedics in Queensland are required to obtain written consent
from a patient prior to the administration of thrombolytic therapy. This is also the
case for paramedics employed by the Wellington Free Ambulance in New Zealand.
Written consent may also be required if the proposed treatment forms part of a
clinical trial.
8 Re T (Adult: Refusal of Medical Treatment) [1992] 4 All ER 649; Beausoleil v La
Communaute des Soeurs de la Charite de la Providence et al (Sisters of Charity) (1964)
53 DLR 65.
9 Appleton v Garrett (1997) 8 Med LR 75. Right 6(3) of the New Zealand Code of
Health and Disability Services Consumers’ Rights sets out providers’ obligations to
provide honest and accurate answers to questions relating to services, including a
recommendation from the provider, Right 6(3)(b).
10 These factors were considered by the court in Re T (Adult: Refusal of Medical
Treatment) [1992] 4 All ER 649. See below for a summary of the case.
11 Re T (Adult: Refusal of Medical Treatment) [1992] 4 All ER 649.
12 Chatterton v Gerson (1981) QB 432 at 443. Cited with approval in Rogers v
Whittaker (1992) 175 CLR 479, 490. In addition to the requirement that the
patient is informed in broad terms for the purposes of providing consent, a doctor
has a duty to inform a patient of any material or significant risk associated with the
treatment that is to be provided. A failure to do so may give rise to an action in
negligence in circumstances where the patient suffers harm.
13 Code of Health and Disability Services Consumers’ Rights, Right 6. For a detailed
analysis of this right, and what constitutes sufficient information to make an
‘informed choice’, see Skegg, P (2006) The duty to inform and legally effective
consent. In: Skegg, P and Paterson, R (eds), Medical Law in New Zealand.
Wellington: Thomson Brookers, pp. 105–253, 222–227.
14 See, for example, Steward, C, Kerridge, I and Parker, M (2008) The Australian
Medico–Legal Handbook. Sydney: Elsevier.
15 Murray v McMurchy [1949] 2 DLR 442; Walker v Bradley Unreported, District
Court of New South Wales, No. 1919/89, 22 December 1993.
16 Both terms are used to refer to the legal requirement that a person understands the
nature and effect of a particular decision. The case law dealing with matters relating
to this requirement in the context of a decision to consent or refuse medical
treatment predominately uses the term ‘capacity’. The term ‘capacity’ will be used in
this chapter.
17 Re MB (Medical Treatment) [1997] 2 FCR 426; Re B (Adult: Refusal of Medical
Treatment) [2002] 2 All ER 449.
122
18 Department of Health and Community Services (NT) v JWB (Marion’s Care) (1992)
175 CLR 218, 310.
19 Historically, the terms ‘necessity’ and ‘emergency’ have referred to different
circumstances in which it was appropriate to act without consent. In Re F (Mental
Patient: Sterilisation) [1990] 2 AC 1 at 75–77, Lord Goff differentiated between
the two terms in the following way: necessity applied to circumstances involving a
patient who lacked decision-making capacity on a permanent or semi-permanent
basis, and where treatment or care was necessary for the health and wellbeing of
the patient. Emergency, however, involved a situational crisis in which treatment
was necessary to preserve life. There does not appear to be any distinction drawn
between the two terms in Australia and both are used interchangeably to justify
treatment without consent in circumstances where it is necessary to act. See
Hunter and New England Area Health Services v A (2009) 74 NSWLR 88 [31–33].
See discussion in Richards, B (2010) General principles of consent to medical
treatment. In: White, B, McDonald, F and Willmott, L (eds), Health Law in
Australia. Sydney: Thomson Reuters, pp. 93–111, 109.
20 For example, a health attorney appointed or authorised under legislation. See the
section, ‘Substitute decision making’ in this chapter.
21 Rogers v Whitaker (1992) 175 CLR 479, 489; Hunter and New England Area Health
Service v A (2009) 74 NSWLR 88, [31].
22 In New South Wales, the Guardianship Act 1987 (NSW) s37(2); and Queensland,
the Guardianship and Administration Act 2000 (Qld) s64.
23 This right has been recognised in each of the major common law jurisdictions
including the United Kingdom, Canada, New Zealand and, most recently, in
Australia. See Re B (Adult: Refusal of Medical Treatment) [2002] 2 All ER 449;
Re C (Adult: Refusal of Medical Treatment) [1994] 1 All ER 819; Re T (Adult:
Refusal of Medical Treatment) [1992] 4 All ER 649; Malette v Schulman (1990)
67 DLR (4th) 321; Re G [1997] 2 NZLR 201; Auckland Area Health Board v A-G
(NZ) [1993] 1 NZLR 235; Hunter and New England Area Health Service v A
(2009) 74 NSWLR 88; Brightwater Care Group (Inc) v Rossiter (2009) 40 WAR 84;
Australian Capital Territory v JT (2009) 232 FLR 322; H Ltd v J (2010) 240 FLR
402. The right has also been strengthened in New Zealand by the Code of Health
and Disability Consumers Services Consumers’ Rights, Right 7(7), and the Bill of
Rights Act 1990 s11.
24 Re T (Adult: Refusal of Medical Treatment) [1992] 4 All ER 649, 653.
25 There is no publicly accessible data in Australia that identifies the frequency and
circumstances in which paramedics are required to manage a situation in which a
patient refuses ambulance treatment, although a number of ambulance service
providers collate this information. The Queensland State Coroner, in the 2007
inquest into the death of a patient who refused ambulance transport following
a road traffic crash, noted that ‘refusal of patients to accept treatment is an
issue ambulance officers must deal with frequently’; Inquest into the death
of Nola Jean Walker (unrep. Queensland Coroner’s Court, State Coroner Barnes
SM, 22 November 2007). Online. Available: http://www.courts.qld.gov.au/__data/
assets/pdf_file/0003/106347/cif-walker-nj-20071123.pdf (accessed 1 October
2011).
26 The test to determine the validity of a decision to refuse treatment is a test at law;
however, it is one that is necessarily carried out by health providers in a variety
of clinical settings. This factor was noted by Dame Butler-Sloss in the English case,
Re B (Adult: Refusal of Medical Treatment) [2022] All ER 449. See also, discussion
123
in Queensland Law Reform Commission (2010) A Review of Queensland’s

Guardianship Laws, Report No. 67, Brisbane, p. 300.
27 This is reflected in the New Zealand Code of Health and Disability Services
Consumers’ Services, Right 7(4), which provides ‘where a consumer is not
competent to make an informed choice and give informed consent, and no person
entitled to consent on behalf of the consumer is available, the provider may:
(a) provide services where it is in the best interests of the consumer and … ’.
28 Brightwater Care Group (Inc) v Rossiter (2009) 40 WAR 84.
29 Burstein, J (1999) Refusal of care in the prehospital setting. Topics in Emergency
Medicine, Advanced Emergency Medical Journal 21(1), pp. 38–42. Shah, M,
Brazarian, J, Mattingly, A, Davis, E and Scheinder, S (2004) Patients with head
injuries refusing emergency medical services transport. Brain Injury 18(8), pp.
765–773.
30 Some commentators advocate that the failure to provide information should not
vitiate an otherwise valid decision to refuse treatment, for reasons that it would be
inconsistent with established legal principles, that being, the right to make a choice
irrespective of the reasons. See discussions in: Ian Freckelton, I (2011) Patients’
decisions to die: the emerging Australian jurisprudence. Journal of Law and
Medicine 11, pp. 427–438; Willmott, L, White, B and Then, S (2010)
Withholding and withdrawing life-sustaining medical treatment. In: White, B,
McDonald, F and Willmott, L (eds), Health Law in Australia. Sydney: Thomson
Reuters, pp. 449–490; Willmott, L, White, B and Mathews, B (2010) Law,
autonomy and advance directives. Journal of Law and Medicine 18, pp. 366–389.
31 Brightwater Care Group (Inc) v Rossiter (2009) 40 WAR 84, [32–34]. The view held
by Martin was inconsistent with that expressed by McDougall in Hunter and New
England Area Health Service v A (2009) 74 NSWLR. The patient in the latter case
had provided an earlier advance directive and was no longer competent, whereas
the patient in the Brightwater case made a contemporaneous decision to reject
treatment and was still competent to make decisions at the time of the hearing.
Whether or not these distinguishing factors are relevant will ultimately be
determined when judicial clarification of the need for information is provided.
32 Code of Health and Disability Services Consumers’ Rights, Right 6.
33 W Healthcare NHS Trust v H [2005] 1 WLR 843, discussed in: Willmott, L,
White, B and Mathews, B (2010) Law, autonomy and advance directives. Journal
of Law and Medicine 18, pp. 366–389, 370.
34 Werth v Taylor 475 NW 2d 426 (1991). See also: Re T (Adult: Refusal of Medical
Treatment) 4 All ER 649. In this case, T was informed by the doctors that there
were alternatives to a blood transfusion and that these alternatives could be
administered if her condition was to change and a transfusion was warranted. This
information was not accurate. T’s condition deteriorated and, in the opinion of her
treating doctors, a blood transfusion was needed. T had not been required to
consider whether she would still refuse a blood transfusion in these changed
circumstances, for she incorrectly assumed that it would not be necessary.
35 See comments in endnote 25 above. Also, discussion in: Appelbaum, P (2007)
Assessment of patients’ competence to consent to treatment. New England Journal
of Medicine 357, p. 1834–1840.
36 Re MB (Medical Treatment) [1997] 2 FCR 426. The presumption of capacity is also
embodied in the New Zealand Code of Health and Disability Services Consumers’
Rights, Right 7(2).
124
37 Re B (Adult: Refusal of Medical Treatment) [2002] 2 All ER 449; Re T (Adult: Refusal

of Medical Treatment) [1992] 4 All ER 649.
38 Re C (Adult: Refusal of Medical Treatment) [1994] 1 All ER 819.
39 Re C (Adult: Refusal of Medical Treatment) [1994] 1 All ER 819, 822.
40 See discussion in: Steward, C, Kerridge, I and Parker, M (2008) The Australian
Medico–Legal Handbook. Sydney: Elsevier, p. 83. It is interesting to note,
however, that a number of recent decisions examining issues relevant to a
patient’s decision-making capacity do not refer to the requirement that the
patient believes the information regarding the nature, purpose and effect of the
proposed treatment.
41 Lord Donaldson MR in Re T (Adult: Refusal of Medical Treatment) 4 All ER 649,
653 stated: ‘the right of choice is not limited to decisions which others might
regard as sensible. It exists notwithstanding that the reasons for making the choice
are rational, irrational, unknown or even non-existent’.
42 This is reflected in the New Zealand Code of Health and Disability Services
Consumers’ Services, Right 7(3), which provides: ‘where a consumer has diminished
competence, that consumer retains the right to make informed choices and give
informed consent, to the extent appropriate to his or her level of competence’.
43 Re T (Adult: Refusal of Medical Treatment) [1992] 4 All ER 649, 641.
44 See Parker, M (2004) Judging capacity: paternalism and the risk-related standard.
Journal of Law and Medicine 11, pp. 482–491.
45 Devereux, J and Parker, M (2007) Competency issues for young persons and older
persons. In: Freckelton, I and Petersen, K (eds), Disputes and Dilemmas in Health
Law. Sydney: The Federation Press; Stewart, C and Biegler, P (2004) A primer on
the law of competence to refuse medical treatment. Australian Law Journal 78,
pp. 325–342; Parker, M (2004) Judging capacity: paternalism and the risk-related
standard. Journal of Law and Medicine 11, pp. 482–491, 487.
46 This view is consistent with that expressed by McDougall in the New South Wales
Supreme Court decision Hunter and New England Area Health Services v A (2009)
74 NSWLR 88, [24]. See also, discussion regarding the interpretation and
application of the New Zealand Code of Health and Disability Services Consumers’
Services, as it relates to Right 7 generally and Right 7(4) specifically, in: Greig, K
(2000) Informed Consent in the Code of Health and Disability Services
Consumers’ Rights. Presentation to the 8th Annual Medico–Legal Conference, 8
Feb 2000. Online. Available: http://www.hdc.org.nz/education/presentations/
informed-consent-in-the-code-of-health-and-disability-services-consumers’-rights
(accessed 24 September 2011).
47 In some jurisdictions, the ambulance service provider has issued procedural
guidelines to assist the paramedic assess decision-making capacity in the pre-
hospital setting. See, for example, the guidelines published by the Queensland
Ambulance Service. Online. Available: http://ambulance.qld.gov.au/medical/, p. 241
of 632 (accessed 17 May 2012).
48 Inquest into the death of Nola Jean Walker (unrep. Queensland Coroner’s Court,
State Coroner Barnes SM, 22 November 2007 at p. 17). Online. Available: http://
www.courts.qld.gov.au/__data/assets/pdf_file/0003/106347/cif-
walker-nj-20071123.pdf (accessed 1 October 2011). This finding also reflects the
High Court decision involving police officers in Stuart v Kirkland-Veenstra [2009]
15 HCA. Online. Available: http://www.austlii.edu.au/au/cases/cth/
HCA/2009/15.html (accessed 23 November 2011).
125
49 An excellent overview of this area of the law, as it relates to each of the Australian
jurisdictions, is provided in: White, B, Willmott, L and Then, S (2010) Adults
who lack capacity: substitute decision-making. In: White, B, McDonald, F and
Willmott, L (eds), Health Law in Australia. Sydney: Thomson Reuters, pp. 149–
207. And, in New Zealand: Skegg, P (2006) Capacity to consent to treatment. In:
Skegg, P and Paterson, R (eds), Medical Law in New Zealand. Wellington:
Thomson Brookers, pp. 171–202, 180–187.
50 The guardianship legislation in New Zealand, and in each Australian jurisdiction,
with the exception of the Northern Territory, provides for the advance appointment
of a substitute decision maker.
51 Generally, the individual appointed for this purpose is required to be an adult, and
required to have the capacity to make decisions.
52 In Queensland, this appointment is made under an ‘advance health directive’,
Powers of Attorney Act 1998 (Qld) s35 (1) (c), s36(3)–(5). In Victoria, the
appointment is made under an ‘enduring power of attorney (medical treatment)’,
Medical Treatment Act 1988 (Vic) s5A, s5B. In South Australia, the appointment is
made under a ‘medical powers of attorney’, Consent to Medical Treatment and
Palliative Care Act 1995 (SA) s8, s9.
53 The guardianship legislation in each Australian jurisdiction, with the exception of
the Northern Territory, provides for the authorisation of a substitute decision maker
by default. The guardianship legislation in New Zealand does not provide for a
substitute decision maker by default.
54 All jurisdictions make provision for the appointment of a substitute decision maker
by a court or tribunal.
55 See White, B, Willmott, L and Then, S (2010) Adults who lack capacity: substitute
decision-making. In: White, B, McDonald, F and Willmott, L (eds), Health Law in
Australia. Sydney: Thomson Reuters, pp. 149–207, 164–165. The authors have
provided a comprehensive table in which key legislative terms for each Australian
jurisdicion have been provided.
56 The terms child, minor and young person are used to describe a person who has
not yet attained the age of majority. See Chapter 9 and Appendix 1 for a list of the
terms used in each jurisdiction and the specific age groups to which each term
refers.
57 For example, the decision to consent to medical and dental treatment.
58 For example, the age at which a minor is deemed to be criminally responsible for
his or her actions.
59 Gillick v West Norfolk and Wisbech Area Health Authority [1987] AC 112.
60 Family Law Act 1975 (Cth) s61B.
175 CLR 218.
62 Care of Children Act 2004 (NZ) ss15, 17(1).
63 Family Law Act 1975 (Cth) s4, Div 2.
64 In South Australia, parent is defined to include a person in loco parentis to the child
(in place of the parent), Consent to Medical Treatment and Palliative Care Act 1995
(SA) s4. In Tasmania, parent includes a ‘guardian or a person acting in loco parentis’,
Guardianship Act 1995 (Tas) s3. In New Zealand, consent can be provided under
the Guardianship Act 1968 (NZ) s25(3)(b) by a person ‘acting in place of the
parent’, in circumstances where there is no guardian in New Zealand or no
126
guardian that is capable of giving consent. In New South Wales, a parent is defined
for the purposes of the Children and Young Persons (Care and Protection) Act 1998 as
one who has ‘parental responsibility for the child or young person’, s3.
65 In Australia, Family Law Act 1975 (Cth) s61C. In New Zealand, Care of Children
Act 2004 (NZ) s7(1) and Guardianship Act 1968 (NZ) s6, ‘the father and the
mother shall each be guardians’ (emphasis added).
66 Family Law Act 1975 (Cth) s61C (2).
175 CLR 218, 310.
68 This has not been the subject of judicial consideration. See opinion expressed by
Skene, L (2008) Law and Medical Practice: Rights, Duties, Claims and Defences,
3rd edn. Sydney: Lexis Nexis. At p. 122, the author opines that the basis upon
which a casual carer would have authority to provide consent in these limited
circumstances, is by virtue of the principle of necessity (discussed further in the
section ‘Emergencies’) and the need to act in the best interests of the child.
69 See discussion in: Queensland Law Reform Commission (1996) Consent to Health
Care of Young People, Report No. 51, Brisbane, p. 93.
70 In loco parentis is a Latin term that means ‘in place of the parent’. See Legal
Dictionary. Online. Available: http://www.legal-dictionary.org/legal-dictionary-i/
In-loco-parentis.asp (accessed 17 May 2012).
71 See endnote 64 above.
72 State of Queensland v B [2008] 2 Qd R 562; Minister for Health v AS (2004) 33
Fam LR 223; Re Heather [2003] NSWSC 532; Re J (an infant): B and B v Director
General of Social Welfare [1996] 2 NXLR 134; Department of Health and
Community Services (NT) v JWB (Marion’s Care) (1992) 175 CLR 218, 339–40.
73 Manning, J (2001) Parental refusal of life-prolonging medical treatment for
children: a report from New Zealand. Journal of Law and Medicine 8, pp.
263–285.
74 Minister for Health v AS (2004) 33 Fam LR 223. See also: Manning, J (2001)
Parental refusal of life-prolonging medical treatment for children: a report from
New Zealand. Journal of Law and Medicine 8, pp. 263–285. The author
summarises a number of cases in which courts have intervened and reversed a
parent’s decision to refuse treatment, and those in which the parental decision has
been upheld. For an excellent, and recent, summary of this area of the law, see:
Matthews, B (2010) Children and consent to medical treatment. In: White, B,
McDonald, F and Willmott, L (eds), Health Law in Australia. Sydney: Thomson
Reuters, pp. 113–147, 119–136.
75 Parens patriae jurisdiction relates to the authority of the court to intervene and
make decisions to ensure the welfare of those who are vulnerable and unable to care
for themselves. For example, children and persons with impaired decision-making
capacity.
76 Royal Alexandra Hospital for Children v J (2005) 33 Fam LR 448; Re J (an infant): B
and B v Director General of Social Welfare [1996] 2 NZLR 134.
77 There has been no judicial consideration of the use of child welfare legislation in
these circumstances. However, the intention of the legislative scheme in each
jurisdiction is to protect a child who may be exposed to harm, which would
certainly be the case if a parent was refusing, against advice, to consent to the
administration of urgent and life-saving first aid and medical treatment in the
pre-hospital setting.
127
78 Gillick v Wisbech Area Health Authority [1986] 1 AC 112, 200. This issue has not
been considered by an Australian court.
79 Consent to Medical Treatment and Palliative Care Act 1995 (SA) s6. See also:
s3(a)(i), s4, and s12(b)(i) and (ii), the latter of which provides that a child less
than 16 years may also consent to medical treatment if: the medical practitioner
who is to administer the treatment is of the opinion that the child is capable of
understanding the nature, consequences and risks of the treatment; the treatment is
in the best interest of the child and this opinion is supported by one other medical
practitioner who personally examines the child.
80 Minors (Property and Contracts) Act 1970 (NSW) s49 (2). See discussion in New
South Wales Law Reform Commission (2004) Minors’ Consent to Medical Treatment,
Issues Paper No. 24, pp. 30–36, 88–91. The purpose of the section is to provide
protection for medical and dental practitioners (from liability for assault and
battery) where the practitioner has acted with reasonable care and with the consent
of a person aged 14 years or older. The section does not provide that a person has
the capacity to make decisions regarding health care, from the time the person
reaches the age of 14 years.
81 Care of Children Act 2004 (NZ) s36(1).
82 Care of Children Act 2004 (NZ) s36(2), this also extends to children living in a de
facto relationship. See Bunny, L (1997) The capacity of competent minors to
consent to and refuse medical treatment. Journal of Law and Medicine 5, pp.
52–80, 57–58.
83 See commentary in: Skegg, P (2006) Capacity to consent to treatment. In: Skegg, P
and Paterson, R (eds), Medical Law in New Zealand. Wellington: Thomson
Brookers, pp. 171–203, 195. The author states that it is not entirely clear as to
whether the enactment of the Care of Children Act 2004, which does not expressly
preserve the common law, had the effect of distinguishing the common law capacity
to consent to medical treatment, of young people who are under 16 years of age.
The uncertainty in this regard arises from a number of ‘indecisive and conflicting
High Court (NZ) decisions’. Notwithstanding, the author opines that the better
view is that the New Zealand legislation has not extinguished the common law
rights and that a young person under 16, if deemed to have the requisite capacity,
can made decisions regarding health care.
84 The common law Gillick principle applies in each Australian jurisdiction in
relation to decisions made by a young person under the age of 18 and, in New
Zealand and South Australia, to decisions made by a young person under the
age of 16. In South Australia, the common law Gillick principle has been enshrined
in the Consent to Medical Treatment and Palliative Care Act 1995 (SA) s12(b)(i)
and (ii).
85 Secretary, Department of Health and Community Services (NT) v JWB and SMP
(1992) 175 CLR 218.
86 The age at which a young person in England could consent to medical treatment.
87 Gillick v Wisbech Area Health Authority [1986] 1 AC 112, 188–189.
88 A Gillick competent young person must demonstrate a level of understanding, in
relation to the proposed treatment, that is higher than that required of an adult in
similar circumstances.
89 Re Alex (2004) 31 Fam LR 503, discussed in Matthews, B (2010) Children and
consent to medical treatment. In: White, B, McDonald, F and Willmott, L (eds),
Health Law in Australia. Sydney: Thomson Reuters, pp. 113–147, 128–129.
128
90 See discussion in: New South Wales Law Reform Commission (2008) Young People
and Consent to Health Care, Report No. 119, Sydney, pp. 86–89.
91 See discussion in Matthews, B (2010) Children and consent to medical treatment.
In: White, B, McDonald, F and Willmott, L (eds), Health Law in Australia.
Sydney: Thomson Reuters, pp. 113–147, 139.
92 Consent to Medical Treatment and Palliative Care Act 1995 (SA) s6.
93 Consent to Medical Treatment and Palliative Care Act 1995 (SA) s12(b)(i) and (ii).
94 Care of Children Act 2004 (NZ) s36(1) and (2).
95 New Zealand Bill of Rights Act 1990 s11.
96 The right to refuse medical treatment is subject to limits that may be prescribed by
other laws. See s4, s5.
97 See comments in endnote 83 above.
98 Re R (A Minor) (Wardship: Medical Treatment) [1991] 3 WLR 59, this decision was
criticised by McHugh in Secretary, Department of Health and Community Services
(NT) v JWB and SMP (1992) 175 CLR 218, 316 where His Honour stated that it
was ‘inconsistent with Gillick’. See also: Re W (A Minor) (Medical Treatment: Court’s
Jurisdiction) [1992] 3 WLR 758. Commentators have criticised these decisions for
the reason that they fail to recognise the principle of autonomy that underpinned
Gillick’s case, and effectively preserved the right of a parent to consent to treatment
for their child until such time as the child reaches majority. See: Bunny, L (1997)
The capacity of competent minors to consent to and refuse medical treatment.
Journal of Law and Medicine 5, pp. 52–80, 70–71; Matthews, B (2010) Children
and consent to medical treatment. In: White, B, McDonald, F and Willmott, L
(eds), Health Law in Australia. Sydney: Thomson Reuters, pp. 113–147, 139–140.
99 See discussion in New South Wales Law Reform Commission (2008) Young People
and Consent to Health Care, Report No. 119, Sydney, pp. 83–89.
100 Minister for Health v AS (2004) 33 Fam LR 223.
101 While there had been no judicial consideration on this point, it is likely that the
administration of urgent first-aid treatment and the transportation of a child to a
safe place would be authorised under the common law principle of necessity.
129
Chapter 7
The tort of negligence,
standards of care and vicarious liability
Peter Jurkovsky
Learning objectives
• Understand how the law of negligence applies in a personal and professional
capacity
• Identify and apply the elements of negligence in a particular situation
• Have an awareness of the legal responsibilities of a paramedic in a personal
and professional capacity
• Apply the defences to negligence in a particular situation
• Effectively review key cases in negligence law as they relate to paramedic
practice and recognise their effect on future practice
Definitions
Common law The law developed by courts over the ages and applied in similar
cases to provide consistency and certainty in law making.
Defendant The party who responds to proceedings initiated by another
seeking relief.
Duty of care A requirement that a person act toward others in a manner that a
reasonable person in the circumstances would to avoid reasonably foreseeable
harm.
Legislation Also known as ‘statutory’ law, legislation is the law as promulgated by
the legislature or parliament.
Negligence The failure to exercise appropriate levels of care, which causes
reasonably foreseeable harm.
Plaintiff The party who initiates court proceedings seeking relief against another
party.
Precedent The common law system whereby previous analogous decisions are
used and applied to later cases to reach consistent conclusions.
Strict liability Where liability is not based on any form of culpability or fault but
only proof that the act in question occurred.
Tort A civil wrong or wrongful act.
Vicarious liability The liability imposed on one person or corporation for the
wrongful act of another on the basis of the legal relationship between them.
130
7 The tort of negligence, standards of care and vicarious liability
An Introductory case
Negligence
A paramedic has been called to the scene of a man who has had a fall and
suffered a non-life-threatening head injury that will require hospital treatment
for suturing of a wound. When the paramedic arrives the patient behaves
aggressively, appears intoxicated and refuses transport despite continued
requests. The patient then leaves the scene after the paramedic bandages his
head wound. He is later struck by a car and sustains significant injuries.
He sues the ambulance service for negligence on the basis that his treatment was
below the required standard in two areas: firstly, that he should have been
convinced to go to hospital and, secondly, that the bandage applied was not
adequately secured and slid down over his face which caused him to be struck by
the car.
This chapter will provide the reader with the means to determine the
responsibilities of a paramedic in cases such as this one.
Introduction
This chapter will explore the law of negligence by describing the key elements that
are required to establish negligence generally, review a number of relevant cases,
discuss a number of associated aspects of the law in this area and, finally, review
and analyse two specific Australian cases that offer excellent contextual applications
of negligence principles.
The law of negligence potentially plays a part in every aspect of an individual’s
personal and professional life. Most of us, fortunately, will not be exposed to the
law of negligence during our lives. Nevertheless, an awareness of the law remains
important, particularly when acting in a professional capacity, and an understanding
of the law from a broad personal perspective and a more detailed professional
standpoint will assist paramedics when practising.
What is a tort?
A tort is a civil wrong. It signifies an actionable, wrongful act, other than a breach
of contract, performed intentionally, negligently or in circumstances involving strict
liability, which affords a remedy in the form of damages to a person who has sus-
tained an injury as a result.1
There is significant overlap between many of the torts and the criminal law. The
difference between a crime and a tort is that the former is concerned with the pro-
tection of society and punishing the wrongdoer whereas the latter involves some
form of compensation for the harm done.2 Examples of this overlap include the
torts of assault, battery and false imprisonment.
The most widely applied tort is negligence.
131
What is negligence?
Negligence is based on foreseeability of risk and the reasonableness of a person’s
conduct in particular circumstances. The tort of negligence recognises that people
should take reasonable care and consideration of the foreseeable harm one person
may cause another in respect to their relationship to them. For example, it is rea-
sonable that a patient would consider that the paramedic would take reasonable
care when treating the patient so as to avoid harming the patient.
The elements of what might constitute negligence are well defined as they were
formulated through common law principles over the past century. These principles
are now embedded in legislation in all states and territories, which operates in
conjunction with the common law.
In order for an action in negligence to succeed, the person bringing the case,
the plaintiff, must essentially prove, on the balance of probabilities: that a duty of
care was owed by the defendant; that the duty has been breached because it
fell below the required standard; that, as a result of this breach of duty, a harm
was caused that was reasonably foreseeable and was not too remote to allow for a
recovery of damages.
To summarise the requirements to uphold a negligence claim, a party must:
• Establish a duty of care (Duty).
• Prove a breach of duty of care (by proving that care given fell below the
reasonable standard).
• Demonstrate that the breach resulted in physical, emotional or pecuniary
loss (Damage).
• Establish that the harm caused was not too remote from the breach and
that there is a causal link between the act and the injury (Causation).
These terms will be discussed in more detail below.
Although negligence laws have emanated from hundreds of years of common law
evolution, with more rapid development during the past century, the most signifi-
cant reforms took place in the early 2000s when a crisis in the area of professional
liability insurance saw the implementation of various reforms to stabilise the law
and fundamentally cap the amount of damages available to successful litigants.
These reforms came about after an extensive review of the laws of negligence
through the Review of the Law of Negligence Report (The Ipp Report)3 in 2002.
The main reforms as they relate to negligence laws include:
• the imposition of caps on damages for personal injury claims
• stricter rules around defences
• modification of the tests for standard of care for professionals
• waivers of liability in relation to recreational activities.
These reforms effectively mean that an action in negligence is more difficult to
bring than it was prior to the introduction of these laws. Table 7.1 lists the respec-
tive laws in each state and territory.
The various legislative enactments around negligence also operate in conjunction
with the common law, where the laws state that, ‘except as provided by this Part,
this Part is not intended to affect the common law’4, meaning that express areas in
132
Table 7.1 Legislation incorporating negligence in all states and territories

Australian Capital Territory Civil Law (Wrongs) Act 2002
New South Wales Civil Liability Act 2002
Tasmania Civil Liability Act 2002
Victoria Wrongs Act 1958
South Australia Civil Liability Act 1936
Queensland Civil Liability Act 2003
Western Australia Civil Liability Act 2002
Northern Territory Personal Injuries Act 2003
the legislation state the relevant laws while still allowing the courts to apply prec-
edent from earlier negligence cases where the statutory law is unclear or silent.
What is a duty of care?

A duty of care is owed in circumstances where there is a foreseeable risk of harm
to others. The duty of care operates to define the scope and substance of negligence
law. It addresses the major questions of what it is that we regard as behaviour for
which a plaintiff should be compensated.5
The modern requirements to establish a duty of care are founded in Donoghue v
Stevenson6, which describes the case in which Mrs May Donoghue drank a bottle
of ginger beer at the Wellmeadow café in Scotland in 1928. The manufacturer of
the drink was Mr Stevenson.
Mrs Donoghue suffered severe gastroenteritis and nervous shock as a result of
ingesting a decomposed snail that was concealed in the bottle. As the law stood at
the time, she had no direct relationship with the manufacturer in a contractual or
tort sense. The direct contractual relationship, which would normally establish the
duty of care, was between the manufacturer and the retailer and would not have
included a duty to the consumer, in this case Mrs Donoghue.
Her case wound its way through the court system until it finally rested with Lord
Atkin’s judgement in the English House of Lords in 1932. To establish this missing
link in negligence law, Lord Atkin drew on biblical propositions that neighbours
have a responsibility to each other. He said:
Who, then, in law is my neighbour? The answer seems to be – persons who are so
closely and directly affected by my act that I ought reasonably to have them in
contemplation as being so affected when I am directing my mind to the acts or
omission which are called in question.7
This statement created the ‘neighbour’ principle in negligence that is now the
cornerstone of the law when evaluating a duty of care. With this assessment, the
vast majority of situations will give rise to a duty of care when considering factors
such as the relationship between the persons involved, proximity and the ability to
take precautions.
133
In most cases that come before the courts, whether the defendant owes the plain-
tiff a duty of care will usually be determined by reference to the precedents estab-
lished by similar cases8, noting that it is acknowledged that the categories of duty
remain open to development under the common law and relevantly associated
legislation in each jurisdiction.
Assessing the duty of care in new and novel circumstances has been an area that
has caused some disquiet and controversy for the courts over the years, with the
High Court of Australia developing various approaches in its attempts to provide
a clear guide for litigants. The application of these different approaches has arguably
created some uncertainty whereas the codification of these common law factors has
now provided the courts with a more structured assessment tool when considering
whether a duty of care exists in less defined circumstances.
The various state and territory civil liability Acts have codified the core principles
around a duty of care and the factors that may give rise to a breach of duty in a
general sense while noting that the particular circumstances of each case are taken
into account when assessing liability.9 The statutory provisions state that a person
is not negligent in failing to take precautions against a risk of harm unless: the
risk was foreseeable; the risk was not insignificant; and, in the circumstances, a
reasonable person in the person’s position would have taken those precautions.10
The on-duty paramedic will always owe a duty of care to their patients and
others with whom they may come into contact while fulfilling their professional
duties. The contentious position of the off-duty paramedic will be discussed later
in the chapter.
What are the standard of care and the assessments that identify a breach
of duty of care?
As described above, a duty of care can normally be readily identified in most factual
situations where one party is in some way responsible for another party’s welfare,
whereas more complicated scenarios may arise and require a more detailed
analysis.
Once a duty of care has been established, the next step in the investigation is
whether the party who owes a duty of care has breached that duty and, therefore,
fallen below the standard required by law.
In determining whether a reasonable person would have taken precautions against
a risk of harm, the Acts also affirm that a court is to consider, amongst other relevant
things: 1) the probability that the harm would occur if care were not taken, 2) the
likely seriousness of the harm, 3) the burden of taking precautions to avoid the risk
of harm and 4) the social utility of the activity that creates the risk of harm.11 These
assessments are known as the factors that incorporate the ‘calculus of negligence’.
None of these four factors will of itself be determinative of liability with the courts
balancing them against each other to decide whether the defendant should have
taken additional precautions to avoid the risk of injury.12
A number of the civil liability Acts identify an extended test where the standard
of care, and its potential breach, is being assessed for ‘professionals’. The definition
of a ‘professional’ is an ‘individual practising a profession’.13 Although this definition
does not necessarily assist our analysis to any great degree, the cases that have
134
developed around this aspect of negligence law normally revolve around medical
practitioners. Kerridge et al, however, suggest that the term is not limited to the
medical profession and that it would be up to a court to decide whether, in the
circumstances of a particular case, a person was practising as a professional or not.14
As discussed in Chapter 3, paramedics are not currently registered health profes-
sionals with the Australian Health Practitioner Regulation Agency (AHPRA), but
it is anticipated that they will be in the next two or three years. At this stage, it
remains to be seen whether paramedics will be incorporated under this heading as
various considerations need to be assessed, including the ability to make indepen-
dent treatment decisions beyond set protocols and the regulation of the role through
factors such as registration. The common law still applies, however, and it is advis-
able that paramedics conduct themselves as healthcare ‘professionals’.
Legislation in Victoria and South Australia15 also extends the base classification
in relation to the standard of care to ‘persons holding out as possessing a particular
skill’16 where that person is assessed on the basis of ‘what could reasonably be
expected of a person possessing that skill and the relevant circumstances as at the
date of the alleged negligence and not a later date’.16 This would be likely to cover
paramedics in their role.
This principle also gives rise to the question as to what standard of care a student
paramedic will be held to when operating in the field. In most situations, a student
paramedic will be unrecognisable to patients and members of the general public as
an inexperienced paramedic unless it is made clear to the patient or an insignia is
obvious or pointed out to those involved. Therefore, two options arise: first, that a
clearly recognisable student paramedic will be held to the standard of care of a
reasonable student in the circumstances; second, that an unrecognisable student will
be held to the standard of a reasonable paramedic, remembering that the ultimate
duty of care lies with the employer who must ensure that ambulance crews are
operating in the field with competence.
While the common law definitions will continue to hold significant weight and
the statutory interpretations will develop over time, when considering that the
negligence additions to the civil liability Acts are less than 10 years old, the primary
assessment for the standard of care will always be a fundamental question of whether
a person acted with reasonable care in avoiding foreseeable injury to others in the
circumstances.
In short, the clinical standard of care required to be given to a patient is deter-
mined by the peer group. This is evidenced by protocols, clinical guidelines, codes
of conduct, policy documents and evidence from peers about what they would do
if they were in a similar situation. The giving of information to the patient also
forms part of the standard of care and is discussed separately.
The giving of information and the standard of care

Although the basic standard of care required in giving information to a patient will
be similar to the standard of care in the treatment of a patient, the requirements
when giving information extend the standard in a key area.
The case of Rogers v Whitaker17 is the lead case in this area of negligence law
(see Case 7.1).
135
Case 7.1
Rogers v Whitaker (1992) 175 CLR 479
Mrs Whitaker had been almost totally blind in her right eye for nearly 40 years
since suffering a severe injury to the eye at an early age. Despite the injury, she
had lived a substantially normal life. Dr Rogers, an ophthalmic surgeon, advised
her that an operation on the injured eye would not only improve its appearance
but would potentially restore sight to it.
Following the surgery, which was conducted without any negligence, Mrs
Whitaker developed a condition known as ‘sympathetic ophthalmia’ in her left eye.
She subsequently lost all sight in her left eye and, as there had been no
restoration of sight in her right eye, she was left almost totally blind.
She sued Dr Rogers, alleging his failure to warn her of the risk, albeit remote, of
sympathetic ophthalmia was negligent. She had not specifically asked whether the
operation to her right eye could affect her left eye, but she had incessantly
questioned the appellant as to possible complications. Evidence provided at the
trial was that the risk of sympathetic ophthalmia is about 1 in 14,000 and, even
then, not all cases lead to blindness in the affected eye.
The majority stated that, in circumstances such as this, doctors are required to
inform their patients of any ‘material’ risks inherent in a procedure. They
suggested that a ‘material’ risk was one where a reasonable person in the
patient’s position, if warned of the risk, would be likely to attach significance to it
and that it was a matter for the court to determine whether the doctor provided
adequate information and advice as to the material risks.
The court decided that Dr Rogers was negligent in not informing Mrs Whitaker of
this inherent material risk in the circumstances, thus denying her of the chance to
decline to have the operation.
The important extra element in cases where the provision of information is

involved is that, although the standard of care will be assessed in light of what a
reasonable professional should have done in the circumstances, the decision-making
process of the receiver of the information (normally the patient in medical cases)
will play a role and be analysed to ascertain whether reasonable care was taken in
providing that information. As Mendelson describes, ‘except in cases of emergency,
the choice as to whether to proceed with medical treatment is to be made by the
patient on the basis of the information provided by the medical practitioner’.18
The key cases in this area have typically involved medical practitioners. The
principle can be applied to paramedic practice with a precautionary note when
genuine emergency situations arise while also recognising that a paramedic’s diag-
nostic and treatment armoury is restricted within the framework of clinical guide-
lines. The doctrines of emergency and necessity allow medical professionals to
136
undertake treatment without the consent of patients in select circumstances. When

a patient has complete capacity and is able to understand all the information
provided to them, despite the acute nature of the circumstances in common ambu-
lance scenarios, they will be entitled to be afforded all the relevant details of the
treatment being proposed, including any inherent material risks associated with
the procedure.
For example, when introducing an intravenous pain relief agent, a paramedic
should provide the patient with details regarding the broad nature and effect of the
treatment and any material risks that the patient has concerns about or that the
treating paramedic thinks the patient would be concerned about, prior to com-
mencing the treatment. If the patient does not have the capacity to understand,
believe, weigh and communicate a decision about the treatment, and there is no
surrogate decision maker available, the paramedic may be able to instigate the treat-
ment if it will prevent further harm or save the patient’s life. See the section on
‘Capacity’ in Chapter 6 for more details.
Although the law recognises that the circumstances in pre-hospital care are often
quite different from the controlled environs of a medical facility, the duty to warn
of inherent material risks in the treatment of patients remains a paramount
consideration.
In short, if a paramedic fails to give a competent patient (or their surrogate) the
information on the broad nature and effect of treatment proffered and the material
risks associated with it, they expose themselves to a charge of negligence.
What is damage?
There can only be a successful claim of negligence if a recognisable form of damage
has been sustained. To be compensable, damage must be of the kind, class, char-
acter or type as that which was reasonably foreseeable.19 The damage cannot be
insignificant, and the various states and territories identify ‘significant’ injury
through a variety of criteria, including medical assessment as to the degree of
impairment.20
The damage can be an economic or non-economic loss. Economic loss includes
medical expenses, care services, lost income and anticipated loss of future earnings
– anything that can have a monetary value assigned to it – whereas non-economic
loss can include pain and suffering, disfigurement and loss of enjoyment of life.
What is causation and what is remoteness?

The notion of causation is used to establish if the breach of duty ‘caused’ or was
responsible for the damage or harm suffered by the patient. The legal principles
associated with causation have created some challenging questions for courts over
the years, particularly in negligence cases.
The plaintiff must prove causation on the ‘balance of probabilities’, as
distinct from the higher level of proof required in criminal cases, being ‘beyond
reasonable doubt’.
Causation has often been assessed by courts using the ‘but for’ test, where the
court poses the theoretical question, ‘would the damage have occurred, but for the
defendant’s negligence?’ This test has received some criticism despite its widespread
137
application as a basic legal tool when assessing whether a defendant should be held
liable for the damage caused.
The civil liability Acts have now codified the requirements of causation into two
distinct enquires. The first is known as factual causation, where the requirements
state that ‘the negligence was a necessary condition of the occurrence of the harm’21,
whereas the second is known as legal causation, or the ‘scope of liability’, which
requires ‘that it is appropriate for the scope of the negligent person’s liability to
extend to the harm so caused’21 as it relates to remoteness of damage.
What is vicarious liability?

Vicarious liability refers to the liability that is automatically transferred from one
party to another because of the legally recognised relationship between them. The
most common type of vicarious liability covers the employer/employee relationship
whereas other forms are deemed through some agency and partnership associations
and an extended version, known as a ‘non-delegable duty of care’, applies in some
specific cases.
A number of legal and policy-based grounds underpin the principle of
vicarious liability. It is appropriate to review the principle as it applies to the
employer/employee relationship and discuss its impact on paramedic practice (see
Case 7.2).
Applying this to practice, if a paramedic inadvertently delivers an overdose of a
drug that is within their scope of practice and clinical guidelines, the employer will
be liable for the potential damage unless it can be proven that some deliberateness
was at play in the conduct of the paramedic. If, however, a paramedic were to act
outside their scope of practice and they harmed the patient as a result, it is possible
Case 7.2
Deatons Pty Ltd v Flew (1949) 79 CLR 370
A barmaid who was employed by Deatons Pty Ltd threw a glass of beer into the
face of a patron after he had been abusive. He suffered an injury that caused him
to lose sight in one eye.
The court found that the barmaid was acting outside the ‘scope’ of her
employment and, therefore, her employer was not vicariously liable for the
damage caused to the plaintiff and stated:
It was an act of passion and resentment done neither in furtherance of the master’s
interest nor under his express or implied authority nor as an incident to or in
consequence of anything the barmaid was employed to do. It was a spontaneous act of
retributive justice.
The decision in Deatons Pty Ltd v Flew is often criticised as being too harsh. The
analysis falls to a decision as to what might constitute a particular employee’s
‘scope’ of employment.
138
that they will not be vicariously covered by their employer for that action and will
potentially be personally liable for that harm.
Is there a duty to rescue and where do the obligations of

the off-duty paramedic lie?
There is no general duty to go to the rescue of others in emergency situations. Off-
duty paramedics will often come across medical emergencies, and the decision to
assist is not a legal but a personal one, although it should be noted that some exten-
sion to this lack of duty may potentially arise where a paramedic is in uniform. In
this situation, a ‘community expectation’ duty of care may arise where the public
perception is, or is likely to be, that the uniformed paramedic would go to someone’s
aid in a medical emergency. It should be noted that this is not an area of duty of
care that has been legally tested.
The duty of care owed by professionals was reviewed in great detail in Stuart v
Kirkland-Veenstra [2009] HCA 15. The High Court was asked to consider whether
two police officers owed a duty of care to a potentially suicidal man whom they
found sitting in his vehicle with a vacuum hose running from his exhaust pipe
into his window. After talking with the man for some time and making various
inquiries, the police officers assessed that he was not at current risk of self-harm.
They also formed the opinion that he was rational and coherent and did not appear
to be mentally ill. The man committed suicide later that day in his car via carbon
monoxide poisoning. The partner of the deceased sued the police officers, alleging
that they were negligent and breached their duty of care in not apprehending
the deceased pursuant to s10 of the Mental Health Act (Vic) 1986. The case was
peculiar in its facts and the decision was based on a narrow interpretation of duty
of care, and the court ultimately decided that a duty of care should not be imposed
as the police officers did not have the requisite control over the risk of harm to
the deceased.
This lack of duty has long been recognised for all citizens, including paramedics,
but doctors have found themselves in a slightly different situation following a well-
known case in the mid 1990s (see Case 7.3). Although the case was peculiar in its
Case 7.3
Lowns & Anor v Woods & Ors (1996) Aust Torts
Reports 81–376
The case involved a mother who found her 11-year-old son, Patrick Woods, fitting.
She sent his brother to summon an ambulance from the branch nearby and his
sister to a local general practitioner to ask the doctor to attend to help her
brother. The daughter ran to the surgery of Dr Peter Lowns, which was
approximately 300 metres away, and advised him that her brother was having an
epileptic fit and asked the doctor to attend to provide assistance.
139
own facts in some ways, the duty bestowed upon doctors has arguably been extended
beyond those of other members of the community.
Although there was a factual dispute about whether the request was made, the
court found that the doctor had been advised of the boy’s situation, had refused to
attend the house to provide assistance and had told his sister to bring him to the
surgery. The epileptic fit prevented adequate oxygenation, which resulted in signifi-
cant brain damage that left him permanently and totally disabled.
The court found that the doctor did have a duty of care to help the child and,
if the doctor had attended to provide assistance, it was likely that he would not
have suffered the serious consequences that eventuated.
The court imposed a duty while recognising that there was no Australian case
that had previously imposed liability on a doctor for failing to attend and treat
someone despite there being no pre-existing doctor–patient relationship.
The reasons for this are particular to this case, but important to take account of,
and include:
• The doctor had a sign holding out that he was a general practitioner and
the surgery was open to attend patients.
• A direct request was made for the doctor to attend.
• The patient was very close so there was a ‘physical’ proximity.
• The doctor had no other patients more urgent to deal with at the time
and, therefore, nothing to prevent him from attending.
Good Samaritans
The often cited, ‘Good Samaritan Act’ does not actually exist as a separate piece of
legislation. The good Samaritan provisions can be found in the various civil liability
Acts throughout Australia.22 The legislation is aimed at protecting citizens who act
in ‘good faith’ in an ‘emergency or accident’ where, in most instances, they have no
expectation of ‘financial reward’, therefore creating a barrier against civil liability.
The off-duty paramedic will be protected by this legislation, while also noting
that a number of states and territories also specifically indemnify ‘medically quali-
fied’ persons within the definitions where the assistance might extend to the provi-
sion of medical ‘advice’ in an emergency situation.23 The definition of a medically
qualified person in these statutes incorporates paramedics through wording such
as ‘a person who works or has worked as an ambulance officer or in some other
recognised paramedical capacity’.24
Intoxicated patients
The vexed questions that accompany the treatment of intoxicated patients
create difficulties for paramedics in the field. These complexities often involve a
delicate balance between various considerations, and the law of negligence has
recognised this aspect of human relationships generally, which can be applied to
paramedic practice.
Although the common law treatment and assessment of intoxication remain
relevant, some Australian jurisdictions have codified this area of negligence law.25
New South Wales has addressed this component of the Civil Liability Act in definite
140
terms by expressly excluding recovery for negligence-based injury, potentially by

100%, where the person ‘was at the time of the act or omission that caused the
death, injury or damage intoxicated to the extent that the person’s capacity to exer-
cise reasonable care and skill was impaired.’26 The Victorian statute applies against
a person alleging negligence and states, ‘in determining whether the plaintiff has
established a breach of the duty of care owed by the defendant, the court must
consider, among other things – whether the plaintiff was intoxicated by alcohol or
drugs voluntarily consumed and the level of intoxication’.27 The patient’s intoxica-
tion does not relieve the paramedic of the duty to provide the required reasonable
standard of care. Indeed, if it were the paramedic who was intoxicated while treating
a patient and the paramedic failed to meet the required standard of care as a result,
the paramedic could in no way rely on intoxication as a defence. This is codified
in civil liability legislation. However, it may be that the intoxication of the patient
contributes to or exacerbates the harm they experience as a result of the negligence
of a paramedic. This is known as the ‘voluntary assumption of risk’ or ‘contributory
negligence’, which will be discussed in the following section.
Defences to a negligence claim – contributory negligence and the voluntary

assumption of risk
The two major defences to a negligence claim are contributory negligence and the
voluntary assumption of risk.
The defence of contributory negligence re-examines the elements of breach of
duty of care and causation from the defendant’s perspective, analysing the plaintiff’s
conduct and its contribution to the injury, whereas the plea of voluntary assumption
of risk focuses on the existence and scope of the duty of care.28 Broadly, contribu-
tory negligence is a relatively straightforward concept that requires a more detailed
assessment after its acceptance in a particular fact scenario.
A plaintiff will be found to have contributed to their own injury if they generally
fail to take precautions against the risk of harm in a given situation. The person’s
failure to take precautions is assessed in the same fashion that primary liability at
the breach of duty stage in negligence is assessed, being an objective test whereby
the plaintiff is judged on what a reasonable person in that given situation would
have, or should have, done.
The various civil liability Acts identify the coverage of contributory negligence29
and the standard of care required to found liability29, and the provisions now allow
a defendant to fully escape liability in negligence where it can be established that
the plaintiff was entirely responsible for their injuries when not taking precautions
against the risk of harm. Although a 100% reduction is available under the legisla-
tion, it remains rare and most successful defence cases proving contributory negli-
gence fall into the 30–40% range.
Voluntary assumption of risk, or volenti non fit injuria, is a defence pleaded where
a person, being aware of the risk that they face, decides to act and accept the risk
of injury occurring.30
While the defence is again codified through the civil liability Acts, the historical
common law basis of the defence was predicated on the requirement that a person
must ‘perceive, understand and appreciate the full extent of both the risk of an
141
injury and the legal consequence of the waiver of the duty of care’.31 This has
been identified as a narrow defence because the defendant has the burden of proving
that the plaintiff agreed to take responsibility for the particular risk that had
materialised.32
The statutory coverage of this defence takes a different approach, with the central
enquiry being whether a particular risk was ‘obvious’. The statute undertakes a
balancing enquiry where, primarily, ‘the person who suffered harm is presumed to
have been aware of the risk, unless the person proves on the balance of probabilities
that the person was not aware of the risk’33, while noting that this does not apply
‘to the provision of or the failure to provide a professional service or health service’34,
whereby the common law will still apply. The statutes go further in attempting to
clarify the meaning of the risks by stating, amongst other definitions, that an
obvious risk is one that ‘would have been obvious to a reasonable person in the
position of that person’ and would ‘include risks that are patent or a matter of
common knowledge’.35
Voluntary assumption of risk has a wider application beyond negligence when
considering human activities such as high-risk recreational sporting pursuits. A
provider of these types of services can now eliminate certain normally non-excludable
consumer guarantees36, whereas in some states the participation in a recognised
‘dangerous recreational activity’37 is excluded for persons who suffer harm as a result
of ‘obvious risks of dangerous recreational activities’.38
Negligence case study 1

The key case of Ambulance Service of NSW v Worley [2006] NSWCA 102 (Case 7.4)
offers an excellent overview of negligence principles from the perspectives of the
Case 7.4
Ambulance Service of NSW v Worley [2006]
NSWCA 102
Mr Worley was a 46-year-old postman. While delivering mail on a motorcycle on 7
October 1998 he sustained a bee sting at approximately 11.30am. He had been
stung on four previous occasions over the preceding six years, with increasing
allergic reactions.
He noted that his neck was starting to redden and he decided to go back to the
mail delivery centre. The trip took him approximately 20 minutes.
On arrival at the mail delivery centre, Mr Worley dismounted from his motorcycle
and felt that in doing so he had lost control of his bowels. Mr Worley said that he
found it ‘a bit hard to breathe’ on the trip back, but otherwise negotiated the 5.4
kilometres without anything adverse occurring. He agreed that his throat had
begun to swell up at that time. He had a severe pain in his chest by the time he
142
Case 7.4
Ambulance Service of NSW v Worley [2006]
NSWCA 102 continued...
reached the mail delivery centre – despite the significance of this symptom, noted
by the patient in his evidence, it did not form part of the paramedic’s clinical
findings and was not therefore at issue.
At 12.01pm, the manager of the mail delivery centre rang for an ambulance. The
ambulance arrived at 12.17pm. The Ambulance Service records contain the
following entry in relation to the condition of Mr Worley:
Pt c/o feeling itchy/dyspnoeic. Pts face red/swollen. Pt c/o severe pain to neck
associated c bite. Audible exp wheeze. Obvious swelling to face. Tongue not swollen.
Nil difficulty swallowing. Pt post treatment. Pt c/o severe itching to genitalia.
The patient report also noted that at 12.20pm Mr Worley’s pulse rate was 100
and his blood pressure was 78 systolic, with a respiration rate of 28 breaths per
minute. At 12.21pm Mr Page (the case refers to ‘ambulance officer’ whom we
shall identify as ‘paramedic’ when commenting on the case) administered
0.4 mg adrenaline IV in four equal parts at 30-second intervals. The result was
indicated as a reduction in dyspnoea and increase in blood pressure. At 12.25 he
administered haemacell intravenously, with an improvement in perfusion.
By 12.30pm, when the Hartmann’s solution was administered IV, the pulse rate
was down to 80 and the blood pressure up to 90 systolic. The respiratory rate was
recorded at 24.
Mr Worley was conscious throughout this treatment and was sitting on the bed in
the first aid room. As Mr Page inserted a cannula in his right hand Mr Worley
made a joke that indicated he was mentally alert.
The ambulance left with Mr Worley at 12.30pm. Mr Page travelled with him in the
back of the ambulance, which Mr Parsell (the second paramedic) drove. Shortly
after the trip commenced, Mr Worley complained of a severe pain in his head,
which caused him to remove the oxygen mask and say ‘my head feels like it’s
about to explode’.
Mr Worley suffered an intracranial haemorrhage that left him with a number of
permanent disabilities that were mainly physical, although they were accompanied
by some change in personality and a mild cognitive disability.
The court found that the intracranial haemorrhage was caused by a sudden spike
in blood pressure as a result of the adrenaline treatment, which was also found to
be a possible side effect of this type of treatment.
143
treating paramedics and the Ambulance Service itself. The case provides a typical
factual scenario and analyses the crucial aspects of breach of duty from the employer
and employee’s positions while also delivering an excellent overview of the rigour
of the Australian court system, which saw a flawed decision overturned.
The case review will assess the scenario through the lower court’s initial finding
and the appeal court’s alternate decision and then discuss the contentious aspects
of the findings, finally providing some further commentary in the context of
contemporary ambulance practice.
The initial finding by the lower court

Mr Worley was awarded $2,628,032.57 in the New South Wales Supreme Court,
at first instance, on the basis that the treating paramedic was negligent in adminis-
tering the adrenaline in the circumstances. The Ambulance Service, as his employer,
was found to be vicariously liable for the damages payout.
A defence of ‘contributory negligence’ on the part of Mr Worley for not taking
precautions or undertaking desensitisation treatment for his known allergy to bee
stings was rejected.
This decision was found to be fundamentally flawed when the NSW Court of
Appeal overturned the finding.
The finding by the NSW Court of Appeal

The NSW Court of Appeal focused on two areas.
The first was whether the paramedic was negligent in his treatment, and the
second was whether the protocol of the Ambulance Service of NSW directly relating
to this treatment regime was negligent in that it was inadequate and/or not in
keeping with the currently recognised treatments for anaphylaxis.
Was the paramedic negligent?

The relevant protocols in relation to anaphylaxis involved two parts, diagnosis and
treatment.
They stated:
DIAGNOSIS
• May occur in response to drugs especially antibiotics, X-ray contrast media,
certain foodstuffs and insect bites especially bee stings.
• May present with:
Upper airway obstruction due to swollen tongue or laryngeal oedema
Lower airway obstruction with bronchospasm
Hypotension
Bright red skin with sometimes urticaria
TREATMENT
1 Basic protocol 2.
Nasopharyngeal airway may be useful if tongue is swollen.
2 Cannulate and administer Hartmann’s.
3 Adrenaline is indicated if any one of the following are present:
144
Upper airway obstruction.

Lower airway obstruction.
The ‘keys signs’ of severe shock except skin is often warm and pink.
4 If hypovolaemic shock persists despite adrenaline follow Protocol 42.
5 Salbutamol for mild bronchospasm.
6 URGENT TRANSPORT.
The guide for the administration of Adrenaline for this presentation was:
ASTHMA OR ANAPHYLAXIS
• 1ML OF 1 : 10,000 ADRENALINE IV EVERY 30 SECONDS until the
patient is no longer ‘in extremis’ or a maximum of 5mL.
• Monitor E.C.G. continuously.
• Can be repeated every 5 minutes.
• Give IM as a bolus if a vein is not available.
The court also noted that: ‘the indications for use of adrenaline in relation to
anaphylaxis in the protocol did not use the term “in extremis”, although the indica-
tions in relation to asthma did’.39
The term, ‘in extremis’, became highly contentious at the initial trial. The findings
by the lower court judge were that the paramedic had not interpreted the protocols
correctly and had given the patient IV adrenaline when he was not, in fact, showing
signs of being ‘in extremis’. (‘In extremis’ was found, within the context of this case,
to mean ‘on the point of death’, although it was noted to be a term without precise
meaning.)
The NSW Court of Appeal also clarified their thoughts on this issue when they
found that:
Given the findings in relation to the expectations of ambulance officers and
the symptoms of anaphylaxis (as compared with asthma), it seems inherently unlikely
that the protocols were intended to impose on ambulance officers an obligation
to determine how close a seriously compromised and deteriorating patient was
to death.40
In relation to the negligence of the paramedic, the first hearing took extensive
evidence from numerous medical specialists. Although this evidence was critical at
first, the NSW Court of Appeal found this was not the correct approach in cases
such as this. They explained their reasoning this way:
Ambulance officers are not medical practitioners, let alone specialists in emergency
medicine. Their training is by no means insignificant, but it does not equip them
with the theoretical knowledge which would permit a fine evaluation of alternative
treatments. In a case such as the present, their two functions were to stabilise the
condition of a patient, so far as their skills and resources permitted, and to ensure
his speedy transfer to an available hospital. There was no complaint in relation to
their performance of the transfer function.
Perhaps surprisingly, and not including the treating medical practitioners, each party
at trial called five medical specialists, whose evidence was directed mainly to the
question as to what was accepted medical and pharmacological practice in relation
145
to the administration of adrenaline in 1998. Without objection, experts in emer-

gency medicine discussed their own practices in well-equipped teaching hospitals,
with far less attention being given to the position of ambulance officers and the
nature and purpose of the protocols which governed their conduct.41
Therefore, after reassessing all the evidence available, the NSW Court of Appeal
overturned the initial finding and held that the paramedic was not negligent in his
treatment of Mr Worley.
Conclusion as to the paramedic’s negligence

The various elements of negligence were analysed. Although some would have
been uncontroversial in the analysis, the key finding was that what the paramedic
did was ‘reasonable’ in that he followed the protocols that were within the range
of his training after correctly diagnosing the patient’s condition. He could do
no more and, although there was an unfortunate adverse outcome, he was not
negligent.
The paramedic obviously had a duty of care but did not breach that duty of care
because he did not fall below the standard required of a person, when assessed
objectively within the circumstances of this particular case, acting in the role of a
paramedic.
After finding that the paramedic was not negligent, it became unnecessary to
consider the other elements of negligence, such as causation and damage.
Was the Ambulance Service negligent in relation to the protocols?

The court introduced this contention by stating:
It was open to the plaintiff to establish that, even if Mr Page followed the protocol,
with adverse results, the Ambulance Service would be liable in negligence because it
had failed to exercise due care in the preparation of the protocols. To establish that
case, the plaintiff sought first to establish that the administration of IV adrenaline
was not part of accepted medical practice and, to the extent that the protocol per-
mitted such administration to a patient who was not on the point of death, it was
formulated negligently.41
The court again took evidence from numerous medicals specialists while also
comparing the protocols for the treatment of anaphylaxis with those from other
ambulance jurisdictions, including Victoria, to assess whether the protocol being
used in NSW was reasonable and appropriate when taking the available information
into account.
The respondent’s (Mr Worley, who was the ‘plaintiff’ in the original case) case on
this issue was founded on the contention that IM adrenaline was the more appro-
priate treatment regime because it was less likely to cause catastrophic effects such
as those suffered by Mr Worley.
Conclusion as to the negligence of the Ambulance Service

The NSW Court of Appeal again analysed the various elements of negligence and
found that the Ambulance Service was not negligent in their development and
administration of the protocols.
146
The Ambulance Service of NSW did have a duty of care to Mr Worley but
did not breach that duty of care because they met the required standard in the
development and administration of protocols for the treatment of patients with
anaphylaxis within the scope of the information available to them at the time.
The NSW Court of Appeal concluded by stating:
It follows that the plaintiff was a most unfortunate victim of misadventure. He is
entitled to receive benefits in the nature of workers compensation, for an injury
suffered in the course of his employment. He is not, however, entitled to damages
for negligence on the part of the Ambulance Service.42
Comments on the case

This was clearly a difficult case for all concerned, including the patient, the para-
medics and their families. Mr Worley was, as the court stated, an unfortunate victim
of misadventure, and he sustained significant injuries in the form of a cerebral
haemorrhage as result of the treatment.
The case was also appealed to the High Court in 2007, where special leave to
hear the case was declined.
The result was a significant one for a number of reasons.
The first is a procedural one in that the findings will hold significant precedent
value in Australian courts when similar cases come to trial because of the
high level of the decision, as it was handed down by the NSW Court of Appeal.
The more substantive value of the decision for paramedics in practice and ambu-
lance services in Australia is that the case highlights the fact that paramedics
obviously have a duty of care to patients when treating, or when omitting
to treat, under the principles of negligence, but they will not be found negligent
if they correctly diagnose and treat patients, even if the patient suffers an adverse
outcome.
The benefit of the judgement from the perspective of the ambulance service is
that it reiterates the reality that all services must be fully up to date in their design,
development and application of treatment protocols. If they are diligent in this way,
they too will be able to avoid negligence findings, even when a patient suffers a
major adverse outcome that may occur within the treatment guidelines.
Negligence case study 2

The case of Neal v Ambulance Service of New South Wales [2008] NSWCA 346
(Case 7.5) provides an interesting extension to the earlier case analysis. In this
scenario, again an all too familiar one in ambulance practice, the patient was able
to sustain a claim in negligence against the Ambulance Service and the paramedics
because the court found that they fell below the standard of care required.
Although the case did find a breach of duty by the paramedics, the appeal
court overturned the lower court’s decision on the ground that causation was
not sustainable when the patient’s condition and predicted behaviour were taken
into account.
The case review will assess the scenario through the lower court’s initial finding
and the appeal court’s alternate decision and then analyse the decision in light of
this problematic area of ambulance practice.
147
Case 7.5
Neal v Ambulance Service of New South Wales
[2008] NSWCA 346
Mr Neal was a 45-year-old man. On the night of 27 July 2001, Mr Neal (the initial
plaintiff and now appellant in these proceedings) suffered a serious blow to the
head while walking alone in Newcastle. Police discovered him and called an
ambulance. He rejected assistance from the ambulance officers. Since he was
clearly inebriated, the police took him into custody under the Intoxicated Persons
Act 1979 (NSW). The following morning, his condition was observed to deteriorate
and, being unable to rouse him easily, the police had him taken to the Mater
Hospital. A CT scan done at the Mater Hospital showed an extradural haematoma
with a fracture to the skull. The plaintiff was transferred to the John Hunter
Hospital for surgery to drain the extradural haematoma.
The plaintiff suffered different ongoing disabilities following the assault. Some,
particularly his right-sided weakness (hemiparesis), were allegedly caused by the
failure to take him to hospital when the police found him in the street.
He brought proceedings in the District Court for negligence against the state (as
responsible for the police’s alleged negligence) and the Ambulance Service of
New South Wales. He was only successful against the Ambulance Service,
recovering damages assessed on the basis of a ‘loss of a chance’ of a better
outcome. He appealed against the trial judge’s findings with respect to the State’s
liability and damages. The Ambulance Service cross-appealed in relation to its
liability.43
The case created significant complications because the court had to assess
whether any further damage had been caused by the delay (the District Court
found this to be 8 hours) between the first possibility of being taken to hospital
after the police took control of the plaintiff and the actual time he initially
received treatment at hospital. A number of experts were called to give evidence
on the connection between the injuries the plaintiff was claiming, the initial blow
and the delay in receiving treatment.
The plaintiff initially received nearly $100,000 for a range of damages, including
past and future economic loss, care services and medical expenses.
The negligence of the paramedics

The case was an interesting one from a number of negligence perspectives. The
paramedics did not actually provide any active treatment to the patient in the way
of care and transport; therefore, this was potentially a case of negligence by omission
or what they did not do.
The court noted the comments of the paramedic when stating:
148
If the plaintiff had been willing to go to hospital they probably would have
taken him because he had a laceration and a bump on his head. She was aware
that there was a risk of a haematoma and that any head injury could be a significant
head injury.44
The District Court gave this summary of what was assessed:
• As against the Ambulance Service there are two relevant bases on which
the plaintiff claims it was negligent through the actions of the ambulance
officers.
• Firstly they should have spent longer trying to persuade the plaintiff to permit
a full examination and/or be taken to hospital.
• Secondly the ambulance officers should have informed the police officers that
they had been unable to complete their examination of the plaintiff, there was
a possibility of a serious injury and he needed to be taken to hospital to have
the head injury thoroughly checked.45
The initial case revolved around the need for the paramedics to inform the police
that the patient should either be taken directly to hospital or taken should they see
signs of deterioration, such as an altered conscious state or vomiting.
Conclusion as to the paramedic’s negligence

The District Court concluded:
I am satisfied that the ambulance officers breached their duty of care to the plaintiff
in failing to inform the police officers:
1 Of the possible consequences of their inability to fully examine the
plaintiff.
2 That the plaintiff should be taken to a hospital to be medically assessed.
I do not consider however that the evidence establishes that the ambulance
officers spent insufficient time trying to persuade the plaintiff to co-operate
in the examination and/or go with them to a hospital. They continued
trying until they formed the view that the plaintiff’s attitude was unlikely
to change.46
Comments on the District Court judgement

This case study is in contrast to Ambulance Service of NSW v Worley (Case 7.4)
because it involves an omission as distinct from a negligence allegation based on
active treatment, and the manner in which the case was argued gives us more guid-
ance on how to avoid negligence actions in an ambulance context.
It sets out the way in which patients who refuse transport should be handled
when delivered to a third party for care or custody, in this instance the further care
or custody of the police.
The appeal to the NSW Supreme Court of Appeal

The plaintiff, Mr Neal, appealed the decision to the NSW Supreme Court of
Appeal on the basis that his ‘loss of chance’ of a better outcome should be extended
and his damages were inadequate. He was dramatically unsuccessful because his
appeal points were not even considered due to the cross appeal by the Ambulance
149
Service of New South Wales, which was successful on the key negligence element
of causation.
The Court of Appeal reviewed evidence from the earlier case, summarised the
position and focused on the next step in the analysis of negligence when stating:
For present purposes, nothing is gained by asking, in the abstract, whether ambu-
lance officers owed the plaintiff a duty of care: the only relevant question is whether
the ambulance officers owed the plaintiff a duty which required them to advise the
police that the plaintiff needed to be conveyed to hospital.47
The Court of Appeal then reconsidered numerous aspects of the initial case while
accepting the earlier court’s decision that the paramedics breached their duty of care
by not fully advising the police officers that Mr Neal required medical assessment
due to his potential for greater injury, despite his lack of consent to treatment and
his unwillingness to cooperate. The Court of Appeal said:
The plaintiff contended that the ambulance officers should have been alert to the
need for a medical assessment at hospital, something the police officers would not
have appreciated. If properly advised, however, the police should have taken him to
hospital themselves.48
Mr Neal’s case came down to causation. Did the negligence of the paramedics
cause his injury? The court concluded:
With respect to the liability of the ambulance officers, accepting that they should
have informed the police of the plaintiff’s need for medical assessment and accepting
that the police would have taken him to hospital, the plaintiff would still have failed
to establish liability on the part of the Ambulance Service unless he satisfied the
Court that he would have accepted medical assessment and treatment from a hos-
pital. That question was not addressed in terms by the trial judge. Without an
affirmative finding on that issue, the claim against the ambulance officers should
have failed.49
The only available inference is that he would not willingly have gone to hospital
and submitted to medical assessment, whether taken by the police (which was
itself improbable) or in an ambulance. It follows that he failed to establish, affir-
matively, that he would have accepted medical assessment and treatment. Any
breach of duty on the part of the ambulance officers was therefore not shown to
have caused the delay in obtaining treatment and hence liability was not estab-
lished. The cross-appeal should be upheld and the judgement in favour of the
plaintiff set aside.50
The difficulties associated with intoxicated and/or non-compliant patients are

highlighted when a paramedic is aware, as they were in this case, that an underlying
injury or illness may be possible but the patient refuses treatment. The issues of
patient autonomy, consent and restraint all arise in this scenario but paramedics
must operate within their designated guidelines.
In fact, the plaintiff’s lawyers initially claimed negligence by the paramedics on
the grounds that they did not forcibly restrain the patient and transport him to
hospital, but this was withdrawn before it could be tested.
150
What the finding does tell us is that all care must be taken to persuade an obvi-
ously requiring patient to go to hospital (as these paramedics were found to have
done adequately, although they were unable to convince the patient to go to hos-
pital) and, if the patient remains in the care of a third party, inform that third party
that they should take the patient to hospital and/or of what they should do if certain
events occur in relation to the patient’s condition.
The case does not tell us whether the patient was asked to sign as a ‘refused
transport’. It is an all too familiar situation in the field that must be carefully assessed
on each occasion.
While the Ambulance Service, as the authority ultimately responsible for the
actions of the paramedics, was arguably fortunate on this occasion because causation
was not established in the analysis, the case does provide paramedics and their
employers with guidance in this area of the law.
A hypothetical negligence case

Case 7.6 was introduced at the beginning of this chapter.
This case should be considered in light of the elements of negligence and potential
defences.
The elements are:
• duty of care
• breach of duty
• damage
• causation
• defences.
Duty of care Paramedics will always owe a patient a duty of care when
acting in their professional capacity. Therefore, this element will be fulfilled
– see Neal v Ambulance Service of New South Wales [2008] NSWCA 346.
Case 7.6
Negligence
A paramedic has been called to the scene of a man who has had a fall and
suffered a non-life-threatening head injury that will require hospital treatment
for suturing of a wound. When the paramedic arrives the patient behaves
aggressively, appears intoxicated and refuses transport despite continued
requests. The patient then leaves the scene after the paramedic bandages his
head wound. He is later struck by a car and sustains significant injuries.
He sues the ambulance service for negligence on the basis that his treatment
was below the required standard in two areas: firstly, that he should have been
convinced to go to hospital and, secondly, that the bandage applied was not
adequately secured and slid down over his face which caused him to be struck
by the car.
151
Breach of duty Various factors are considered in the civil liability Acts
when assessing a breach of duty while noting that the fundamental
question of whether a person acted with reasonable care in avoiding
foreseeable injury to others in the circumstances is the essence of whether a
breach of duty has occurred in a given fact situation.
This case gives rise to two assessments. Firstly, should more have been done to
ensure the patient was transported to hospital when the paramedics were aware that
treatment was required and, secondly, was the treatment provided below the stan-
dard expected of a reasonable paramedic in the circumstances?
On the first point, we are told that ‘the patient behaves aggressively, appears
intoxicated and refuses transport despite continued requests’. Although more infor-
mation may be required, it would appear that the paramedics have done all that is
possible in the circumstances to convince the patient to go to hospital, to no avail.
The paramedics, in all the circumstances, have not fallen below the required stan-
dard of care.
The extension in this scenario, similar to Neal v Ambulance Service of New South
Wales [2008] NSWCA 346, is whether a third party, such as the police, should have
been involved to facilitate transport of the patient to hospital.
The second enquiry is whether the patient was adequately treated through the
application of the bandage to his head. On the surface, it would appear that the
bandage was applied in an inadequate manner because it did not stay in place;
however, a detailed analysis of whether the paramedics acted reasonably in the
circumstances would take place to ascertain whether they had actually breached
their duty. Further influencing factors could centre on the broader notions of patient
autonomy and personal responsibility, with Australian courts placing a greater
emphasis on an individual’s accountability for their own actions in negligence claims
over the past decade.
Although the initial finding could establish that the paramedics had fallen below
the requisite standard of care, further analysis of the elements of negligence and
defences would relieve the paramedics of liability.
Damage51 The facts inform us that the potential Plaintiff has suffered
‘significant’ injuries. Therefore, we can assume that he meets the threshold
requirements for damage.
Causation Causation requires an analysis of ‘factual causation’ and the
‘scope of liability’. Therefore, did the defendant’s negligence cause the
damage or was it too remote to be blamed on the defendant in the
circumstances?
Although it would be in the balance as to whether liability would be found on
the second point, causation principles can be applied to both inquiries.
Factual causation would potentially be established if the paramedics were found
to have breached their duty of care because it would be reasonably foreseeable that
an intoxicated and head-injured plaintiff would be struck by a car if a bandage were
to be inadequately applied. The scope of liability or remoteness of damage would
also possibly be established because the actual injuries would, again, be reasonably
foreseeable in the circumstances.
152
Further, in a similar fact scenario in Neal v Ambulance Service of New South Wales
[2008] NSWCA 346, the court found that causation was not sustainable because
the plaintiff could not prove that, even if he was advised and treated at the required
standard, he would not have accepted the care and transport. Applying this case to
the facts, causation would not be established.
Defences The defence of contributory negligence and the statutory factors
around intoxication would be highly relevant in this scenario and would
only be required if all the elements of negligence were upheld.
Focusing on the key defence of contributory negligence, the assessment is an
objective test as to whether the plaintiff did what a reasonable person in that given
situation would have, or should have, done.
Applying this principle to the facts, the patient’s aggressive and non-complying
approach, which arguably contributed significantly to his injuries, would negate any
breach of duty to a considerable degree and potentially by 100%, which is now
possible under a number of civil liability Acts.
Conclusion
This case has shown how a negligence action would progress in a typical ambulance
scenario. The result would invariably see the paramedics exonerated from a negli-
gence claim due, initially, to doubts on the numerous aspects of causation and,
ultimately, the patient’s own actions.
From a number of perspectives, scenarios such as this exhibit the ease with which
difficulties for paramedics can arise, even after they have dealt with a case and they
are no longer in direct contact with the patient. Ensuring all relevant protocols and
procedures are followed in every case is always a paramount consideration. The
practical tip from this scenario is: when issues of intoxication and cognisance arise,
ensure all the information possible is made available to the patient and consider
third party intervention when your professional judgement identifies potential
dangers to a patient who refuses transport.
Conclusion
The aim of this chapter was to introduce the important common law and statutory
principles that are required to establish a negligence action, while reviewing a
number of the issues that paramedics may encounter in the field when faced with
problematic situations.
We identified the elements of negligence through an introduction to the duty of
care and an assessment of the various aspects of breach of duty, then briefly exam-
ined causation and remoteness of damage and rounded off the analysis by reviewing
the two key defences that are available in a negligence action.
The relationship of the paramedic’s employer through the window of vicarious
liability was discussed, while also assessing the personal and professional responsi-
bilities of the paramedic when acting in different capacities.
The chapter concluded by reviewing two relevant cases that applied the key ele-
ments of negligence in an ambulance/paramedical environment to contextualise our
examination of negligence laws.
153
Review questions
1 What are the elements of negligence and which are the most problematic
in ambulance practice?
2 What piece of legislation codifies the common law principles of negligence
in your personal jurisdiction?
3 How might the defence of contributory negligence apply in common ambu-
lance practice situations?
4 Do you agree with the NSW Court of Appeal in Ambulance Service of NSW
v Worley [2006] NSWCA 102, where it was stated:
Ambulance officers are not medical practitioners, let alone specialists in emer-
gency medicine. Their training is by no means insignificant, but it does not
equip them with the theoretical knowledge which would permit a fine evalu-
ation of alternative treatments.
5 In Neal v Ambulance Service of New South Wales [2008] NSWCA 346, the
court found that the paramedics were negligent because, despite their rea-
sonable attempts to persuade the patient to go to hospital, they failed to
inform a third party (the police, in this instance) of the possible conse-
quences of their inability to fully examine the plaintiff and that the plaintiff
should be taken to a hospital to be medically assessed. Discuss how you
might alleviate this danger in practice.
Endnotes
1 Mendelson, D (2007) The New Law of Torts. South Melbourne, Vic: Oxford
University Press.
Professions. Sydney: The Federation Press.
3 Ipp, D, Cane, P, Sheldon, D and Macintosh, I. Review of the law of negligence
– Final report. Online. Available: http://revofneg.treasury.gov.au/content/Report2/
PDF/Law_Neg_Final.pdf (accessed 17 May 2012).
4 See Wrongs Act 1958 (Vic), Section 47.
5 Sappideen, C, Vines, P, Grant, H and Watson, P (2009) Torts, Commentary and
Materials. Pyrmont, NSW: Lawbook Co.
6 Donoghue v Stevenson [1932] AC 562.
7 Donoghue v Stevenson [1932] AC 580.
8 McGlone, F and Stickley, A (2009) Australian Torts Law. Chatsworth, NSW:
LexisNexis Butterworths.
9 NSW s5B(1), Tas s9, Vic s48, ACT s42, Qld s9, SA s31, WA s5B(1).
10 NSW s5B(2), Tas s11, Vic s48(1), ACT s43, Qld s9, SA s32, WA s5B(2).
11 NSW s5B(2), Tas s11, Vic s48(2), ACT s43, Qld s9, SA s32, WA s5B(2).
University Press, p. 276.
13 NSW s50, Qld s22, Tas s22, Vic s59 noting that, in other states and territories, the
common law will apply.
154
Professions. Sydney: The Federation Press, p 149.
15 Note that this is a codification of a common law principle that would be likely to
apply in other jurisdictions.
16 Wrongs Act 1958 (Vic) s58; Civil Liability Act 1936 (SA) s40.
17 Rogers v Whitaker (1992) 175 CLR 479.
20 See, s28LF Wrongs Act 1958 (Vic)
21 ACT s45, NSW s5D, Qld s11, SA s34, Tas s13, WA s5C, Vic s51 noting that the
Northern Territory has no equivalent provision and the common law therefore
applies.
22 NSW s57, Tas s35B, Vic s48, ACT ss96–97, SA s47, WA s5AD, NT s8, Qld
(proposed) s27A.
23 ACT s3(b).
24 See ACT s3(c), SA s74(1)(c), NT s8(4)(c).
25 NSW s50, Vic s14g, ACT s5, SA s74, WA s5AD, Qld s15, NT s15.
26 Civil Liability Act 2002 (NSW) s50(1).
27 Wrongs Act 1958 (Vic) s14(G)(2)(a),(b).
29 NSW s5R, Tas s23, Vic s48, ACT s47, SA s44, WA s5K, NT s16, Qld s23.
30 Eburn, M (2005) Emergency Law – Rights, Liabilities and Duties of Emergency
Workers and Volunteers. Leichardt, NSW: The Federation Press.
33 Wrongs Act 1958 (Vic), s54(1).
34 Wrongs Act 1958 (Vic), s54(2)(a).
35 Wrongs Act 1958 (Vic), s53(1),(2).
36 Consumer and Competition Act 2010 (Cth), s139A.
37 See s 5K of the Civil Liability Act 2002 (NSW) where ‘dangerous recreational
activity’ means a recreational activity that involves a significant risk of physical harm.
38 Civil Liability Act 2002 (NSW), s5L.
39 Ambulance Service of New South Wales v Worley [2006] NSWCA 102 at 60.
41 Ambulance Service of New South Wales v Worley [2006] NSWCA 102 at 29–30.
43 Neal v Ambulance Service of New South Wales [2008] NSWCA 346, Headnote.
44 Michael Shane Neal v Ambulance Service of NSW and The State of New South Wales
[2007] NSWDC 123, 11.
155
[2007] NSWDC 123, 11 at 25.
[2007] NSWDC 123, 11 at 40.
47 Neal v Ambulance Service of New South Wales [2008] NSWCA 346, 24.
48 Neal v Ambulance Service of New South Wales [2008] NSWCA 346, 24 at 16.
51 Note that a public road and vehicle related personal injury claim would be funded
under the various ‘no-fault’ liability compensation schemes in each state and territory
and not normally be litigated as a negligence claim.
156
Chapter 8
End-of-life care
Ruth Townsend
Learning objectives
• Identify the legal requirements and mechanisms that allow patients to make an
advance care directive (ACD) in each Australian jurisdiction
• Understand the difference between the withdrawal and/or withholding of
life-sustaining treatment from competent as opposed to incompetent adults
• Understand the role of a substitute decision maker in the end-of-life decision-
making process
• Determine the significance of the doctrine of double effect and how it applies in
end-of-life care
• Understand the paramedic’s role in end-of-life care
Definitions1
‘Euthanasia’ is Greek for ‘good death’. However, because the term is associated
with death it holds great power to evoke an emotional response in people upon
hearing it. What do you think of when you hear the term ‘euthanasia’? Due to the
lack of clarity of the definition of the terms used in end-of-life discussions, it is best
to set out what the various terms used in this chapter mean.
Adult A person of or above the age of 18 years. In South Australia, an adult is
someone 16 years or over for medical purposes.2
Advance directive A document that expresses a person’s wishes in relation to
medical treatment in the event of becoming incapacitated.
Capacity See competence.
Competence In the healthcare context and, in particular, in end-of-life decision
making, a person is competent or has decision-making capacity if they are able to
understand the nature, purpose and consequences of a decision. This is
demonstrated when the patient can ‘comprehend, retain and weigh up relevant
information’ and make a decision regarding their future healthcare treatment and
then communicate that decision to others. There is a presumption of competence
in adults. It is a matter for healthcare staff to demonstrate otherwise.
Euthanasia A deliberate act or omission undertaken with the intention of causing
the death of another person in order to relieve the person’s suffering. Euthanasia
can be voluntary, involuntary or non-voluntary.
157
Futile treatment Treatment that would offer no reasonable benefit to the patient or
achieve a better outcome for the patient.
Involuntary euthanasia When the person concerned may possess the capacity to
consent but their life is terminated against their will.
Life-sustaining treatment Treatment that includes cardiopulmonary resuscitation
(CPR), assisted ventilation, artificial nutrition and hydration but does not include
blood transfusions.
Non-voluntary euthanasia When a patient is incapable of forming an opinion on
euthanasia or unable to communicate any such opinion.
Substitute decision maker A person appointed to make decisions on behalf of
another who lacks the requisite mental capacity to make decisions for themselves. A
person may be appointed to the role formally through an instrument (e.g. enduring
guardianship form) or by order of a court or tribunal; or they may be appointed
informally via a hierarchy of decision makers as noted in guardianship legislation
(e.g. NSW Guardianship Act 1987 s33A).
Terminal illness An illness or condition that is likely to result in death. The ‘terminal
phase’ of such an illness is defined as ‘the phase of the illness reached when there
is no real prospect of recovery or remission of symptoms (on either a permanent or
temporary basis)’.3
Urgent treatment Treatment urgently needed by a patient to save the patient’s life; or
to prevent serious damage to the patient’s health; or to prevent the patient from
suffering or continuing to suffer significant pain or distress.4
Voluntary euthanasia When euthanasia is carried out at a competent patient’s
request. For example, a person’s life is ended through the withdrawal or withholding
of medical treatment at the patient’s request (passive euthanasia).
The dying patient
You are called to a case of ‘patient unwell’. Upon arrival you find a young female,
aged around 30, lying on her bed, the phone beside her and a piece of paper on
her chest. She is semi-conscious and, when she sees you, she says, ‘Good, you’re
here. I don’t want to be saved. Here are my directions,’ and passes you the paper
from her chest. On the table beside the bed is an empty bottle of ethylene glycol
(otherwise known as antifreeze). Her letter says the following:
To whom it may concern, if you attend to me because I have overdosed or made an
attempt on my life, I do NOT want any life-saving treatment to be given. I would
appreciate medicine to relieve my discomfort. I understand that refusing life-saving
treatment may result in my death. I refuse life-saving treatment knowing this. If I survive
the initial attempt but have resultant kidney failure, I do NOT consent to dialysis being
commenced.
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8 End-of-life care
The dying patient continued...
I only called the ambulance so that they could take me to hospital and make me
comfortable. I would also prefer to die in hospital and not at home alone. Thank you for
respecting my wishes.
(Adapted from Inquest into the Death of Kerrie Wooltorton, unrep, Norfolk County
Coroner’s Court, Armstrong J, 28 September 2009)
This chapter will introduce you to one of the key legal and ethical issues faced by
paramedics in their practice – end-of-life decision making.
Introduction
There is little doubt that, as the population ages, health resources will become
increasingly scarce, associated costs will continue to rise and the debate on the merits
of euthanasia will increase. There are 77,000 deaths from chronic terminal disease
in Australia each year.5 A percentage of patients who feel burdened with pain and
suffering consider ending their lives.6 In addition, there is a percentage of patients
who have not experienced pain and suffering yet but understand that, if they wait
until that point, they may physically require the assistance of someone else to assist
them to relieve their suffering and so seek to end their own lives prematurely, thus
avoiding the involvement of any other person in their death.7
It is well understood that the bulk of individual healthcare spending occurs in
the last few months of an individual’s life.8 According to a study by Lowthian et al,9
people aged over 85 accounted for 13.6% of ambulance transportations in 2007–
2008, and this was projected to increase substantially over the coming years. Kate-
laris argues that it is time to re-think how we manage the care of the elderly and
proposes some alternative models of care in the pre-hospital environment that
would assist in the better management of both patients and resources.8 One way in
which this management can be facilitated is to allow individuals to make known
their wishes regarding their end-of-life care. In an attempt to encourage this behav-
iour and to sanction it, state and territory governments have introduced legislation
and guidelines that enable the patient’s wishes, with regard to the care and treatment
they do not want, to be acknowledged and upheld by health practitioners (see
Appendix 8.1). However, state and federal laws differ with regard to the regulation
in this area. This chapter will provide a comparative overview of Australian law
and will examine the paramedic’s role in end-of-life decision making. This chapter
will also integrate the ethical considerations that accompany any discussion on the
end of life.
Background
In 1995 the Northern Territory became the first jurisdiction in the world to permit
doctor-assisted suicide. The Rights of the Terminally Ill Act 1995 (NT) provided legal
159
authority for a doctor to end the life of a terminally ill patient at their request. The
law has been described as ‘neither an unqualified “licence to kill” nor an unqualified
affirmation of a competent adult patient’s right to assistance in dying’.10
The first person to try to rely on the Act was 66-year-old Max Bell. He was suf-
fering from terminal stomach cancer. He travelled from his home in Broken Hill
to Darwin to die. The Act stipulated that he had to find three doctors to verify his
eligibility to utilise the provisions of the Act, but he was only able to find one. Max
returned home to Broken Hill to die of natural causes. Max Bell’s case highlights
the difficulties of implementing such an Act even if one were to be reintroduced
into Australia. Although the Northern Territory law was repealed by the federal
government in 199711, the Criminal Law Consolidation (Medical Defences – End of
Life Arrangements) Amendment Bill 201112 is currently (as this book goes to print)
before the South Australian parliament, and this may see the reintroduction of a
pro-euthanasia law in Australia. A study conducted in 1997 found that 1.8% of all
Australian deaths involved active voluntary euthanasia and physician-assisted
suicide.13 The study also revealed that the decision not to treat with the objective
of quickening death or not extending a patient’s life occurred in an estimated 24.7%
of all Australian deaths, and 14.3% of such deaths were preceded by a medical
decision. Of great concern is that only a tenth of these decisions were made at the
patient’s request.13 The results of the study highlight the dangers inherent within
the relatively unregulated practice of doctors making and acting on end-of-life deci-
sions, which is a system more open to abuse than a regulated, ethical voluntary
euthanasia scheme such as the application of advance care directives.
Apart from highlighting the power that doctors have to engage in such behaviour
and not be sanctioned for it, it suggests that a more strongly regulated and transpar-
ent euthanasia scheme might allow patients to make better choices with regard to
their end-of-life care while, at the same time, providing protection to those who do
not wish to die. In addition, it would offer some protection to practitioners working
in this area. The community largely favours the terminally ill having the right to
choose a medically assisted death.14 A 2010 poll revealed that three out of four
Australians support legalising euthanasia.15 However, there is a segment of the com-
munity that remains reluctant to support it, and this includes the Australian Medical
Association and various religious groups.16
As a result of acknowledging that 1) there is a segment of the community that
wants to have some control over the time and way in which they die but that their
choices in this area are currently limited and 2) healthcare resources are finite, there
has been a move in recent years to increase the use of advance care directives (ACD)
to inform health practitioners about a patient’s preferences with regard to end-of-life
care. Indeed, case law suggests that, particularly in those cases where a patient is
refusing life-sustaining treatment and has a valid and applicable advance directive,
the court will prioritise upholding the autonomy of the patient over the preserving
of a life.17
ACDs offer an opportunity for competent adults to outline their wishes with
respect to what health care they refuse to consent to at some future time when their
capacity may be lost. The legal authority for ACDs comes out of the common law
and is now also found in much legislation.18 Despite legislation facilitating written
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8 End-of-life care
and oral advance directives, government-funded research projects and a plethora

of official policies promoting them, very few elderly or terminally ill patients
make advance directives in Australia.19 However, ACDs offer some choices to people
regarding their end-of-life care and, at the very least, promote discussion of these
difficult issues within families and communities.
Advance care directives

There are statutory provisions in six Australian states and territories that set out the
requirements of a valid advance directive. The purpose of legislating this area is
captured in the South Australian Act, which sets out the objects of the law as follows:
a. to make certain reforms to the law relating to consent to medical
treatment –
i. to allow persons of or over the age of 16 years to decide freely for
themselves on an informed basis whether or not to undergo medical
treatment; and
ii. to allow persons of or over the age of 18 years to make anticipatory
decisions about medical treatment; and
iii. to provide for the administration of emergency medical treatment in
certain circumstances without consent; and
b. to provide for medical powers of attorney under which those who desire to
do so may appoint agents to make decisions about their medical treatment
when they are unable to make such decisions for themselves; and
c. to allow for the provision of palliative care, in accordance with proper
standards, to people who are dying and to protect them from medical
treatment that is intrusive, burdensome and futile.20
The Victorian, Western Australian and Australian Capital Territory21 laws allow
refusal for any treatment but, in the Northern Territory, Queensland and South
Australia, the laws can only apply to a patient who is terminally ill or permanently
unconscious.22
New South Wales currently lacks any formal legislation relating to end-of-life
decisions but it does have non-binding guidelines that indicate that an ACD should
be considered as sufficient authority for a medical treatment decision provided that
it is specific to the disease or injury relevant to the decision, current and made by
a competent individual.23
To date Tasmania has not legally attempted to address the topic of ACDs and so
possesses no legislation either allowing directives to be made or followed. (See
Appendix 8.1 for the specific requirements in each jurisdiction.)
In essence, there are two key requirements for an advance directive to be consid-
ered valid.24 They are:
1 The maker of the directive must be competent. (The elements of

competence were discussed in Chapter 6, ‘Consent and refusal of
treatment’.)
2 The maker of the directive must make the direction freely.
161
The introductory case, ‘The dying patient’, gives us the opportunity to explore
some of the issues likely to be faced by paramedics in this area. For example, you
might consider the following:
1 Should we uphold the patient’s request as it is listed in her directive?
2 Is the directive that the patient has given you ‘legal’ or ‘legally
enforceable’?
3 What would happen if you did uphold it and the patient died?
4 What would happen if you didn’t uphold it and saved the patient’s life?
These are all valid and sensible questions to ask. Question 1 captures well the
ethical problem at the heart of this case, as discussed in the PRECARE decision-
making model introduced in Chapter 3, ‘PRECARE – an ethical decision-making
model for paramedics’. And the answers to questions 2, 3 and 4 are facts a paramedic
would ideally uncover as part of the reconnaissance stage of the PRECARE model.
Competence
If we assume that Ms Wooltorton was legally competent when we arrived and she
stated to the paramedics, ‘I don’t want to be saved, here are my directions’, the
question of the validity of the directive is essentially irrelevant because the patient
is 1) presumed to be competent and 2) has stated that she does not want treatment.
Therefore, her wishes should be upheld. It should be noted that paramedics may
encounter patients who, unlike Ms Wooltorton, are not able to give verbal direc-
tions as to the care they refuse to consent to because capacity has already been lost.
This is where a written directive would come into effect.
You will recall from the section on ‘Consent’ in Chapter 6 that an adult patient
is presumed to be competent, and the onus is on the health practitioner to dem-
onstrate that the patient is not. In the case of an advance directive, the patient must
have had competence at the time of writing it, and the directive only applies once
the patient loses competence. If the paramedics were to treat Ms Wooltorton under
these circumstances, they may be guilty of committing the tort of trespass, assault
and battery. This tort stands between the individual and others with respect to
individual bodily inviolability and upholds the principle of the autonomy of the
person, personal security, physical integrity, dignity, control and self-determination.25
That is, a person must seek consent before touching another or else be guilty of
trespassing upon that person. If this occurred, it is a course of action that the patient
would have to pursue at some later time post-recovery, as Mrs Scholendorff did in
Case 8.1.
Directive made voluntarily

Paramedics commonly operate under high pressure, time-critical conditions. In
these circumstances it is not always possible to verify the veracity of documentation
provided by patients, their family or carers. In other words, determining whether
or not the directive was made voluntarily is virtually impossible. Again, the case law
provides us with some indication of how we should proceed here. In the NSW case
of Hunter v New England Area Health Service, a patient had completed a document
called a ‘worksheet’. This document was not signed, but it contained a refusal of
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8 End-of-life care
Case 8.1
Schloendorff v society of New York hospital
Mary Schloendorff consented to having a fibroid tumour examined under an
anaesthetic at New York Hospital. She did not consent to having the tumour
removed. The doctor making the examination found the tumour to be malignant
and proceeded to remove it. Mrs Schloendorff brought a case against the doctor
for battery. After finding the doctor had committed a battery, the judge deciding
the matter, Justice Cardozo, stated:
Every human being of adult years and sound mind has a right to determine what shall be
done with his own body; and a surgeon who performs an operation without his patient’s
consent commits an assault for which he is liable in damages. This is true except in
cases of emergency where the patient is unconscious and where it is necessary to
operate before consent can be obtained.
consent to undertake renal dialysis. He was later admitted to hospital with kidney
failure and placed on dialysis. The hospital brought the case to court to ascertain
whether or not they could or should withdraw that treatment in light of the contents
of the ‘worksheet’. Justice McDougall took the view that the document should be
followed saying that there should not be ‘an over-careful scrutiny’26 of the language
used and to do so may undermine the autonomy of the patient. McDougall also
said ‘that the individual acted freely and voluntarily, and intended his or her deci-
sion to apply to the situation at hand’, and as such the refusal should be followed.27
NSW does not have legislation prescribing the form of the ACD as other jurisdic-
tions do but, nevertheless, the statutory provisions contained therein do not extin-
guish the patient’s common law right to make a contemporaneous refusal of
treatment. In other words, there is no requirement that a refusal has to be written
or made in advance. If, for example, Ms Wooltorton had allowed the paramedics
to treat her but upon arrival at the hospital had decided to withdraw her consent
for treatment, this refusal would have had to be respected by the treating staff unless
they could demonstrate that she had lost capacity. Likewise, the legislation does not
make the advance directive binding. It can be revoked at any time.
Liability of staff
There is justifiably concern amongst healthcare staff surrounding the ambiguity of
their position with regard to upholding (or not) an ACD. This is particularly acute
in NSW and Tasmania where no legislation exists to protect staff28 and has been
compounded by case law that has found that healthcare staff may be liable for
treating a person who has refused consent for treatment29 and liable for not treating
a patient who was refusing treatment but was not competent to do so.30 The ACT31
law says that if a health professional, or a person acting under the direction of a
health professional, makes a decision that they believe on reasonable grounds com-
plies with the Act or honestly acts to withhold or withdraw treatment from a person
163
based on a reliance on a decision made by that person, the withholding or

withdrawing of treatment is not a breach of professional etiquette or ethics or a
breach of a rule of professional conduct, and no civil or criminal liability will be
incurred.
Victoria32 provides protection for staff who act in good faith on the reliance of
a refusal of treatment certificate but who are not aware that the certificate has been
cancelled.
The South Australian33 and Northern Territory34 Acts say that a ‘medical practi-
tioner responsible for the treatment or care of a patient, or a person participating
in the treatment or care of the patient under the medical practitioner’s supervision,
incurs no civil or criminal liability for an act or omission done or made with the
consent of the patient or the patient’s representative or without consent but in
accordance with an authority conferred by this Act or any other Act; and in good
faith and without negligence; and in accordance with proper professional standards
of medical practice; and in order to preserve or improve the quality of life’.
Western Australia has no protection written into the legislation. Queensland’s
Powers of Attorney Act says:
…if a health provider has reasonable grounds to believe that a direction in an advance
health directive is uncertain or inconsistent with good medical practice or that cir-
cumstances, including advances in medical science, have changed to the extent that
the terms of the direction are inappropriate [then] the health provider does not incur
any liability, either to the adult or anyone else, if the health provider does not act
in accordance with the direction.
However, if an attorney is appointed under the advance health directive, the health
provider has reasonable grounds to believe that a direction in the advance health
directive is uncertain only if, among other things, the health provider has consulted
the attorney about the direction.35
The Australian judicial system has been reluctant to engage in a dialogue address-
ing the uncertainties that still exist within much of the current law on end-of-life
decisions36 and, as such, informing paramedics about how they should approach
this difficult area of their practice in a definitive way is not possible but, in general
terms, a paramedic should rely on their clinical guidelines.
Clinical practice guidelines

In the Wooltorton case, there was no question as to the validity of the directive
because the paramedics could determine that the patient was competent and refus-
ing consent by talking with her. They had the additional benefit of the written
directive to confirm her wishes. If they were in doubt as to the validity of the direc-
tive (for example, did she in fact write it, was she free from undue influence while
writing it, was she competent at the time, has she since revoked it or changed her
mind?), the legislation provides a relief from liability for ‘health professionals’ who
have acted in accordance with it on the assumption that it is valid or have acted
against it because they formed a reasonable belief that the directive had been revoked
or does not comply with the relevant law.37 The issue here is, as it is in other areas
of law, whether paramedics are considered to be ‘health professionals’.
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8 End-of-life care
Ambulance Victoria makes it clear in their clinical practice guidelines (A0203)

how a case like this should be handled. It says:
Under the Medical Treatment Act 1988 a person acting under the direction of a
Registered Medical Practitioner [i.e. a paramedic], who, in good faith and in reliance
on a Refusal of Treatment Certificate, refuses to perform or continue medical treat-
ment, is not guilty of professional misconduct or guilty of an offence or liable in
any civil proceedings because of the failure to perform or continue that treatment.
In summary, a competent adult has the lawful right to refuse medical treatment,
even it will result in their death. To treat in the face of a refusal is to commit an
offence. In Ms Wooltorton’s case it was determined that she had exercised her right
as a competent adult to refuse treatment knowing that it would result in her death,
and this decision was respected by the health practitioners who attended her.
However, if Ms Wooltorton had not been competent and the paramedics were
uncertain as to the validity of the directive, or had no way of establishing her wishes,
or if there was no surrogate decision maker available to consult and there was a
requirement to act urgently in order to save her life and prevent further harm, the
paramedics should treat.
Lack of capacity and surrogate decision makers

Another method by which the patient can exercise their autonomy with regard to
medical treatment decision making is via a surrogate decision maker, power of
attorney or guardian. These terms, like the terms referring to advance directives,
differ depending on which jurisdiction you are in. South Australia, Victoria and the
Australian Capital Territory have laws that enable a competent adult (‘the principal’)
to execute an enduring power of attorney, under which the principal appoints
another adult (‘an agent’ or ‘enduring guardian’) to make decisions about the prin-
cipal’s medical treatment in the event that the principal becomes incompetent.
Thus, through the agent the principal effectively has a legal means of refusing
medical treatment with the caveat that the refusal is consistent with the wishes of
the principal and does not conflict with any instructions provided by the principal
or embodied in the legislation in the power of attorney document while they were
competent.38 In effect, the power of attorney legislation facilitates the indirect deci-
sion making of the principal prospectively. Notably, the legislation does not displace
the competent principal’s capacity to give other forms of binding anticipatory
refusal for undesired medical treatment.
What happens if there is no ‘default decision maker’ appointed?

There are occasions where no guardian or health attorney has been appointed by a
person to make health care decisions on their behalf once they become incompetent
to do so themselves. The subjective needs of an individual are difficult to evaluate
in situations where a patient is incapable of giving consent to medical procedures,
particularly by healthcare staff who do not know the patient and what their wishes
might be with regard to their healthcare treatment. Healthcare staff also have limited
legal authority to act to treat (or refuse to treat a patient) without the patient’s
consent. The law therefore has allowed for the authority regarding healthcare
165
decision making of an incompetent person to be transferred to a person who is

more likely to have a better understanding of what the patient’s wishes might be.
In Australia, legislation in different states generally requires that health practitioners
approach a hierarchy of next of kin to act as a surrogate decision maker to act in
the best interests of the patient if one has not been appointed by the patient. It is
thought that this role is best undertaken by someone who knows the patient well
and can act as a ‘surrogate’ decision maker, who, in effect, can make decisions as
the principal would have if they were still competent to do so. This ‘default decision
maker’ is generally the ‘first person reasonably available and willing to act from a
statutory list of people’.39
The parliaments have passed laws that allow authority to be transferred under
conditions where a person loses competence. In these circumstances the law in
NSW defers to the Guardianship Act 1987 (NSW) which applies to incapable
persons above the age of 16.40 It functions by providing for proxy consent by an
appointed guardian or, where one is not available, another ‘person responsible’.40
The ‘default decision maker’ is determined by a descending hierarchy of suitable
persons. Priority is given to a spouse where there is a strong, long relationship, then
the carer and, where no carer or spouse is available, the person responsible role is
assigned to a close relative or friend.41 This statutory scheme only permits the person
responsible to make decisions on the principal’s behalf where there is a positive
action of consent to medical treatment. Prima facie it fails to be a device by which
refusal or discontinuation of treatment can be used and so, arguably, cannot be
utilised as a form of advance care directive achieved via previous communication
in the course of a relationship. In WK v Public Guardian [2006] ADT 93 it was
identified that another means of recourse, by which the guardian might be granted
the power of refusal or discontinuation of treatment on behalf of their charge,
would be through an application to the NSW Supreme Court for an assessment
of the patient’s best interests under parens patriae jurisdiction.42 The Supreme
Court’s parens patriae jurisdiction allows the court to make decisions on behalf of
those who cannot make decisions for themselves. Parens patriae is Latin for ‘parent
of the people’.
Victorian common law is somewhat more liberal than that of NSW. This can be
seen in Gardner; re BWV [2003] VSC 173 where the court ruled that it was the
parliamentary intention of the Victorian Guardianship and Administration Act 1986
that refusal of treatment for a ward be a power that the guardian is authorised to
give. Re BWV, Ex parte Gardner also restated the common law position supporting
the authority of a doctor to legally withdraw nutrition and hydration where it is
considered to be in the patient’s best interests.43
Qumsieh v Guardianship and Administration Board was one case that sought to
resolve the dilemma of guardians possessing the authority to override patient ACDs
for the refusal of specific treatment.44 There was no definitive ruling from the court
on this issue, so the authority of the guardian to override an ACD is unsettled.
Appendix 8.1 outlines the various instruments and terms used to describe default
decision makers, including ‘enduring guardians’ or ‘health attorney’, in each state
and territory. Paramedics may come into contact with a surrogate decision maker
who has not been appointed via a formal instrument or document. This person has
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8 End-of-life care
become the decision maker as a result of circumstance and, most commonly, falls
under the authority of the relevant Guardianship Act (see ‘NSW’ in Appendix 8.1
by way of example). Guardianship is discussed further in Chapter 6, ‘Consent and
refusal of treatment’.
What is the difference between passive euthanasia and

withdrawing treatment and voluntary euthanasia aiding
and abetting a suicide and involuntary euthanasia, and
why should paramedics know it?
There can be confusion over the terms used when describing end-of-life care.
Euthanasia is an all encompassing term that is often used to describe legal and
illegal behaviour and so is not particularly helpful when discussing the law at the
end of life. We already know that a patient can refuse life-saving treatment pro-
vided they are competent to make that decision, or a proxy decision maker can be
authorised to make decisions regarding an incompetent patient’s health care. An
ACD refusing life-saving treatment is an example of a competent patient commit-
ting suicide which, as we have discussed, is lawful. Passive euthanasia is the with-
drawal or withholding of treatment that results in the patient’s death, and this may
be as a result of following a patient’s ACD or it may be as a result of doctors deter-
mining that further treatment is futile (this is discussed in more detail later in this
chapter). In short, both of these mechanisms are lawful.
Voluntary euthanasia is a competent person requesting to be killed, which is
unlawful because aiding and abetting a suicide is unlawful, so any provision of
assistance to die is illegal. Involuntary active euthanasia is also known as man-
slaughter and murder and attracts criminal liability in all states and territories of
Australia. Each state and territory of Australia has legislation to the effect of it
being ‘unlawful to kill any person unless such killing is authorised or justified or
excused by law.’45 The specific elements of murder include that the conduct engaged
in is intentional; or there exists reckless indifference to human life; and death of
another occurs.46 Manslaughter is a residual homicide charge available if murder is
not satisfied on the facts; or where the requisite intention is lacking; or where the
death results by way of reckless or negligent conduct.47 In short, paramedics are
not able to assist a patient to die even if the patient is requesting that type of assis-
tance (active) unless that patient competently refuses to consent to treatment by
paramedics (passive).
Pain relief and hastening death

Paramedics should be conscious of the fact that studies show patients are routinely
administered respiratory depressive opioids by health practitioners as ‘pain relief ’.
These drugs have the potential to hasten death.48 Some health practitioners are
reluctant to administer these doses of opiates because they believe their action will
result in the patient’s death, for which they do not want to be held accountable.
The issue to be considered here is the intention of the health professionals behind
their act. Providing a patient with pain relief that has the primary intention of
relieving pain but may have the incidental effect of depressing respiratory function
167
is considered ethical and is commonly justified via reliance on the ‘doctrine of

double effect’. The doctrine of double effect in short means that an action is argu-
ably ethical if it produces a harm as a result of an attempt to limit a greater harm.
So, for example, if a patient had a gangrenous leg that needed to be amputated to
save the patient’s life, the amputation would produce a harm to the patient. But
if the leg was not amputated, the patient would be subject to the greater harm
of death.
Some jurisdictions have legislated for the provision of palliative care with pro-
tection against liability for carers even though an incidental effect of the treatment
is to hasten the death of the patient. For example, with regard to the care of
people who are dying, the South Australia Act49 says that no civil or criminal
liability will be incurred by a doctor or ‘a person participating in the treatment
or care of the patient’ under a doctor’s supervision, when administering ‘medical
treatment with the intention of relieving pain or distress’ provided it is adminis-
tered in ‘good faith’ and ‘without negligence’ and ‘in accordance with proper
professional standards of palliative care’ and ‘with the consent of the patient or
the patient’s representative’.
A problem arises when the primary intention is not to reduce pain and suffering
but rather to kill the patient either with or without the patient’s consent. Studies
like Kuhse and Singer’s study demonstrate that some doctors administer this form
of ‘pain relief ’ with the primary purpose of assisting the patient to die. This is
unlawful, whether or not the practitioner has the patient’s permission. Kuhse and
Singer found that many staff were administering this treatment without even both-
ering to discuss it with the patient and/or their guardian first. This is homicide and
it is unlawful.
Mercy killing
Mercy killing is an act of non-voluntary euthanasia. It differs from aiding and
abetting a suicide because it is involuntary, that is, it is not consented to by the
patient. In other words, it is a form of homicide but it is usually carried out by
someone close to the victim. The Australian courts have been inconsistent in rela-
tion to mercy killing crimes. In R v Maxwell [2001]50 and R v Hood [2002] 51, both
defendants received suspended sentences. Coldrey, who presided over both cases,
commented:
The law may be seen as life-affirming and not life-denying and directed at discourag-
ing suicide as a response to the emotional vicissitudes of life. The degree of moral
blame attributable to a person who assists or encourages an act of suicide may vary
greatly from case to case. At one end of the spectrum may be placed a person who
assists or encourages a person to commit suicide in order to inherit property or for
some other ulterior motive; at the other end, there is the individual who supplies
potentially lethal medication to a terminally ill person, perhaps a loved one who is
in extreme pain and who wishes to end that suffering at the earliest possible
opportunity.50
He went on to say that there existed such situations where ‘justice may be tem-
pered with mercy’, such that minimal punishment might be imposed where the act
is performed out of kindness.50
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8 End-of-life care
Aid, abet, assist suicide

The common law of Australia has transitioned from seeing suicide as indicative of
mental illness to accepting it as a situation where possible psychiatric or psychologi-
cal issues may exist but not necessarily to the extent that testamentary capacity is
extinguished.52 This shift in thinking facilitated the move to have suicide decrimi-
nalised in all states.53 Queensland, Tasmania and Western Australia’s criminal legisla-
tion and codes omit suicide as an offence.
However, Western Australia and Queensland hold that aiding suicide is a crime
where ‘a person procures, aids or counsels to induce another to kill themselves’.54
The Tasmanian Criminal Code is more succinct in the language, finding it a crime
for either instigating or aiding another to kill himself.55 South Australia, New South
Wales, Victoria and the Australian Capital Territory use near identical discourse in
finding an indictable offence where a person ‘aids, abets or counsels the suicide of
another, or an attempt by another to commit suicide’.56 However, South Australia
takes the offence one step further in finding that actions of ‘fraud, duress or undue
influence’ that procure suicide or an attempted suicide are crimes of murder or
attempted murder, depending on the circumstance.57 The Northern Territory leg-
islation is much like that of NSW and the ACT; however, it omits the language of
‘abetting’ or ‘counselling’ and complicates the offence by requiring that the accused
have intended his or her conduct to assist the other to commit suicide.58
As paramedics, we might be asked by our patients to assist them to die, or we
might believe that the patient would be better off dead. This is simply not something
that we can lawfully assist our patients with, no matter whether we feel compassion
towards our patients and wish to relieve their pain and suffering; no matter that
the patient is terminally ill and will die anyway and, thus, our actions are only
hastening the inevitable or imminent; and no matter that the patient is competent,
is informed of the benefits and risks of their choice and is making the choice vol-
untarily (i.e., without coercion). None of those factors are relevant according to
Australian law. Remember, the competent patient’s rights to self-determination with
regard to ending their life only go as far as:
1 committing suicide themselves, alone, unaided, unassisted and without
support from others; and
2 refusing medical treatment that they have been given that may have the
effect of extending their lives but, once withdrawn, will have the effect of
ending their lives. Medical treatment includes artificial ventilation,
hydration and nutrition and cardiopulmonary resuscitation.
Regardless of the language used, all legislation prohibits a health carer, including
a paramedic, from taking active steps to intentionally bring about a patient’s death.
Such actions attract a criminal penalty from 5 years to life imprisonment.
Consider Case 8.2.
In this case it is necessary for the paramedic to determine a number of things.
What can you lawfully do in this situation? What does your duty of care extend
to? Who has the legal authority to make decisions with regard to the patient and
his care? What are the potential consequences of the action or inaction for
paramedics?
169
Case 8.2
I want him to die
You are called to a nursing home where you find an elderly woman sitting beside
a bed with a man in it. She says it is her husband. The man is groaning and is in
obvious respiratory discomfort. You know that you could administer morphine to
relieve his discomfort and ease his breathing. His wife says, ‘I want him to die’.
Futile treatment
Most ambulance services have clinical guidelines that state when treatment can be
withheld from a patient. For example, resuscitation need not be commenced on a
patient with injuries that are incompatible with life (e.g. decapitation). For example,
Ambulance Victoria CPG A0203 outlines the guidelines for ‘withholding and/or
ceasing pre-hospital resuscitation’. It says that resuscitation may not be given where
injuries are incompatible with life but also where an adult (18 years or older) is
found by paramedics in asystole and the time since collapse and paramedic arrival
is greater than 10 minutes and there is no other clinical reason to continue (e.g.
hypothermia, drug overdose or a family member/bystander requests continued
efforts). This mirrors the position at law that there is no obligation on the state or
their servants to treat a patient where treatment would be futile – ‘where there are
no reasonable prospects of a return to a meaningful quality of life’.59
For example, there is no obligation on a paramedic to give a patient morphine
merely because the patient demanded it but there was no clinical indication for it.
An example of futile treatment is given in Case 8.3.
Some senior Australian doctors still refuse to make not-for-resuscitation orders
despite manifest and accepted futility of treatment for the patient in question,
owing to irrational fears of legal liability.21 If treatment is declared clinically futile
and treatment is withdrawn or withheld, the cause of the patient’s death is noted
on the medical record and death certificate as the disease process or injury that
was the underlying causative factor. The South Australian legislation says the
following:
Section 17 – The care of people who are dying

1 A medical practitioner responsible for the treatment or care of a patient in the
terminal phase of a terminal illness, or a person participating in the treatment
or care of the patient under the medical practitioner’s supervision, is, in the
absence of an express direction by the patient or the patient’s representative
to the contrary, under no duty to use, or to continue to use, life sustaining
measures in treating the patient if the effect of doing so would be merely to
prolong life in a moribund state without any real prospect of recovery or in a
persistent vegetative state.
2 For the purposes of the law of the State –
a. the administration of medical treatment for the relief of pain or distress in
accordance with subsection (1) does not constitute an intervening cause1
of death; and
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8 End-of-life care
Case 8.3
Futile treatment
Mr Isaac Messiha was a 75-year-old man with a history of chronic obstructive
pulmonary disease, a history of cardiac surgery and a hospital admission following
a cardiac arrest in early 2004. In October 2004 he suffered an out-of-hospital
asystolic cardiac arrest. It was estimated that Mr Messiha was without oxygen for
up to 25 minutes prior to the arrival of paramedics. Mr Messiha had no advance
directive so paramedics commenced cardiopulmonary resuscitation. Mr Messiha
was admitted to the ICU of St George Hospital. Over the following days his
Glasgow coma score did not climb above 5. An electroencephalograph (ECG)
showed the complete absence of cortical activity. The patient was mechanically
ventilated, required constant suctioning, was incontinent of faeces, had an
indwelling catheter and was being fed via a nasogastric tube. Mr Messiha’s
family were told by the medical director of the ICU, Dr Theresa Jacques, that
there was no reasonable prospect of Mr Messiha returning to a meaningful quality
of life and that it was in the best interests of the patient that treatment be
withheld. ‘Treatment’ to be withdrawn and withheld included removal from the
ventilator, no further pharmacological treatment and a DNR order in the event of a
cardiac or respiratory arrest. The relatives believed that Mr Messiha was making
meaningful eye movements and sought an order from the Supreme Court that the
withdrawal of treatment be stayed. The court agreed with the doctors and
treatment was withdrawn.60
b. the non-application or discontinuance of life sustaining measures in

accordance with subsection (2) does not constitute an intervening cause1
of death.61
What is the definition of death and what happens to a dead body?

Death is defined by law as the:
• irreversible cessation of all function of the person’s brain, or
• irreversible cessation of circulation of blood in the person’s body.62
There is a requirement under all state and territory laws that notification of the
death of a person be made to the relevant authority. In the case of a ‘reportable’
death, the death must be reported to the police who will then report to the
coroner.63 The body should be transported by the coroner or, if in a rural setting,
the body may need to be transported to the local morgue by ambulance. If the
death is not unexpected, then the paramedic should endeavour to contact the
patient’s doctor to ask if they will sign a death certificate. Once the certificate is
signed, the body can be released to the funeral director for collection. If the doctor
is unwilling or unable to do so, the death should be reported to the police for them
to follow up.
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End-of-life decision making and the freedom to choose –

food for thought
Broader issues on the relief of suffering, the right to die, the role of religion and
the limits of the state’s authority in these matters were considered by Ronald
Dworkin, an American legal philosopher, in his book, Freedom’s Law: The Moral
Reading of the American Constitution.64 Dworkin considers the case of Nancy Cruzan,
who was involved in a car accident that left her in a permanent vegetative state. She
was fed and hydrated through tubes and her parents and husband continued to
hope that she would recover. When it became apparent that she would likely remain
in this state for the rest of her life, some 30 years or more, her parents as her legal
guardians asked that the tubes be removed and she be allowed to die. The hospital
refused to do so without a court order. The court granted the order on the basis
that it was in Cruzan’s best interest that she ‘be permitted to die with dignity now
rather than to live on in an unconscious state’.64 The decision was overruled by a
superior court who found that, unless Cruzan herself had provided ‘clear and con-
vincing’ evidence that she would not have wanted to continue to live as she was,
they could not withdraw the treatment. Her parents appealed to the United States
Supreme Court where Chief Justice Rehnquist, joined by Justices Kennedy and
White, wrote that for the purposes of the Cruzan case they assumed that there was
a hypothetical right to die but that there was still a question as to whether ‘even a
competent person’s freedom to die with dignity could be overridden by a state’s own
constitutional right to keep people alive’. Rehnquist wrote that a ‘living will’ would
embody the rights of the competent person to make such decisions for themselves
but that it was legitimate for states to regulate the requirements of a valid will. It
was also noted that some people prefer to nominate a surrogate decision maker
instead of scribing their wishes and this, too, was recognised as a valid instrument
to convey an incompetent person’s end-of-life wishes. With respect to religion and
faith, Justice Stevens in dissent examined the religious basis of the Missouri Supreme
Court’s decision and said, ‘Not much may be said with confidence about death
unless it is said from faith, and that alone is reason enough to protect the freedom
to conform choices about death to individual conscience’.64 Dworkin concluded by
saying that one reading of the US constitution allows for individuals to make their
own decisions with regard to this issue as it is at the core of liberty, further arguing,
‘making someone die in a way others approve, but he believes contradicts his own
dignity, is a serious, unjustified, unnecessary form of tyranny’.64 The balance is in
ensuring that the law protects those who may be abused by this system but also
enables those individuals, who wish to exert it, the authority and process by which
they can make their own choices regarding their own death.
Conclusion
This chapter has discussed the various mechanisms by which end-of-life issues are
discussed and decisions authorised under various Australian state and territory laws.
This is an area that will continue to grow in importance as the population increases
and places more pressure on limited healthcare service resources, including ambu-
lance care. It is vital that paramedics have a solid understanding of their legal
authority to act under the law that applies to their practice with regard to these
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8 End-of-life care
issues in order that they uphold the law but, perhaps more importantly, that
they uphold the autonomous choices of their patients with regard to their end-of-
life care.
Review questions
1 Can a patient refuse treatment that will lead to their death?
2 Is assisting suicide unlawful?
3 Can patients/families demand treatment when treatment is futile?
4 Can paramedics accelerate the dying process?
5 What is the legal definition of death?
Appendix 8.1
Provisions for advance care directives and the appointment
of a decision maker
Provision Details
There are three different
health-related advance
directives in South Australia
Consent to Medical Treatment A person of or over 18 years of age may, while of sound mind, by
and Palliative Care Act 1995 medical power of attorney, appoint an agent with power to make
(SA) decisions on his or her behalf about medical treatment.
ACD referred to as ‘anticipatory A medical agent is only entitled to act under a medical power of
grant or refusal’ attorney if –
Default decision maker referred (a) the agent produces a copy of the medical power of attorney
to as ‘medical power of for inspection by the medical practitioner responsible for the
attorney’ treatment of the grantor of the power; and
(b) the medical agent is not disqualified from acting under the
medical power of attorney1; and
(c) the medical agent is of full legal capacity.
The appointment must be made in the form prescribed by
regulation and must be witnessed by an authorised witness who
completes a certificate in the form prescribed by regulation or in
a form to similar effect. The medical attorney must be over 18
years of age.
If a person by whom a direction has been given under this section
is in the terminal phase of a terminal illness or in a persistent
vegetative state; and is incapable of making decisions about his
or her medical treatment; and there is no reason to suppose that
the person has revoked, or intended to revoke, the direction, then
the direction should be upheld.
173
Appendix 8.1
of a decision maker continued...
Provision Details
A person is not eligible to be appointed an agent under a
medical power of attorney if that person is, in a professional or
administrative capacity, directly or indirectly responsible for or
involved in the medical care or treatment of the person by whom
the medical power of attorney is to be given and, if a person who
is validly appointed as a medical agent becomes so responsible
or involved, the person is disqualified from acting as a medical
agent under the medical power of attorney.
A medical power of attorney can make decisions about the
medical treatment of the person who granted the power if that
person is incapable of making decisions on his or her own behalf;
but does not authorise the agent to refuse the natural provision
or natural administration of food and water; or the administration
of drugs to relieve pain or distress; or medical treatment that
would result in the grantor regaining the capacity to make
decisions about his or her own medical treatment unless the
grantor is in the terminal phase of a terminal illness.
If the grantor of the power has also given
an anticipatory direction the attorney must act consistently with
the direction, and subject to those requirements, in what the
agent genuinely believes to be the best interests of the grantor.
The grantor of a medical power of attorney may, on regaining
capacity to make decisions about his or her medical treatment,
vary or revoke any decision taken by the medical agent during the
period of incapacity.
Anticipatory Direction ’This document provides a way of legally recording a person’s
Schedule 2 – Consent to wishes and directions about end of life decisions. It allows a
MedicalTreatment and person to record the kind of treatment he or she wants, or does
Palliative Care Act 1995 (SA) not want, if he or she is in the terminal phase of a terminal
illness or in a persistent vegetative state. It does not involve the
appointment of another person, and must be followed by those
responsible for the person’s medical care.’1
Enduring Power of ’This document allows the appointment of an enduring guardian
Guardianship to make lifestyle and medical treatment decisions. It also allows
Guardianship and a person to record his or her wishes in relation to lifestyle
Administration Act 1993 (SA) decisions and medical treatment.’1
Natural Death Act 1988 (NT) Resembles closely that of the South Australian Act in allowing
ACD referred to as ‘directive’ competent terminally ill persons to make written directives for
the refusal of ‘extraordinary measures’2; however, it omits the
process for the appointment of an agent under an enduring
power of attorney.
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8 End-of-life care
Appendix 8.1
Provision Details
Medical Treatment Act 1988 Allows for advance care directives solely by way of a ‘refusal of
(Vic) treatment certificate’ subsequent to the patient’s oral, written or
ACD referred to as ‘refusal of otherwise communicated request.
treatment certificate’ The treatment refused must be for a current condition.
Default decision maker referred Certificate must be made voluntarily and be witnessed by both
to as ‘person responsible’ a doctor and another person who are satisfied of the patient’s
adequate understanding of the consequences of such a decision.
A doctor who does not comply with the refusal of treatment
certificate becomes liable for medical trespass.
The Medical Treatment Act 1988 (Vic) was amended in 1990 and
1992 to permit the appointment of agent and alternate agent
in the presence of a justice of the peace and others by way of
enduring power of attorney provisions.
Power is acquired by the alternate agent only upon the
unavailability, death or incompetency of the original agent.
The agent is refrained from refusing palliative care and confined
in his/her power to treatments which the agent considers the
principal
A certificate of refusal of treatment is demanded for any
decisions of the agent.
The advance directive self terminates should the principal’s
condition change in such a manner that the directive is not
applicable to the current condition.
The Medical Treatment (Health A person of sound mind and a minimum of 18 years of age can
Directions) Act 2006 (ACT) make a ‘direction’ to refuse or withdraw medical treatment.
ACD referred to as ‘health ‘Medical treatment’ is defined for these purposes as the carrying
direction’ out of an operation, the administration of a drug or the carrying
Default decision maker referred out of any other medical procedure.
to as ‘health attorney’ A person has no statutory right to refuse palliative care.
‘Palliative care’ is defined to include ‘the provision of reasonable
medical procedures for the relief of pain, suffering and
discomfort’ or ‘the reasonable provision of food and water’.
A patient has a right to receive relief from pain and suffering ‘to
the maximum extent that is reasonable in the circumstances’.
In providing relief from pain and suffering, a health professional
must ‘pay due regard to the patient’s account of his or her level
of pain and suffering’.
A health direction can be made in writing, orally or in any other
way in which he or she can communicate.
175
Appendix 8.1
Provision Details
The form must be signed by the person making the direction (or
by someone else instructed to do so by that person, and in that
person’s presence). The signature must be witnessed by two
other people.
A direction that is not written is not valid unless it is witnessed
by two health professionals present at the time the direction is
made. One of these must be a medical practitioner.
A refusal of medical treatment ‘must be for a current condition’.
A person can revoke his or her direction to refuse or withdraw
medical treatment at any time.
A direction automatically ceases to have effect if the person’s
medical condition has changed to such an extent that the condition
in relation to which the direction applied is no longer current.
Where the person who made the direction refusing medical
treatment is still competent, a health care professional must
take a number of steps before complying with a direction
relating to that person’s medical treatment. First, the health
care professional must take all reasonable steps to ensure that
the person has been informed about: the nature of the illness;
any alternative forms of treatment that may be available; the
consequences of those alternatives; and the consequences of
remaining untreated. Secondly, the health professional must
then believe that the person has understood this information,
weighed the various options and concluded that the direction still
expresses his or her wishes concerning treatment.
A health care professional who withholds or withdraws medical
treatment from a person is immune from civil liability, criminal
liability and professional disciplinary action in connection
with the withholding or withdrawal, provided the health care
professional has acted in reliance on a decision by the person
that he or she believes on reasonable grounds complies with this
legislation.
An agent may be appointed to make medical decisions under an
enduring power of attorney but their power is only realised when
the doctor declares the principal incapacitated.
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8 End-of-life care
Appendix 8.1
Provision Details
Powers of Attorney Act 1998 If an adult has impaired capacity for a health matter and the
(Qld) adult has made an advance health directive giving a direction
Guardianship and about the matter, the matter may only be dealt with under the
Administration Act 2000 direction.
ACD referred to as ‘advance A consent to the withholding or withdrawal of a life-sustaining
health directive’ measure for the adult cannot operate unless the adult’s
Default decision maker referred health provider reasonably considers the commencement or
to as ‘statutory health attorney’ continuation of the measure for the adult would be inconsistent
with good medical practice.
(1) Health care, other than special health care, of an adult may
be carried out without consent if the adult’s health provider
reasonably considers
(a) the adult has impaired capacity for the health matter
concerned; and
(b) either
(i) the health care should be carried out urgently to
meet imminent risk to the adult’s life or health; or
(ii) the health care should be carried out urgently to
prevent significant pain or distress to the adult
and it is not reasonably practicable to get consent
from a person who may give it under this Act or the
Powers of Attorney Act 1998.
(2) However, the health care mentioned in subsection (1)(b)(i)
may not be carried out without consent if the health provider
knows the adult objects to the health care in an advance
health directive.
(3) However, the health care mentioned in subsection (1)(b)(ii)
may not be carried out without consent if the health provider
knows the adult objects to the health care unless
(a) the adult has minimal or no understanding of 1 or both of
the following
(i) what the health care involves;
(ii) why the health care is required; and
(b) the health care is likely to cause the adult
(i) no distress; or
(ii) temporary distress that is outweighed by the benefit
to the adult of the health care. (GAA 2000, s63)
(4) The health provider must certify in the adult's clinical records
as to the various things enabling the health care to be carried
out because of this section.
177
Appendix 8.1
Provision Details
Guardianship and A person who has reached 18 years of age and has full legal
Administration Act 1990 (WA) capacity may make an advance health directive containing
ACD referred to as ‘advance treatment decisions in respect of the person’s future treatment.
health directive’ An advance health directive is not valid unless – it is in the form
Default decision maker referred or substantially in the form prescribed by the regulations; and
to as ‘person responsible’ the maker is encouraged to seek legal or medical advice; and it
is signed by its maker or by another person in the presence of,
and at the direction of, its maker; and the signature is witnessed
by 2 persons – at least one of whom is authorised by law to take
declarations; and the other must be at least 18 years of age; and
not be the maker of the advance health directive; or the person
who signed the directive at its maker’s direction (if applicable).
The directive should be signed by the witnesses in the presence
of its maker; and the person who signed it at its maker’s direction
(if applicable); and each other.
The maker may choose to indicate whether the maker obtained
legal or medical advice about the making of the directive; and
if so, to identify from whom the maker obtained the advice.
However it should be noted that the validity of an advance health
directive is not affected by a failure of the maker to seek legal or
medical advice.
A treatment decision in an advance health directive is invalid if
the treatment decision is not made voluntarily; or is made as a
result of inducement or coercion.
A treatment decision in an advance health directive is invalid if,
at the time the directive is made, its maker does not understand
the nature of the treatment decision; or the consequences of
making the treatment decision.
A treatment decision in an advance health directive operates
in respect of the treatment to which it applies at any time the
maker of the directive is unable to make reasonable judgments
in respect of that treatment; and as if the treatment decision had
been made by the maker at that time; and the maker were of full
legal capacity.
A treatment decision in an advance health directive operates only
in the circumstances specified in the directive.
A treatment decision in an advance health directive does not
operate if circumstances exist or have arisen that the maker of
that directive would not have reasonably anticipated at the time
of making the directive; and would have caused a reasonable
person in the maker’s position to have changed his or her mind
about the treatment decision.
178
8 End-of-life care
Appendix 8.1
Provision Details
The matters that must be taken into account to determine this
include the maker’s age at the time the directive was made and
at the time the treatment decision would otherwise operate; the
period that has elapsed between those times; whether the maker
reviewed the treatment decision at any time during that period
and, if so, the period that has elapsed between the time of the
last such review and the time at which the treatment decision
would otherwise operate; the nature of the condition for which
the maker needs treatment, the nature of that treatment and the
consequences of providing and not providing that treatment.
For the purpose of determining whether a treatment decision
that is in an advance health directive, is subject to the terms of
the directive a number of persons can be consulted including an
enduring guardian if one is appointed, the enduring guardian; a
person who has a relationship with the maker i.e. the spouse or
de facto partner; a child, a parent, a sibling or any other person
considered appropriate in the circumstances.
A treatment decision in an advance health directive is taken to
have been revoked if the maker of the directive has changed
his or her mind about the treatment decision since making the
directive. Merely appointing an enduring guardian does not
revoke the directive.
NSW Health Guidelines on A directive
end-of-life care • Must be sufficiently clear and specific to guide clinical care.
ACD referred to as ‘Advance • There must not be any evidence to suggest that the directive
care directive’ does not reflect the current intentions of the patient, or was
Default decision maker referred made as a result of undue influence.
to as ‘person responsible’ • The directive should be made by the patient him or herself
and should reflect his or her wishes, rather than the wishes of
another person.
• It is best practice, but not legally necessary, that the patient
should periodically review the directive, for example, once a
year, after an illness, or with a change in health status.
• The directive should be available at the time decisions
need to be made, for example, by ensuring the likely person
responsible and primary healthcare provider have a copy of
the directive and any of its revisions.
• The directive should be signed and witnessed.
• A medical practitioner should be involved in discussions with
the patient to assist with the development of the directive.
179
Appendix 8.1
Provision Details
• If the patient, when competent, has unequivocally refused the
provision of emergency/life saving treatment in the applicable
circumstances and the clinician is satisfied on the available
evidence that such a direction has been made then that
treatment will not be given.
• There is no prescribed form which the directive must take, it is
not necessary for a witness be present (although encouraged)
and no health professional is required to have informed the
patient prior to the writing of the directive.3 It need not even be
in writing.
Guardianship Act 1987 (NSW) The object of this section is to specify the person who is the
s33A ‘Person responsible’ ‘person responsible’ for another person for the purposes of giving
consent to medical or dental treatment when the person loses
capacity.
Person responsible for a child
The ‘person responsible’ for a child is the person having parental
responsibility (within the meaning of the Children and Young
Persons (Care and Protection) Act 1998 ) for the child.
However, the person responsible is the Minister if the child is in
the care of the Minister or the Director-General if the child is in
the care of the Director-General
Person responsible for another person
There is a hierarchy of persons from whom the ‘person
responsible’ for a person who is incompetent to make their own
health care decisions. That hierarchy is, in descending order:
(a) the person’s guardian, if any, but only if the order or
instrument appointing the guardian provides for the guardian
to exercise the function of giving consent to the carrying out
of medical or dental treatment on the person,
(b) the spouse of the person, if any, if:
(i) the relationship between the person and the spouse is
close and continuing, and
(ii) the spouse is not a person under guardianship,
(c) a person who has the care of the person,
(d) a close friend or relative of the person.
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8 End-of-life care
Appendix 8.1
Provision Details
A person is a ‘close friend or relative’ of another person for the
purposes of this Act if the person maintains both a close personal
relationship with the other person through frequent personal
contact and a personal interest in the other person’s welfare.
However, a person is not to be regarded as a close friend or
relative if the person is receiving remuneration (whether from the
other person or some other source) for, or has a financial interest
in, any services that he or she performs for the other person in
relation to the person’s care.
The circumstances in which a person is to be regarded as
‘having the care of another person’ include (but are not limited
to) the case where the person, otherwise than for remuneration
(whether from the other person or any other source), on a regular
basis:
(a) provides domestic services and support to the other person,
or
(b) arranges for the other person to be provided with such
services and support.
A person who resides in an institution (such as a hospital,
nursing home, group home, boarding house or hostel) at which he
or she is cared for by some other person is not, merely because
of that fact, to be regarded as being in the care of that other
person, and remains in the care of the person in whose care he or
she was immediately before residing in the institution.
In this section, ‘remuneration’ does not include a carer’s pension.
Operation of hierarchy
If a person declines in writing to be the person responsible or if
a medical practitioner determines that the person responsible is
not capable of carrying out those functions, then the person next
in the hierarchy will become the ‘person responsible’.
Tasmanian ‘Palliative Care Patient consent is required before treatment may be started or
Management Guidelines. stopped.
Clinical Decision Making at End Where a patient lacks the capacity to make their own decisions
of Life’ – for terminal patients about a medical treatment, a person responsible will need to act
ACD referred to as ‘Advance on their behalf.
care planning’ The Guardianship and Administration board in Tasmania sets out
Default decision maker referred a hierarchy of persons who can perform this role:
to as ‘person responsible’ For a child (under 18 years) the person responsible will be the
child’s parent or, if they are married, their spouse.
181
Appendix 8.1
Provision Details
A person responsible for an adult (18 years or over) will be a
guardian; this includes an Enduring Guardian who has the power
to make decisions about heath care.
If there is no guardian, his or her spouse (this includes de facto
spouses and same sex spouses); or if there is no spouse an
unpaid carer who is now providing support to the person or
provided this support before the person entered residential care;
or if there is no carer a close relative or friend of the person, who
has a close personal relationship with the other person through
frequent personal contact and who has a personal interest in the
other person’s welfare.
Neither patients nor persons responsible can insist on treatment
that is futile and therefore medically contraindicated in the
circumstances, nor can they insist on actions that are illegal or
contrary to professional ethics.
1
Office of the Public Advocate (2011) Advance Directives in SA. Online. Available: http://www.opa.sa.gov.au/
documents/10_Fact_Sheets/08-Advance_Directives_in_SA.pdf (accessed 11 November 2011).
2
“Extraordinary measures” means medical or surgical measures that prolong life, or are intended to prolong life, by
supplanting or maintaining the operation of bodily functions that are temporarily or permanently incapable of independent
operation. Natural Death Act 1988 (NT) (accessed 11 November 2011).
3
NSW Health “Guidelines for end-of-life care and decision making”. Online. Available: http://www.health.nsw.gov.au/
pubs/2005/pdf/end_of_life_care.pdf . NSW Health “Using Advance Care Directives”. Online. Available: http://
www.health.nsw.gov.au/policies/gl/2005/pdf/GL2005_056.pdf (accessed 11 November 2011),
Endnotes
1 Butt, P and Hamer, D (eds) (2011) Concise Australian Legal Dictionary, 4th edn.
Australia: Lexis Nexis.
4 Guardianship and Administration Act 1990 (WA) s110ZH.
5 National Health and Medical Research Council website. New guidelines for
communicating end-of-life-issues. Online. Available: http://www.nhmrc.gov.au/
media/releases/2007/new-guidelines-communicating-end-life-issues (accessed 13 June
2012).
6 Emanuel, E, Fairclough, D and Emanuel, L (2000) Attitudes and desires related to
euthanasia and physician-assisted suicide among terminally ill patients and their
caregivers. Journal of the American Medical Association 284(19), pp. 2460–2468;
consider also the number of patients who seek to end their own lives using ‘right to
die’ laws, including the now repealed Rights of the Terminally Ill Act 1995 (NT),
according to which four people chose to end their lives with one of the essential
criteria for eligibility being ‘pain and suffering’.
182
8 End-of-life care
7 See also Stewart, G, Cutrer, W, Demy, T, O’Mathuna, D, Cunningham, P, Kilner, J

and Bevington, L (1998) Basic Questions on Suicide and Euthanasia: Are They Ever
Right? Grand Rapids, MI: Kregel publications.
8 Katelaris, A (2011) Time to rethink end-of-life care. eMJA rapid online. Available:
http://www.mja.com.au/public/issues/194_11_060611/choice_060611.pdf (accessed
11 November 2011).
9 Lowthian, J, Cameron, P, Stoelwinder, J, Curtis, A, Currell, A, Cooke, M and
McNeil, J (2011) Increasing utilization of emergency ambulances. Australian Health
Review 35, pp. 63–69.
10 Cica, N (1996) Euthanasia: the Australian law in an International context.
Parliament of Australia Research Paper 3. Online. Available: http://www.aph.gov.au/
About_Parliament/Parliamentary_Departments/Parliamentary_Library/pubs/rp/
RP9697/97rp3 (accessed 13 June 2012).
11 Euthanasia Laws Act 1996 (Cth), passed by the Senate on 24 March 1997.
12 Online. Available: http://www.legislation.sa.gov.au/LZ/B/CURRENT/
CRIMINAL%20LAW%20CONSOLIDATION%20(MEDICAL%20
DEFENCES%20%20END%20OF%20LIFE%20ARRANGEMENTS)%20
AMENDMENT%20BILL%202011_HON%20STEPH%20KEY%20MP/B_
AS%20INTRODUCED%20IN%20HA/CRIMINAL%20ARRANGEMENTS%20
AMENDMENT%20BILL%202011.UN.PDF (accessed 20 November 2011).
13 Kuhse, H, Singer, P, Baume, P, Clark, M and Rickard, M (1997) End-of-life
decisions in Australian medical practice. Medical Journal of Australia 166(4):
191–196.
14 Rights of the Terminally Ill (Euthanasia Laws Repeal) Bill 2008.
15 Dying with Dignity, Victoria (11 November 2011) Australian’s back the right to die.
Online. Available: http://www.dwdv.org.au/News/News0621.html (accessed 11
November 2011).
16 Australian Medical Association (12 September 2011) Doctors and lawyers oppose
‘end of life’ bill. Online. Available: http://www.amasa.org.au/download/Media%20
releases/2011/0970%20End%20of%20Life%20Bill%2009-12%20cb.pdf (accessed
11 November 2011).
17 Re B (Adult: Refusal of Medical Treatment)[2002] 2 All ER 449 at 456.
18 Powers of Attorney Act 1998 (Qld) s36; Consent to Medical Treatment and Palliative
Care Act 1995 (SA) s7; Natural Death Act 1988 (NT) s4(1). Guardianship and
Administration Act 1990 (WA) Pt 9B; Medical Treatment (Health Directions) Act 2006
(ACT); Natural Death Act 1988 (NT); Medical Treatment Act 1988 (Vic).
19 White, B, Willmott, L, Trowse, P, Parker, M and Cartwright, C (2011) The legal
role of medical professionals in decisions to withhold or withdraw life-sustaining
treatment: Part 1 (New South Wales). Journal of Law and Medicine 18, p. 498.
21 Medical Treatment Act 1994 (Vic) s5; Medical Treatment Act 1994 (ACT) s7.
22 Powers of Attorney Act 1998 (Qld) s36; Consent to Medical Treatment and Palliative
Care Act 1995 (SA) s7; Natural Death Act 1988 (NT) s4(1).
23 NSW Health website. Guidelines for end-of-life care and decision making. Online.
Available: http://www.health.nsw.gov.au/pubs/2005/pdf/end_of_life_care.pdf
(accessed 11 November 2011); NSW Health website. Using advance care directives.
Online. Available: http://www.health.nsw.gov.au/policies/gl/2005/pdf/
GL2005_056.pdf (accessed 11 November 2011).
183
24 Powers of Attorney Act 1998 (Qld); Consent to Medical Treatment and Palliative Care
Act 1995 (SA); Natural Death Act 1988 (NT); Guardianship and Administration Act
1990 (WA); Medical Treatment (Health Directions) Act 2006 (ACT); Natural Death
Act 1988 (NT); Medical Treatment Act 1988 (Vic).
25 Secretary, Department of Health and Community Services (NT) v JWB and SMB
(Marion’s Case) (1992) 175 CLR 218.
26 Hunter and New England Area Health Service v A (2009) 74 NSWLR 88 at [36].
27 Hunter and New England Area Health Service v A (2009) 74 NSWLR 88 at [37].
28 Townsend, R and Giles, D (2006) End of life decision and the NSW Guardianship
Act: a square peg in a round hole? The law and clinical practice. Australian Health
Law Bulletin 15(1), pp. 4–7.
29 Malette v Shulman (1990) 67 DLR (4th) 321.
30 Re T [1992] EWCA Civ 18; [1992] 4 All ER 649.
31 Medical Treatment (Health Directions) Act 1996 (ACT) s16.
32 Medical Treatment Act 1988 (Vic) s9.
34 Natural Death Act 1988 (NT) s5.
35 Powers of Attorney Act 1998 (Qld) s103.
36 Stewart, C (2000) Qumsieh’s case, civil liability and the right to refuse medical
treatment. Journal of Law and Medicine 8, p. 56. Faunce, TA and Stewart, C (2005)
The Messiha and Schiavo cases: third-party ethical and legal interventions in futile
care disputes. Medical Journal of Australia 183(5), pp. 261–263.
37 See Medical Treatment (Health Directions) Act 2006 (ACT) s12.
38 Natural Death Act 1983 (SA); Medical Treatment Act 1988 (Vic); Medical Treatment
(Health Directions) Act 2006 (ACT).
39 White, B, Willmott, L and Then, SN (2010) Adults who lack capacity; substitute
decision-making. In: White, B, McDonald, F and Willmott, L (eds), Health Law in
Australia. Pyrmont: Thomson Reuters.
40 Guardianship Act 1987 (NSW).
41 Stewart, C (1997) Who decides when I can die? Problems with proxy decisions to
forego life-sustaining treatment. Journal of Law and Medicine 4, pp. 386–401;
Fidler, DP (2008) Global health jurisprudence: a time of reckoning. The Georgetown
Law Journal 96, pp. 393–412.
42 WK v Public Guardian [2006] ADT 93.
43 Re BWV, Ex parte Gardner [2003] VSC 173.
44 Stewart, C (2000) Qumsieh’s case, civil liability and the right to refuse medical
treatment. Journal of Law and Medicine 8, p. 56.
45 Criminal Code Act 1913 (WA) s268.
46 Crimes Act 1900 (NSW) s18.
47 Criminal Code (NT) s160.
48 Kuhse, H, Singer, P, Baume, P, Clark, M and Rickard, M (1997) End-of-life
decisions in Australian medical practice. Medical Journal of Australia 166(4):
191–196; Kinzbrunner, B, Weinreb, N and Pouczer, J (2002) 20 Common Problems
in End of Life Care. University of Michigan: McGraw Hill.
184
8 End-of-life care
50 R v Maxwell [2003] VSC 278.

51 R v Hood [2002] VSC 123.
52 Stuart v Kirkland-Veenstra [2009] HCA 15.
53 Crimes Act 1900 (NSW) s31A; Criminal Law Consolidation Act 1935 (SA) s13A(1);
Crimes Act 1958 (Vic) s6A; Criminal Code (WA) s288; Criminal Code (QLD) s311;
Criminal Code (Tas) s163.
54 Criminal Code (WA) s288; Criminal Code (QLD) s311.
55 Criminal Code (Tas) s163.
56 Criminal Consolidation Act 1935 (SA) s13A; Crimes Act 1900 (NSW) s31C; Crimes
Act 1900 (ACT) s17.
57 Criminal Code (SA).
58 Criminal Code (NT) s162(2).
59 Messiha v South East Health [2004] NSWSC 1061.
60 See Faunce, T and Stewart, C (2005) The Messiha and Schiavo cases: third-party
ethical and legal interventions in futile care disputes. Medical Journal of Australia
183(5), pp. 261–263.
62 Transplantation and Anatomy Act 1978 (ACT) s45; Human Tissue Act 1983 (NSW)
s33; Human Tissue Transplant Act 1979 (NT) s23; Transplantation and Anatomy Act
1979 (Qld) s45; Human Tissue Act 1985 (Tas) s27A; Human Tissue Act 1982
(Vic) s41.
63 Coroners Act 2003 (Qld) s8; Coroners Act 2009 (NSW) s6; Coroners Act 2008 (Vic)
s4; Coroners Act 2003 (SA) s28; Coroners Act 1996 (WA) s17; Coroners Act (NT)
s12(1); Coroners Act 1995 (Tas) s19; Coroners Act 1997 (ACT) s2.
64 Dworkin, R (1999). Freedom’s Law: The Moral Reading of the American
Constitution. New York: Oxford University Press.
185
Chapter 9
An introduction to child protection and
mandatory reporting
Stephen Bartlett
Learning objectives
• Know what constitutes a child and when a child might require protection
• Describe mandatory reporting
• Identify the signs of child abuse
• Analyse the law and its relationship to paramedic practice with respect
to this topic
Definitions
Child As stated, this chapter focuses entirely on the child; hence, it is important to
provide a legal definition of the child since such a definition is not entirely intuitive.1
Each jurisdiction discussed in this chapter has its own statutory definition and,
though the differences are not gross, differences with respect to definition do exist.
The English case of Paton v British Pregnancy Advisory Service (1978)2 established
that, in order to have legal status and therefore immutable rights conferred upon it,
a child must demonstrate spontaneous respiratory and cardiac output, and no
longer rely on the mother for life support. This is recognised as the point of ‘life’
beginning. Broadly speaking, in Australian law, a child is a person under the age of
18 years. A ‘young person’ would refer to someone aged between 12 and 17 years,
depending on the jurisdiction you are in. Appendix 9.1 gives the legal definitions of
a child in Australia and New Zealand. The majority of jurisdictions considered in
this chapter will follow the definition of a child (with regard to child abuse) as set
out by the United Nations Convention on the Rights of the Child.3 Australia ratified
the treaty on 17 December 1990 and New Zealand on 6 April 1993. Following the
Second World War human rights were the focus of a great deal of attention. In
1959 the Declarations of the Rights of the Child was adopted by the United Nations.
The aims of the treaty are numerous but, fundamentally, it seeks to provide a basic
standard of living to all children under the age of 18, eliminating neglect and abuse
while also providing and protecting the interests of children worldwide and for their
welfare in areas such as health and education.
Child abuse In terms of defining abuse, section 4(1) of the federal Family Law Act
states that:
186
9 An introduction to child protection and mandatory reporting
Abuse, in relation to a child, means:

a) an assault, including a sexual assault, of the child which is an offence under a
law, written or unwritten, in force in the State or Territory in which the act
constituting the assault occurs; or
b) a person involving the child in a sexual activity with that person or another
person in which the child is used, directly or indirectly, as a sexual object by the
first-mentioned person or the other person, and where there is unequal power in
the relationship between the child and the first-mentioned person.
Examples of physical abuse include biting a baby on the fingers, ears and face and
hitting a child with an electric cord, a strap or a feather duster.4
Mandatory reporting The law generally phrases mandatory reporting in this way: ‘If
personnel have reasonable grounds for suspecting that a child has been abused, or is
at risk of being abused, the person must, as soon as practicable, notify a prescribed
child welfare authority of his or her suspicion and the basis for the suspicion.’5
The challenging environment
You have been called to a 4-year-old child complaining of a possible chest
infection. The parents appear kind and attentive and seem genuinely concerned for
the child’s welfare. The child is compensating well despite having a productive
cough and general malaise. The parents are happy for the child to be taken to the
nearest paediatric Emergency Department (ED).
While waiting for the parents to prepare to leave to go to the ED you notice a
collection of pornographic videos on the floor and on clear display for you to see.
The images on the boxes are graphic and depict males and females in various
sexual poses. There are children’s videos mixed in with the pile on the floor. The
father sees that you are looking at the videos and states that his son is always
going through the video collection and leaving the videos strewn on the floor. The
father states, ‘We are always cleaning up after him. Kids, eh?’ You say nothing
and leave with the patient and family members.
This chapter aims to provide students and paramedics alike with information so as
to raise awareness of child protection and provide some assistance and guidance
where child abuse and/or neglect are suspected. In particular it will help you
answer questions such as:
1 Is it appropriate and reasonable for a child to be in contact with graphic sexual
images?
2 If confronted with this situation, or a situation similar, would you seek to report
it to child protection services?
3 Is it appropriate or reasonable conduct to address the topic with the parents?
4 Would you feel supported and equipped to manage the parents’ reaction,
whatever that may be?
187
Introduction
Child abuse, broadly speaking, is a public health issue, a social issue and a legal
issue. It is an issue that concerns everyone engaged directly or indirectly in child
protection work. This includes all ambulance service employees.6
You should not approach this chapter as a guideline for practice or a recipe for
response. The complexity of this issue for paramedics, indeed for all health profes-
sionals, is such that it requires a high level of understanding of the topic. This
chapter aims to provide that understanding and, thus, assist you in becoming aware
of child protection matters, what may constitute abuse and how to report and refer
a suspicion of child abuse and/or neglect.
This chapter will also focus on what constitutes the legal definition of a child and
an analysis of what constitutes child abuse, the statutory requirement for interven-
tion, how to identify child abuse and how to report and manage self-disclosure.
Factors associated with child abuse such as drugs and alcohol will be discussed, as
will common misconceptions that may prove harmful when determining whether
a child should be referred to child protection services.
Cultural issues will also be addressed, as will the subject of chastisement – what
constitutes lawful or ‘reasonable’ chastisement within the various jurisdictions.
The chapter will close with a discussion on mandatory reporting and will consider
the sometimes conflicting rights of parents and duty of the state to act in a child’s
best interest.
Child protection: an overview

People who abuse or neglect children can be old or young; they can be rich or poor;
they are not one particular sex, race or religion; they may be educated or unedu-
cated; they may be blue collar or white collar workers or unemployed; they may be
married, cohabiting or live alone. They may or may not have been a recipient of
abuse themselves. Child abusers do not fit into a single demographic and they
cannot be categorised. Anyone can be a perpetrator of child abuse and/or neglect.
Conversely, any child can be the victim of child abuse and/or neglect. The question
that paramedics need to ask themselves as part of their practice is, ‘How will I know
if a child is being, or is at risk of being, abused and/or neglected, and what should
I do about it?’
Paramedics need to be clear that they must not pre-judge a situation with respect
to child abuse. For example, although data might indicate that there is an over-
representation of Indigenous children in the child protection systems in Australia7,
it would be unprofessional and wrong to consider that all health matters pertaining
to Indigenous children involve child abuse. Paramedics must remain alert to the
importance of non-judgemental practice.
Above all, paramedics must be alert to and aware of the signs of child abuse and
neglect. The secretive and insidious nature of abuse can make definitive identifica-
tion difficult8, but these difficulties do not relieve the paramedic of the obligation
to report suspected incidences of child abuse and neglect. The system of reporting
is set up to help reporters protect children. This chapter will examine that process
in more detail.
188
In Australia, each state and territory has legislated with respect to mandatory
reporting of suspected cases of child abuse. In New Zealand there is no mandatory
duty to report child abuse. Paramedics are not specifically mentioned as being a
class of professional that is required by law to report suspected child abuse, unlike
some jurisdictions that mandate that doctors, nurses and teachers must report.
The policy position underpinning mandatory reporting is to ensure children (not
the abuser) are protected (i.e., by not allowing incidents of child abuse and victims
to fall through the cracks because of bureaucracy protecting the perpetrator).9 It is
argued that placing an emphasis on reporting ensures that no suspicion of child
abuse will go unacknowledged and should prevent continued abuse.10 Because of a
common fear of reprisal with respect to reporting a suspicion of child abuse, legisla-
tion and the common law have emphasised the importance of protecting the identi-
ties of reporters of child abuse from the parties alleged to have perpetuated the abuse
in order to ensure reports of abuse are made.11 Whether child welfare and safety
departments will corroborate the allegation is immaterial to the reporter. Reporting
their suspicions will mean they have executed their legal function.
As alluded to, the purpose of mandatory reporting requirements is to ensure that
children at risk are identified, and to raise awareness of and reinforce the moral
responsibility of professional groups, and the community more generally, to be
aware of the seriousness of child abuse. It also makes reporting a legal duty that
might otherwise have been avoided as a result of a reluctance on the part of some
to get involved in these issues.
Who is responsible for child protection?

Ideally, there ought to be a hierarchical structure for child protection with two
parents at the apex. In the absence of parents, a cascade of other care providers (e.g.
friends and extended family) and advocates for the child should automatically bear
the appropriate responsibility for the child’s welfare and development, all with the
same goal of providing for and protecting children as if the child were their own.
The duty to care for children arguably extends beyond the immediate family. The
African proverb, ‘It takes a village to raise a child’12 illustrates this. The ‘village’ could
include groups and professionals who, through the provision of services such as
education or health care, play a part in any child’s welfare. In 1989, the United
Nations Convention on the Rights of the Child (CROC) 1989 set out article 19(1)
which stated that:
[all] … States’ Parties shall take all appropriate legislative, administrative, social and
educational measures to protect the child from all forms of physical or mental vio-
lence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation,
including sexual abuse, while in the care of parent(s) … or any other person who
has the care of the child.
Children at risk of abuse will always require adults to safeguard them from abuse,
harm and non-accidental injury.13 Paramedics may, during the course of their prac-
tice, find themselves in a position to safeguard vulnerable children. Paramedics fall
squarely within a group who are uniquely placed to protect the safety and wellbeing
of children. The public perceives them as being a highly trusted professional group.14
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They are trusted with sensitive personal information, sometimes presented with
unguarded honesty. They access people in their own environments and are able
to directly witness and give account of the information they gather from there.6
Perpetrators of abuse may not be as guarded and the evidence to support a para-
medic’s suspicion may not be as easily cloaked due to the environments in which
paramedics operate.
It is sometimes difficult to determine the distinction between physical discipline
and child abuse, but an examination of the law assists in clarifying this distinction.
In criminal law there are a number of possible charges that could be laid on a person
who is alleged to have abused a child, including assault. However, a defence avail-
able to the accused is that the person assaulted the child as a form of ‘reasonable
chastisement’ or ‘lawful correction’. These defences are available to offer parents (not
to anyone else) an option to discipline their children if it is deemed to be in the
child’s best interests; for example, if the child is going to come to some harm. Others
may have a defence against assaulting another person (including a child) if they are
able to demonstrate that they had a ‘lawful excuse’ for doing so, for example, playing
contact sport, colliding with another on a busy street or when acting in self defence
or necessity (pushing someone to prevent a harm coming to them).
An example of ‘reasonable chastisement’ or ‘lawful correction’ in the case of a
child would be if a child was about to place their hand on a hot stove and a
parent hits the child’s hand away. This may be considered an assault but for the
intention of the parent to prevent a greater harm befalling the child. What would
not meet a ‘reasonable chastisement’ test is a hard blow with a closed fist or tying
a child to a tree. In the 1955 Victorian case of R v Terry the action of an adult
was determined as needing to be ‘moderate and reasonable’ and ‘by way of cor-
rection not retribution’ and carried out with a ‘reasonable means or instrument’
to avoid a charge of assault.15 In NSW ‘lawful correction’ is limited to ‘reasonable
force’, and any force applied to the head or neck of the child is considered
‘unreasonable’ as is an action that could harm the child for more than a ‘short
period’. ‘Short’ is not defined.16
New Zealand introduced ‘anti-smacking’ legislation in 2007 but this was chal-
lenged by a citizen-initiated referendum in 2009 asking the question, ‘Should a
smack as part of good parental correction be a criminal offence in New Zealand?’
Despite problems with the question, including the linking of ‘good’ and ‘criminal
offence’, New Zealanders answered a resounding ‘no’ with 87% of the vote. However,
the Parliament did not act on the vote and the ‘anti-smacking’ legislation remains.
In an Australian study conducted in 2009, the authors concluded that ‘lives could
be saved by measures that reduce the incidence of child abuse, including the pro-
hibition of corporal punishment of children’.17
Broadly at law, a child would be considered in need of protection when the ‘child
has suffered, or is likely to suffer, significant harm as a result of physical injury and
the child’s parents have not protected, or are unlikely to protect, the child from
harm of that type’. If abuse is found, the court then determines what is in the best
interests of the child, giving consideration to the ‘need to protect the child from
harm, to protect his/her rights and to promote his/her development giving consid-
eration to the need to give the widest protection and assistance to the parent and
190
child as the fundamental group unit of society’. It also considers ‘the effect of
cumulative patterns of harm on a child’s safety and development and that a child
should only to be removed from the care of his/her parent if there is an unaccept-
able risk of harm to the child, including in that assessment a consideration of what
is socially acceptable’.18
Why just focus on child protection and not other vulnerable

members of society?
Although this chapter focuses purely on child protection, it is important to acknowl-
edge other groups who may be considered vulnerable and at risk of abuse and to
whom the paramedic may, at the very least, owe a moral duty of care. There are
many reasons for this vulnerability but most revolve around a power imbalance
between the victim and the perpetrator. The list that follows is by no means exhaus-
tive. Other groups at risk of abuse include:
• the elderly19
• women and/or a foetus20
• the developmentally disabled21
• the homeless
• immigrants with concomitant social and cultural vulnerabilities.22
In no way is it suggested that other vulnerable groups of society are less in need
of a paramedic’s attention than children. However, as Appendix 9.2 indicates, child
welfare has a significant amount of legislation drafted for the purpose of child pro-
tection and, hence, will be the sole focus of this chapter.
History of child protection

The introduction of child physical abuse and non-accidental injury into the clinical
parlance was first formalised in 1962 by Dr Henry Kempe who coined the term
‘battered child’.23 Prior to this, the legal system, as well as the medical system,24 had
been reluctant to interfere and/or intervene on behalf of children. The state had
historically adopted the view that parents should be allowed to bring up children
in a way they saw fit and without interference.25 Social and state intervention on
behalf of and in the best interest of the child dates back to the Victorian era.26 For
much of the 18th and 19th centuries childhood was not something to be valued
and protected. Even children from privileged backgrounds were under the tutelage
– not of the biological parents27 – but of the household nanny or governess who
would parent and ‘nurse’ the children,28 which reflects how child welfare was viewed
in comparison with today.
Over time, as an acknowledgement was made that children are vulnerable to
exploitation and abuse, there has been a concerted effort made through health, legal
and social policies to improve the safety of children considered at risk from abuse.
However, there have been times when children have been let down by policy put in
place to protect them.29 Nevertheless, most interventions with respect to child
protection are positive, despite reports relayed in the media to the contrary.30
Though failures do still occur, there have been considerable improvements within
child safety and protection services and an increased knowledge and understanding
191
of the devastating effects on the development of the child that abuse can have in
adult life.31
Child protection should be considered a shared responsibility and should not
be left up to individuals, individual groups or government to manage alone. It
should be an all of community response. Paramedics can play an important
role by increasing their own awareness and understanding of legal responsibilities
and issues pertaining to child protection so that they are better equipped to:
(a) disseminate that information to the community; and (b) act in the child’s
best interest.
Identifying child abuse

Child abuse and neglect can be hard to identify as it is insidious. Child abuse will
not usually be an isolated issue in itself. There may be associated issues pertaining
to alcohol or drug dependency. There may be one parent absent, for whatever
reason, for extended periods of time. There may be physical and mental health
issues, financial constraints or work demands, or any factor that could affect a carer’s
ability to parent effectively. The reasons that child abuse occurs can be numerous
and arise out of frustration, anger or an inability to cope, or simply because the
parent has no knowledge of good parenting skills and no support.
Akin to requiring a village to raise a child, it takes a multidisciplinary team
approach to child protection for at-risk children, and the threshold for intervention
differs within different professional groups. What is perceived as child abuse by one
professional group may not be viewed as abuse in the same way by another. For
instance, comparing the views held by healthcare professionals with those of teachers
or child protection workers, Feng says:
Healthcare professionals were likely to report families with more parenting stress,
while police officers and social workers were likely to report families with domestic
violence, homelessness and caregiver learning disabilities. Teachers were likely to
report families with mental illness and parents who applied harsh disciplines.32
The same differences can be said for outcomes with respect to managing child
protection.
Nurses and child protection workers were more likely to recommend family therapy
while police officers were more likely to recommend severe punishment for the
offender. Both approaches may be appropriate depending on the circumstances and
the contribution of both groups of professionals should be recognized. Professionals’
attitudes and values are important to examine because of their significance in profes-
sionals’ reporting intention and behaviours.33
As paramedics generally come into contact with patients and their families in
the home setting it is important to reflect upon the two quotes above. Consider
the quotes and utilise them as you address the issues and the questions posed by
Case 9.1.
Presented with the issues stated above it is important to address this incident in
a logical and systematic way. Not only must the paramedic manage the injured and
distressed child; the clinical assessment and treatment of the injury is paramount,
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Case 9.1
Suspected child abuse
You have been called to a residential property for a 3-year-old with a possible
fracture of the non-dominant upper limb. You are met by a female stating that she
is the child’s mother. She states that her daughter fell from the arm of the sofa
while watching television. This occurred despite several requests from the mother
to her daughter to come down from that position, which the mother referred to as
precarious.
You find the child sitting at the kitchen table, holding the affected limb and crying.
The child is clearly too distressed to offer a version of events at this stage. While
you focus your attention on the patient, your crew mate assesses the scene and
looks at the furniture she is alleged to have fallen from. Your crew mate returns
and states that the piece of furniture is a futon with no arms and the seating
platform is approximately 30 cm off the floor. The floor is tiled.
and it is important to consider the available version of events within the environ-
mental context. The treating paramedic must determine how far they are prepared
to act in the best interest of the child based on the legal and ethical principles dis-
cussed in this and other relevant chapters. In this case, identifying the mechanism
of injury can also assist with resolving the dilemma as to whether or not this matter
should be reported to child services.
1 Given the version of events stated by the mother, is it possible to

question whether the injury is accidental or non-accidental in origin?
2 Would you think it appropriate to challenge the mother on the facts
stated given that the piece of furniture does not match what was
described?
3 Is it correct to assume that the mother and her daughter were the only
ones on the scene?
4 If there is any concern as to how the injury was sustained, how would
you record the information?
5 What terms would you use?
6 Could there be alternative plausible reasons for the injuries sustained? If
so, what do you think they might be?
The role of the paramedic

Evaluating the history and mechanism of either physical or psychological injury is
the predominant concern for the treating paramedic. The history of events will need
to be evaluated at an appropriate time following treatment and transport of the
injured party. The patient is the paramedic’s chief focus, and care should of course
be the priority; however, the paramedic has an important role to play here and can
193
assist in determining whether the stated events caused the presenting injury. In
doing so, the paramedic should consider the following:
1 The injury has been caused by another person and is considered to have
been inflicted.
2 The injury is adequately explained by the circumstances of the injury
event provided (by the carer or other witness).
3 The injury is self-inflicted – has been caused by the child’s own behaviour
as a result of normal childhood activity (with no other person actively
involved).
4 The mechanism or sequence of events leading to the injury remains
indeterminate or unclear.33
Giving consideration to these four issues will allow the paramedic an opportunity
to alert authorities to the child-at-risk if they develop a ‘reasonable’ level of suspi-
cion. The relevant authorities are indicated in Appendix 9.3.
Types of abuse
There is a general consensus within Australia and New Zealand and much of the
developed world that there are four types of child abuse. These are:
1 physical
2 sexual
3 emotional/psychological34
4 neglect.35
Aligned with the above is the fact that the child need not be the direct recipient
of abuse to still be a victim of abuse. Other forms of abuse can be just as damaging,
such as witnessing domestic or intimate partner violence.36
Though no one form of abuse is easier to identify or suspect than any
other, physical abuse requires injuries to be covered up and an inconsistent
history presented with regard to the type of injuries, the child’s age and whether
a reasonable explanation is made. Of the four types of abuse stated above, there
is a chance that they are not carried out in isolation to one another. A child may
experience physical abuse as part of sexual abuse as well as emotional/ psychologi-
cal abuse.
Children are very prone to manipulation and the imbalance of power between
an adult and a child can be used to horrifying extremes. The abuse may pass unde-
tected for a very long time because of the sway the perpetrator has over the child.
There are many methods used by perpetrators to protect themselves from being
discovered, and these include fear engendered in the child by the abuser, which
might include threats against people or animals that the child loves or the threat of
removal of items that are valuable to the child, as well as many other forms of
emotional blackmail.37 The perpetrator may be so deceptive that the abused child
may not perceive what, by objective standards, is actually abuse.38
There will be varying degrees of harm (and the paramedic may apply a subjec-
tive perception of the perceived abuse and inappropriately dismiss it), and there
may be one perpetrator or there may be a number of perpetrators. It is therefore
194
imperative that the paramedic is made aware of signs and presentations associated
with child abuse.
Physical abuse
Children, particularly pre-school children, will often have bruises that are consistent
with and have developed as a result of a normal, healthy experience of childhood
(e.g. climbing trees, falling over, running into objects). These marks are usually
located in areas of the body that would correspond with the mechanism of injury.
For example, falling over while running would result in bruises and abrasions on
the knees.
Injuries sustained as a result of abuse are usually located in unusual areas that
can be easily covered, for example the upper arm, the back of the thighs and the
back. Appendix 9.4 and Appendix 9.5 list possible causes of accidental and non-
accidental injuries, and are designed to help you determine whether the injuries you
observe are appropriate to the child’s age and level of mobility or whether they were
inflicted intentionally to cause harm.
Appendices 9.4 and 9.5 are not designed to be definitive but rather to act as a
guide; they provide a point of reference to assist you when you are examining physi-
cal injuries, such as whether there are numerous bruises and what stages of healing
they are at. Injuries may not indicate that harm has occurred for any reason other
than accidentally, but they may provide justification for the paramedic to report
their suspicions to child protection services should there be doubt with respect to
the cause of the injuries. Some injuries will be more obvious than others in terms
of the purpose of their infliction. For instance, a scalding could have a justifiable
explanation but a cigarette burn would not, even if it were accidental.
Compounding the difficulties associated with the above is balancing the right of
the parent to reasonably be able to chastise their child. The stage at which reason-
able chastisement crosses the line toward physical abuse is not always obvious or
clear. As noted above, it is lawful in Australia for physical punishment to occur
within the home, but since 2007 it has been unlawful in New Zealand,39 where the
use of physical force is limited to preventing or minimising harm.
In the Victorian case of R v Terry (1955)40 an objective standard was applied, and
it was held that the punishment should be no more than is considered moderate
and reasonable. Each state and territory in Australia differs in how it legislates for
lawful physical chastisement. New South Wales legislates for a defence of lawful
correction, stating that the force must be trivial and negligible.41 It remains lawful
in Australia to physically rebuke a child as a form of punishment as long as the
correction does not breach what is considered acceptable by objective standards.
There is no clear demarcation that tells what reasonable or unreasonable chastise-
ment is. The test is objective and paramedics must acknowledge that this is a par-
ticularly thorny issue. What may appear lawful chastisement to one paramedic may
appear completely inappropriate and unjustifiable to another.
Sexual abuse
Sexual abuse is carried out for sexual gratification of the perpetrator. Abuse of a
child may be carried out when children are not even present; for example, with
195
child internet pornography. Not only the makers and distributors but also the
viewers of this material are committing a criminal offence.42 For the victim, issues
of shame and confusion can arise even when they experience normal, healthy feel-
ings of arousal. This can lead to a fear of disclosure of abuse because the child
mistakenly believes their own arousal somehow negates the abuse. These feelings
are easier to understand when we consider that the victim of sexual abuse may
confuse the perpetrator’s actions for affection and, therefore, inappropriately value
the attention being lavished upon them. Although the child may ultimately deter-
mine that the action being carried out against them is wrong, it may take many
years, not only for the abuse to stop, but for the memories of the abuse to surface.
This period ideally requires considerable support and therapeutic intervention for
the benefit of the victim/survivor.
The sexual abuse of a child provokes intense reactions in most members of our
society toward those we suspect or know are guilty of it. Paramedics are no excep-
tion. However, as healthcare professionals it is inherent that, where child sexual
abuse is suspected, it would be completely inappropriate for the paramedic to chal-
lenge the child or any other people present as to the nature of their suspicions. It
is more appropriate for the paramedic to gather a history, perform an assessment
and document his/her findings.
If disclosure regarding abuse is made to the paramedic, it is of extreme importance
to let the child know they are believed, and that the paramedic will take the allega-
tion seriously and will manage it professionally and appropriately. At a fundamental
level this will make the child feel safe and protected. Paramedics must also be aware
that children making a disclosure will use language relative to their age and under-
standing. That is, children of a certain age will lack the sophistication to articulate
a disclosure clearly and signals relating to abuse may be missed, though the descrip-
tion may seem clear to the child.43 Inappropriate sexualised behaviour and language
may be a flag that the child has been exposed to sexualising acts or images. Para-
medics need to be sensitive to this and will need to employ skills of comprehension
pertinent to the child’s level of understanding.
Paramedics should be aware of their feelings toward certain events and circum-
stances that they could, in all likelihood, encounter as part of their practice. By
being aware of these emotions the paramedic will be able to deal professionally with
such a situation until such time as they can seek appropriate support to help them
deal with the obvious difficulties that arise from encountering such an event.
Of all the prescribed forms of abuse, it may be unlikely, despite the fact that
a child is experiencing sexual abuse, that a paramedic will have sufficient opportu-
nity or time within an environment where sexual abuse is taking place to be
alert to any of the signs. This is largely due to the many ways a victim’s sexual abuse
may be revealed, either through direct disclosure or through the behaviour of
the victim. Thus, the physical signs of sexual abuse are unlikely to be apparent to
the paramedic.
It is inappropriate to examine a child’s genitals or anus in the absence of a
stated clinical need, particularly if the child’s presenting complaint is, for instance,
an upper respiratory infection. However, if the child is also complaining of pain
and discomfort associated with genitalia or the anus and/or pain on urination
196
and/or bleeding/discharge from the anus, vagina or penis, examination would be

justifiably indicated and, if found, a suspicion of sexual abuse may be based on
those findings.44
It is recommended that if paramedics feel that an examination is necessary prior
to arriving at hospital, they do not undertake such an examination on their own
and, if possible, they should have someone the child trusts with the child at the
time. Alternatively, police or community service staff trained in dealing with abused
children could be called to assist. Equally, however, a differential finding associated
with pain when the child voids his or her bladder may be due to a urinary tract
infection that can commonly affect younger children. This is true of a number of
conditions that could mimic sexual abuse but are not related to abuse at all. This
information should be relayed to staff at the hospital where further tests can be
conducted.
Paramedics need to be aware that, while sexual exploration is a normal part of
growing up, there can also be age inappropriate sexual conduct that does not con-
stitute sexual abuse. Being under the age of majority does not preclude a person
from having or wanting sexual relations. Should the paramedic, as part of their role,
become aware of underage patients having a sexual relationship, it is important to
know what constitutes acceptable sexual relations in terms of the age of consent for
both hetero- and homosexual conduct. Appendix 9.6 summarises the law with
regard to anal and vaginal sex (unless otherwise stated.)
The paramedic will need to use their own judgement with respect to reporting
suspected cases of abuse. The majority of the jurisdictions recognise an offence when
sexual relations have occurred with anyone under the age of 16. If two people who
are both below the lawful age of consent for a particular jurisdiction have engaged
in sexual intercourse and a paramedic is aware of it, referral may be appropriate.
This will allow the parties involved to receive appropriate advice, if nothing else.
However, if there is less than two years of age difference between them, and the sex
is consensual, it is unlikely that there is a need to report, and the paramedic may
be required to give public health advice on safe sex to the patients. Two people on
the cusp of consent, though unlawful, may require support rather than punitive
measures taken against them. This is an area where the offences should be obvious
but, in some cases, commonsense may prevail.
Emotional/psychological abuse
Emotional and psychological abuse is an incredibly large area of abuse and is dif-
ficult to define.45 For our purposes here the terms will be used interchangeably
though, technically, it is incorrect to do so. Whereas cases of physical and sexual
abuse are reasonably straightforward in terms of what constitutes abuse, instances
of emotional and psychological abuse are less so.46 As with physical and sexual abuse,
the long-term deleterious effects of such abuse are significant and the effects may
be hidden for years into adulthood.
This type of abuse can be characterised by the following examples:
• withholding love and affection
• isolating and ignoring the child
• making the child feel worthless
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Case 9.2
Emotional/psychological abuse
You are called to John, a 34-year-old with non-traumatic back pain. John’s wife
and 6-year-old son meet you, introducing themselves as Tina and John Jnr, and
you look at the boy and his mother to acknowledge them. Though you can’t be
certain, the boy appears to have had some reconstructive surgery for a possible
cleft palate.
They take you and your crewmate through to the patient and, when you arrive in
the bedroom, the patient is in obvious discomfort. You ask him, as part of your
history-taking, if he has taken anything for the pain, and he says he asked his son
to bring in some paracetamol and brufen with a glass of water 10 minutes ago.
John shouts, ‘Retard, where’s my pills?’ His son runs in with the pills and a glass
of water and, in his haste, he trips and spills the water on the bed, some
splashing on his dad. John says under his breath, but sufficiently audible to the
ambulance crew, and to no one in particular, ‘About as much use as a chocolate
tea cosy; useless bastard.’
• providing a constant barrage of baseless criticism

• using fear as a punitive measure
• referring to the child as something non-specific and gender neutral, not
by his or her name.47
Reflect on what you consider to be emotional/psychological abuse and approach
Case 9.2 using the definitions stated above and your own personal values.
The following questions are designed for you to think with latitude and address
any prejudices you may have. There are no right or wrong answers, just points to
consider. The differing issues demand the paramedic crew on scene not only treat
the patient and not have their treatment affected by what many would consider, on
face value, an offensive remark, but also consider the child’s welfare and whether
the threshold for intervention by child protection services is warranted.
1 Is this a form of child abuse?
2 If so, would you report it?
3 Why?
4 Following the referral, if indeed you considered it correct to refer the
above facts to child protection services, what solution would you most
like to occur, from the following?
a For John Jnr to be removed from the family home and placed into
foster care?
b For John to be removed from the family home?
c For a social/health worker to attend the family home and suggest
positive parenting strategies?
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d None of the above; parents have the right to parent without the
interference of health and social care save in only the most
extreme cases?
5 Is this statement by John an expression of exasperation based on the pain
that he is in and, therefore, can his apparent disdain and contempt be
excused by the pain he is currently experiencing?
a Is it reasonable to excuse this behaviour and, therefore, ignore the
issues peripheral to the patient’s complaint?
As with physical and sexual abuse, this form of abuse can be difficult to identify.
Its commonality is quite probable. Apart from actually being physically present and
witnessing events such as the ones stated above, this type of abuse can go undetected
for some time. Challenging and negative behaviour displayed by the victim may be
a source of suspicion. It may be an offhand or throwaway remark made by the
child’s care giver that may be a clue.
Paramedics, in the course of their normal response, must remain alert, especially
when dealing with children. Paramedics should refrain from being put off by chal-
lenging or disruptive behaviour exhibited by a child, no matter how discourteous
the behaviour is. This needs to be reinforced whether the child is a patient or part
of another patient’s social context. As with all types of suspected child abuse, it is
not for the paramedic to confront or challenge but to identify it. Paramedics must
remain supportive in their role and, in so doing, they may allow a window of
opportunity for the recipient of alleged abuse to request help and possibly interven-
tion. Paramedics may be able to observe the relationship between the caregiver and
the child.48 Such observations may be sufficient and, in this way, emotional/
psychological abuse differs from sexual abuse as this will ostensibly be a covert act.
Paramedics should understand that the suspected abuse could be as a result of
parental coping in a given set of circumstances rather than an act of malice. It may
be that a parent or caregiver requires suitable support to allow them to parent
effectively.
Neglect
Ideally, all children should be brought up in a loving, safe, nourishing and sup-
portive environment. Children are proof of the adage that ‘you get out what
you put in’. That is, with positive parenting children will, hopefully, although not
exclusively, go on to develop into well adjusted, dependable members of society.
Neglect may occur without malicious intent: it might be due to the death of a
parent; loss of parental income; health issues related to one or more carers; addi-
tional siblings being introduced into an already over-stretched family unit; or to
ineffective parenting due to issues too numerous to describe exhaustively. It could
also be due to environmental factors, such as a result of natural disasters and
loss of personal possessions leading to a period of displacement and the inevitable
frustration caused.
Conversely, a child may be neglected maliciously or abandoned when adult care
is available. The signs of neglect may become apparent in many ways. Similar to
other forms of child abuse, the harm caused by the neglect may filter into other
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forms of child abuse. For instance, if a child is not being provided with adequate
clothing or their clothing is too small, too big or is very dirty, this can impact
psychologically on the child and, therefore, merge with emotional abuse due to
possible exposure to ridicule by the child’s peers at school.
This form of abuse is considered to be one the most common forms of reported
abuse and, therefore, there is a greater likelihood that paramedics could be called
to provide clinical support. Neglect bears similarities with emotional abuse and
psychological harm but is considered distinct from this type of harm. Neglect will
usually manifest itself physically, based on the condition known as ‘non-organic
failure to thrive’49, which can lead to presentations considered inappropriate for the
child’s age. It can also occur when the child is unwell and medical intervention is
not summoned, which will lead to the child’s health or condition deteriorating.
Questions that the attending paramedic may seek to ask themselves as part of
their patient history are:
• Is the child not putting on weight because the carer is refusing to feed
the child?
• Is the child not putting on weight because the carer is unable to feed the
child effectively due to the carer’s own developmental, mental health or
socioeconomic issues?
• Is the child not putting on weight despite adequate feeding and attention
from the carer due to the patient having a medical problem (e.g. worms),
where medical intervention has not been sought due to the carer’s limited
understanding of the situation?
It is important to mention that the signs of neglect can be confused with other
conditions that are not the result of neglect.50 For example, many skin conditions
could mimic the signs of neglect, and the paramedic should remain cautious about
differential reasons for these presentations.
Fabricated or induced illness by carers (FII)

Fabricated or induced illness by carers (FII)51 is also known by another term,
‘Munchausen syndrome by proxy’, which is also widely used, but FII will be used
here. This form of child abuse occurs when a carer creates events or reports anecdot-
ally that a child is unwell or injured in order to receive inappropriate treatment.
The child could also suffer physical abuse, not merely as an infliction of injury as
a punitive measure but also in order to receive medical help and attention, which
is, in fact, unnecessary.
In this context the paramedic needs to be aware of age inappropriate intentional
injuries versus, for example, accidental poisoning. They should remain alert to carers
who access multiple healthcare providers – ‘doctor shopping’52 – as a way of inflict-
ing abuse and avoiding detection. Professor Sir Roy Meadow identified how FII can
progress in the following three stages:
1 false illness story alone
2 false illness story plus fabrication of signs
3 induced illness.53
200
Each is harmful, but how the harm affects the child differs. The first may involve
limited school attendance or unnecessary medical tests (such as taking blood) and
needless painful procedures. The second may involve the carer withholding treat-
ment to ensure the child does not improve, changing details on doctors’ letters or
interfering with medical samples to falsify results. The third could involve the carer
over-medicating the child to the point of toxicity or inflicting injury to actually
generate the requirement for medical attention.
The paramedic must be sensitive in the management of incidents where FII is
suspected. In no way should they challenge the carer about the child’s presentation.
It is important to treat the patient objectively and report the findings at an appro-
priate level. Carers may be extremely shrewd about medical matters and will be
suspicious of a health professional’s interference, which they view as an attack on
themselves. It is therefore vital that appropriate supportive pre-hospital measures
are implemented, such as notifying receiving facility staff without alerting the
suspicion of the carer who may be responsible for the alleged fabrication.
Cultural issues related to child protection

Pluralism exists in all parts of the developed world and it is important to celebrate
a person’s cultural heritage and their beliefs. Paramedics, therefore, need to be cul-
turally aware and culturally competent.54 Multiculturalism stems from migration.
Immigration can be the result of social choices or of people seeking asylum or
refugee status on the basis of human rights abuses. The reasons for migration are
multifactorial and cannot be categorised as a single type. To people born or brought
up outside of Australia and New Zealand, the cultural transition to a new country,
its language and its laws takes time and requires support.
Some immigrants may hold views and carry practices that are contrary to the
predominant culture that exists within their currently domiciled country. Some
practices that are considered acceptable and sometimes even positively encouraged
in their country of origin may be contrary or even unlawful if practised in Australia
and New Zealand. At the heart of the culture and child protection intersection lies
the need to balance the rights of the individual with the right of the state to govern
and implement laws that it considers appropriate and equitable.55 The question of
cultural issues regarding child protection is worthy of a text of its own but, for
reasons of brevity, cannot be included here in great detail.
However, one area that requires mention is the practice that is unlawful in
Australia and New Zealand of female genital cutting (FGC), female circumcision
or female genital mutilation (FGM), although the practice is considered culturally
acceptable and is practised in many other countries. In Australia and New Zealand,
it is unlawful irrespective of whether a person consents to it or not. A patient cannot
consent to an unlawful procedure.56
The terms for these procedures themselves are highly problematic because they
feature within the designation labels that the recipient of such a procedure may not
welcome. A recipient of an ethnically performed clitoridectomy will not welcome
the appellation that they have been mutilated.57 By the same token, a society that
outlaws the abuse of such a procedure will feel compelled to use the weightiest
language possible to decry the abuse.58
201
Generally, though not exclusively, this practice occurs before the age of puberty59;
hence, the topic is featured as part of this chapter on child protection. Despite
its unlawful nature, the practice may still be observed by some groups who sub-
scribe to this procedure as part of their cultural identity. Due to migration60 from
countries where the practice is held to be most prevalent61 the procedure may be
carried out without knowledge of the state62 – akin to what is euphemistically
known as a ‘back street procedure’ – and, therefore, may possibly not be performed
aseptically. Paramedics may be called to respond to patients who have become
septic following the removal of the clitoris or one of the other permutations of
this act.
Not only will the attending paramedics treat the patient, but they will also
need to consider filing a report to the organisation responsible for child protec-
tion within their state, territory or country.63 Due to the illegality of a non-
clinically sanctioned clitoridectomy – or other procedures involving operations on
the genital area – the police will need to be informed. Balancing the need to
maintain cultural links64 with this abuse is not considered culturally relevant in
Australia and New Zealand.
Case 9.3 highlights the importance of being culturally sensitive and respectful
but also exemplifies that some cultural beliefs are incompatible not just ethically
but legally as well.
Despite suspicions, there are limits as to what is considered appropriate in terms
of examination. Such an examination may be clinically indicated but not always in
a pre-hospital environment. The management option is to treat and transfer, and
the crew must refer their concerns to the treating doctor. As you approach the fol-
lowing questions, consider your own understanding of differing cultural groups and
how to manage conflict with respect to beliefs and values that may be, in the
extreme, incompatible. Consider also whether repercussions following a referral to
child protection services may involve accusations of discrimination and how that
would affect your decision to report.
1 What could be causing this patient to be septic?
2 Would it be appropriate to suspect that she may have had an operation
associated with her genitals?
3 Why is it also important to be respectful of the family’s wishes?
Case 9.3
Female genital mutilation
You are called to a 12-year-old girl of African origin, possibly sub-Saharan, who
appears to be septic. She has been living in Australia for 10 months. The family
appear very traditional and only a little English is spoken. Neither the patient nor
family members are particularly encouraging with respect to your requests to
examine the patient. The patient and the family shake their heads when you ask
whether the patient has had a recent operation or infection.
202
4 How would you go about documenting your suspicion?

5 How would you manage the situation if the family appeared reluctant for
the patient to attend an appropriate health care facility, believing that
you are a doctor and you could prescribe medication for her illness to
cure her?
6 How would you manage a referral based on your suspicion that the sepsis
is related an unlawful procedure?
a Refer to an emergency department doctor/paediatrician?
b Refer to child protection services?
c Refer to the police?
d All of the above?
Another less extreme example of cultural difference is in relation to putting a
child down to rest at night. There are many cultural and social differences with
respect to child-rearing practices. To minimise the risk of sudden infant death syn-
drome, current policy is for the newborn baby to be placed on its back, in its own
cot, next to the parental bed for the first year of the child’s life.65 Some cultural
groups may prefer and recommend for the child to sleep in the parental bed with
all safety precautions taken without adverse effect to the infant. It is important to
mention that, if parents choose to share their bed with their newly born, it does
not mean that they are providing substandard care by not following popular guid-
ance with respect to sleeping and the newborn in Australia and New Zealand.
However, a real and significant danger exists where two people share their bed with
an infant and one or both adult persons have consumed large amounts of alcohol
and/or drugs (be they recreational or prescribed sedatives) and they roll, during
sleep, onto the infant. The most common effect of the alcohol or drugs with respect
to this example will be to desensitise the intoxicated to the infant’s movements
underneath them; the child will then be at increased and significant risk of crush
injuries, asphyxiation and death.
Though not the primary focus, should a paramedic attend a sudden infant death
case, they may question whether the parent’s act contributed, unintentionally, to
the child becoming apnoeic.66 Not to be misunderstood, this tragic event is not
abuse per se, but it does serve to highlight that there are potential cultural issues
with respect to child-rearing practices that the paramedic should be aware of.
However, where one or both adults sharing a bed with an infant is intoxicated and
the child is subsequently suffocated, it is not an issue of culture but one the para-
medic nevertheless needs to be aware of.
Legal and other issues concerning child protection intervention

The previous sections have focused on the health and social aspects of child protec-
tion. The legal system, although a patchwork quilt of legislation, has codified the
responsibilities of reporters, and at what point the abuse and neglect is considered
to have breached these, to be the catalyst for child protection workers and the courts
to intervene on behalf of the child. The following section addresses these points in
more detail.
203
The threshold for child protection intervention

It will be clear by now that the presentation of abuse is of a highly complex, often
subjective, nature. Reports indicate that, although in hindsight the hallmarks of
abuse seemed apparently obvious, children in these circumstances are often missed
by the systems designed to protect them.67 All states and territories in Australia and
in New Zealand have legislated for a threshold for intervention for child protection
services to act on behalf of an abused child. Quite simply, if the reported abuse is
considered to fall below the threshold set by the legislation, no action will be taken
by child protection services. If the threshold is breached, child protection services
will seek to remove the child, remove the abuser or take another form of appropri-
ate, available action.
The most common words used in the legislation are abuse, injury, harm, mal-
treatment and significant. These words rarely share a common definition across the
various jurisdictions: criminal, health, family and child protection legislation
are prone to subtle but nonetheless important differences, which can be seen in
the appendices supplied within this chapter. Despite this, the legislation does
provide a legal justification for intervention when the abuse, injury, maltreatment
or harm is reported. A paramedic crew, similar to many other professional groups,
may find themselves in disagreement with what they consider breaches of the
threshold of abuse. An example of this is best demonstrated by considering the
age and experience of the paramedics. One may be a parent with a young family
who may not consider a care provider’s behaviour toward a child to be abusive
but an expression of exasperation at the child’s behaviour. The other partner,
young, with little experience and no children of their own, may view the case
differently.
Appendix 9.7 shows the differences, in terms of threshold policy, with respect to
the jurisdictions discussed in the chapter. Deciding when to intervene on behalf of
a child is a difficult process for the reasons stated above. The legislation does at least
provide operational parameters and guidelines for paramedics new to this area.
To précis the points made in previous sections, children can be abused physically,
sexually and emotionally/psychologically and they can be neglected. If a paramedic
suspects that any or all of the four types of abuse has occurred, whether in the past
or currently, or is at risk of happening, the abuse, harm, injury or maltreatment has
breached the legislative threshold. The paramedic will need to consider reporting
and referring the suspected abuse in an appropriate and timely manner. New South
Wales and Victoria require the harm to be significant, whereas Queensland requires
an unacceptable risk of apprehended harm to have occurred before the threshold for
intervention is breached. Difficulties persist. The paramedic could deem that either
the risk of harm is not significant (applicable to New South Wales and Victoria) or
the risk of harm is acceptable (applicable to Queensland). The paramedic will then
need to determine what side of caution they choose to err on.
Rule of optimism and child abuse

There is a tendency for humans consciously to see what they wish to see. They liter-
ally have difficulty seeing things with negative connotations while seeing with
increasing ease items that are positive.68
204
Even among people tasked in the role of child protection, it is widely believed
that workers fail to identify abuse because they choose to believe it is not actually
happening.69 They would rather believe that people are not capable of committing
atrocious acts against children or they are simply failing in their duty to provide
the necessities of life so, either consciously or subconsciously, they choose to believe
a child is not being abused. This sentiment is arguably born out of self-preservation
and is a structured coping mechanism.70
This form of psychological self-defence may be formed on the basis of preconcep-
tions and misguided preconceived beliefs. It is, therefore, the responsibility of
education to limit the myths applicable to child protection work, formed partly in
truth and allowed to flourish unabated into anecdote masquerading as fact. By
understanding child abuse and neglect through education, ignorance is prevented.
Being aware of the rule of optimism and the risk that it increases the likelihood of
harm will help people who may encounter abused children through the course of
their work and may help to combat its effects.71
Being aware of the pitfalls, possible prejudices and the subjective nature
associated with suspected abuse and neglect in advance will help paramedics treat
and support their patients appropriately. Knowing what to do with the information
and the responsibilities associated with reporting child abuse are critical to this
practice. Understanding our personal responses and unspoken prejudices through
self-reflection is a pillar of sound clinical practice, rarely more important than in
consideration of this subject.
Mandatory reporting
Paramedics may, at scenes of child-related injury or fatality, ask themselves as part
of their scene management, [can] ‘this family contain the potential for inflicting
death or life-limiting injury to the child, and how will I know?’72 Paramedics are
not currently mandated to report child abuse in Australia and New Zealand, though
they have a discretionary duty to report child abuse and neglect. Mandatory report-
ing places a legal duty on certain classes of professions when presented with sus-
pected abuse. Thus, a reporter mandated to refer will expose themselves to be liable
at law for failing in their duty to the affected child.
Discretionary reporting does not prevent a person from reporting but the moral
obligation to report nevertheless exists. Irrespective, what lies at the heart of report-
ing child abuse is a need for education and preparation for the demands that attend-
ing to suspected cases of abuse or neglect will place on a paramedic.73 It is important
to know who currently has a mandatory duty to report, in the various jurisdictions
discussed. It is also important to understand the multifaceted issues in relation to
child protection. Balancing the need for education with the responsibility for report-
ing also needs to be addressed. Appendix 9.8 states who is mandated to notify in
the relevant jurisdictions.
Australia subscribes to mandatory reporting whereas New Zealand, similar to the
United Kingdom, does not. Proponents of mandatory reporting consider it a valu-
able tool in case finding and identification,74 whereas detractors claim that the
problem with child protection services does not lie with case finding but with case
management and use of resources and funding.9 Perhaps then, rather than imposing
205
liability on individuals to report and spending money on pursuing them in court,

the money could be better spent on education and improving communication
within all groups, bodies and departments responsible for child protection.75 It is
imperative that paramedics have training in child welfare and protection issues, but
not at the risk of calls for help not being made owing to a fear of reprisal from child
protection services and through the courts.76
Reporting suspected cases of child abuse

Any report or referral must be factually accurate, objective and without pejorative
comment or personal opinion. The reporter should take into consideration
other possible causes for physical injuries or manifestations. Paramedics must avoid
statements that they are not qualified to make. Despite observing what paramedics
believe to be abuse, they must not exaggerate reports in the hope of ensuring a
successful outcome for the child.77 The report/referral should be written as con-
temporaneously as possible to the time the events became apparent. If a disclosure
is made, the paramedic would be wise to report the disclosure using language as
close as possible to the words used by the person making the disclosure. Paramed-
ics should report on what they witnessed only and, in so doing, they must report
using language effectively and unambiguously, though not definitively.
An example of this could be a small, round, apparently deep burn to a young
child’s arm, which the paramedic may believe in all likelihood was caused by
pressing a lit cigarette against the child’s arm, rather than brushing against a lit
cigarette held in an ashtray or in a carer’s fingers as the child moved by. Depend-
ing on the reason for the call made to the ambulance service, and whether the
paramedic’s attention was drawn to the injury, it would be appropriate for
the paramedic to inquire as to the cause of the burn as part of the history. The
absence of a plausible explanation should focus the paramedic’s mind on the
importance of reporting the injuries for further investigation. This allows flexibil-
ity, should other evidence eventuate, and allows the paramedic to understand
whether they have been helpful to child protection services, and possibly the
police and the courts.78
Paramedics should take a pragmatic approach to reporting. As previously stated,
they should not make any accusations or ask direct questions that may arouse sus-
picion in the parties connected to the child. They may, after all, be innocent, and
any unfounded allegations could be harmful to the child and the care provider.
The paramedic’s role is one of reporting and it is not for them to state that child
abuse is or is not taking place. Their role needs to be supportive, appropriate and
enabling.
As part of a risk assessment for child abuse, the paramedic will not have a great
deal of time to make a conclusive assessment.79 Child protection is multifaceted
and requires a multidisciplinary team approach to resolving allegations, disclosure
and suspicions of abuse. Paramedics are a cog in the wheel of child protection. This
should not be viewed in a pejorative context but lauded as being of vital service to
the various teams who are also part of a much bigger network and share a common
goal – to eradicate child abuse and neglect.33
206
Right to privacy versus state intervention

Shouldn’t parenting be the last bastion of freedom and democracy? Shouldn’t the
last place for the state to warrant intervention be the home? Surely people should
be allowed to bring up their children in a manner they consider appropriate. They
should not have to be concerned for the opinions of others who they have called
in to assist with a matter that may not be directly connected to child welfare and
wellbeing. Sadly, this is not always the case and children fall foul of the adult world
all too frequently, as has been shown. The right to privacy is generally accepted as
a basic human right but exceptions do exist and, where there is a belief that child
abuse is occurring, that overrides any claims of invasion of privacy. The child’s
interests are paramount with respect to child abuse.80
As noted above, child abuse is not always the result of intention but may be due
to various other issues affecting a care giver. But sometimes, children are abused out
of malice by deeply offensive and inappropriate acts. Both situations would qualify
for a referral to child protection groups but the solution to ending the abuse and
neglect may be very different. Sometimes, children need the help of the wider com-
munity, and the policy of acting in the best interests of an abused or neglected child
outweighs the right of someone to perpetuate any form of abuse from the privacy
of their home. However, balancing the rights of the child to have their basic needs
met against the carer’s right to govern his or her own individual freedoms without
interference will never be straightforward.
It should not be a difficult moral conundrum to address; recipients of abuse –
although not exclusively – can and do become abusers later in life. Addressing this
and not allowing it to persist could be all that is required to reduce the incidence
of abuse. The positives associated with providing a victim of abuse with the neces-
sary support to manage issues associated with a history of abuse and to then go on
and make an effective contribution in their adult lives are self-evident. Rather than
duplicating the horrors that befell them as a child, the child survives into adulthood
and does not succumb and repeat the sins of the carer.
Conclusion
The purpose of this chapter has been to address the challenges of child protection
and educate paramedics about what constitutes child abuse and neglect. Childhood
is something worth protecting and it is in society’s long-term interest to promote a
healthy, loving, affectionate, nurturing environment in which children can develop.
The existence of child abuse and the need for child protection systems demonstrate
that not every child will be so fortunate. Paramedics do not have an exclusive legal
duty to report, but responsibilities exist and it is vital that paramedics are informed
and have child protection matters in mind.
By now you should understand:
• A child is generally any person under 18 years for the purposes of child
protection.
• One aspect of child abuse rarely occurs in isolation; there may be other
factors present that increase the risk of exposure to child abuse and
neglect.
207
• Detection and disclosure can be highly problematic but not

insurmountable.
• The types of child abuse consist of:
- physical abuse
- sexual abuse
- emotional/psychological abuse
- neglect.
• But child abuse may also include:
- fabricated or induced illness by carers (FII)
- witnessing domestic/intimate partner violence.
• Cultural sensitivities are important with respect to child protection.
• Each jurisdiction discussed legislates for a threshold for intervention on
behalf of the child to bring about the end of the abuse.
• Thinking the best of a situation may, on some occasions, allow the abuse
to be perpetuated.
• Reports and referrals must be objective and devoid of emotion no matter
how upsetting the situation is.
• Challenging behaviour in a child may be the result of a coping
mechanism due to abuse the child has suffered.
Review questions
To help you with your understanding of this chapter, please read and answer
the following questions.
1 Do paramedics have a mandatory or discretionary/voluntary duty to report
suspected incidences of child abuse and/or neglect within the various juris-
dictions in Australia and New Zealand?
2 Why is it important to be in charge of your feelings should a disclosure be
made to you?
3 Is child abuse only prevalent in one socioeconomic group?
4 Although the child is not physically injured, is witnessing domestic or inti-
mate partner violence a form of child abuse?
5 You are called to a 3-year-old male presenting with general malaise and low
grade fever. The child’s cheeks have a bright red rash, which you consider
may be the result of inflicted physical contact by another individual. Is it
possible to make a differential finding for this presentation? If so, what
could, clinically, be responsible for the redness on the cheeks? Can physical
abuse be completely discounted?
208
Appendix 9.1
Legislation defining ‘child and young person’
Jurisdiction Legislation/bill Article/section Definition
International Convention on the Article 1 Every human being below the age of
convention Rights of the Child 18 years
(CROC)
Commonwealth Family Law Act Section 4 A person who is under 18 years
1975
Commonwealth Section 5 (1) All people below the age of 18
Commissioner for years
Children and Young
People Bill 2010
Australian Children and Young Section 11 Child Under 12 years
Capital Territory People Act 2008 Section 12 Young person 12–18 years
New South Children and Young Section 3 A person who is under the age of
Wales Persons (Care and 16 years
Protection) Act 1998 Section 221(1)(a) A person under the age of 15 years
Children’s
employment
Northern Care and Protection Section 13 A person less than 18 years of age
Territory of Children Act
2007
Queensland Child Protection Act Section 8 An individual under 18 years
1999
South Australia Children’s Section 6 A person under 18 years of age
Protection Act 1993
Tasmania Children, Young Section 3 A person under 18 years of age
Persons and their
Families Act 1997
Victoria Child Wellbeing and Section 3 A person who is under the age of
Safety Act 2005 18 years
Western Children and Section 3 A person who is under 18 years of
Australia Community Services age
Act 2004
New Zealand Children, Young Section 2(1) Child A boy or girl under
Persons and Their the age of 14 years
Families Act 1989 Young person A boy or girl of or
over the age of 14
years but under 17
years
209
Appendix 9.2
Child protection legislation in Australian states and territories1
Jurisdiction Principal act Other relevant acts/
legislation
Australian Capital Children and Young People Act Adoption Act 1993 (ACT)
Territory 2008 (ACT) Human Rights Act 2004 (ACT)
(Office for Children, Youth and (Note: Not all provisions are in Human Rights Commission Act
Family Support, Department force) 2005 (ACT)
of Disability, Housing and Public Advocate Act 2005 (ACT)
Community Services) Family Law Act 1975 (Cth)
(www.legislation.act.gov.au)
New South Wales Children and Young Persons Children and Young Persons
(Department of Community (Care and Protection) Act 1998 (Care and Protection)
Services) (NSW) Amendment (Parental
(www.legislation.nsw.gov.au) Responsibility Contracts) Act
2006 (NSW)
Child Protection (Offenders
Registration) Act 2000 (NSW)
Crimes Act 1900 (NSW)
Commission for Children and
Young People Act 1998 (NSW)
The Ombudsman Act 1974
(NSW)
Family Law Act 1975 (Cth)
Reform: Children and Young
Persons (Care and Protection)
Amendment Bill 2009 –
introduced to make further
provision with respect to
out-of-home-care designated
agencies and the provision of
information to the Children’s
Guardian and the Director-
General of the Department of
Community Services
Northern Territory Care and Protection of Children Information Act 2006 (NT)
(Children, Youth and Families, Act 2007 (NT) (Note: Not all Disability Services Act 2004
Department of Health and provisions are in force) (NT)
Families) Criminal Code Act 2006 (NT)
(www.nt.gov.au/lant/hansard/ Family Law Act 1975 (Cth)
hansard.shtml)
210
Appendix 9.2
Child protection legislation in Australian states and territories continued...
Jurisdiction Principal act Other relevant acts/
legislation
Queensland Child Protection Act 1999 (Qld) Commission for Children
(Department of Communities) and Young People and Child
(www.legislation.qld.gov.au/ Guardian Act 2000 (Qld)
OQPChome.htm) Education (General Provisions)
Act 2006 (Qld)
Public Health Act 2005 (Qld)
Adoption of Children Act 1964
(Qld)
South Australia Children’s Protection Act 1993 Young Offenders Act 1994 (SA)
(Families SA; Department for (SA) Adoption Act 1988 (SA)
Families and Communities) Children’s Protection
(www.legislation.sa.gov.au/ Regulations 2006 (SA)
index.aspx) Family Law Act 1975 (Cth)
Family and Community Services
Act 1972 (SA)
Tasmania Children, Young Persons and The Family Violence Act 2004
(Child Protection Services, their Families Act 1997 (Tas) (Tas)
Department of Health and Family Law Act 1975 (Cth)
Human Services)
(www.thelaw.tas.gov.au/
index.w3p)
Victoria Children, Youth and Families Working with Children Act
(Children Protection and Act 2005 (Vic) 2005 (Vic)
Juvenile Justice Branch; Child Wellbeing and Safety Act
Department of Human Services) 2005 (Vic)
(www.legislation.vic.gov.au/) The Charter of Human Rights
and Responsibilities Act 2006
(Vic)
Western Australia Children and Community Working with Children
(Department for Child Services Act 2004 (WA) (Criminal Record Checking) Act
Protection) 2004 (WA)
(www.slp.wa.gov.au/statutes/ Family Court Act 1997 (WA)
swans.nsf) Adoption Act 1994 (WA)
1
Online. Available: http://www.aifs.gov.au/nch/pubs/sheets/rs14/rs14.html.
211
Appendix 9.3
Statutory child protection authorities1
Jurisdiction Responsible authority
ACT Office for Children, Youth and Family Support – Department of Disability, Housing
and Community Services
NSW Community Services, Department of Human Services NSW
NT Children, Youth and Families – Department of Health and Families
QLD Department of Communities (Child Safety Services)
SA Families SA – Department of Families and Communities
Tas Child Protection – Department of Health and Human Services
Vic Child Protection and Family Services – Department of Human Services
WA Department for Child Protection
1
Australian Government. Mandatory reporting of child abuse. Australian Institute of Family Studies. Online. Available:
http://www.aifs.gov.au/nch/pubs/sheets/rs3/rs3.html.
Appendix 9.4
Possible accidental injuries
Infant Child
Area of Type of Possible Area of Type of Possible causes
body injuries causes body injuries
Forehead Minor cuts Impacting Head Minor cuts Running
Nose Bruises Grazes with furniture Eyes Bruises Tripping
as mobility Grazes Play fighting
Chin improves Nose Climbing
Chin
Elbows Bruises Furniture or Elbows Bruises Running
Grazes carpet friction Grazes Tripping
Play fighting
Climbing
Hands Grazes Furniture or Hands Grazes Through normal
carpet friction Cuts exploration of outdoor
environment
Fingers Cuts Caught in Fingers Cuts As a result of practising
Marks left unsecured doors Bruises fine-motor skills such as
through or toys with using an age appropriate
catching fingers hinges and knife or scissors
hard flaps General play
Knees Bruises Furniture or Hips Bruises Running into furniture
Grazes carpet friction Grazes
Knees Cuts Running
Bruises Tripping
Grazes General play
Shins Bruises Falling or hitting hard
objects while running
212
Appendix 9.5
Possible non-accidental injuries
Infant Child
Area of Type of Possible causes Area of Type of Possible
body injuries body injuries causes
Head Significant Striking with an Head Lacerations Striking
laceration object Internal
Fractures Shaking haemorrhaging
Internal Throwing
haemorrhaging
Eyes Bruises Striking Eyes Bruises Striking
Cuts Cuts
Nose Cuts Striking Nose Damaged Striking
cartilage
Cheek Bite marks Biting Cheek Burns Applying lit
cigarette
Mouth Torn fraenulum Forcing pacifier/ Mouth Cuts Striking
feeding bottle into Bruises
mouth
Neck Bruises Forceful Neck Bruises Forceful
pressure pressure
Attempted Attempted
asphyxiation asphyxiation
Shoulders Bruises Forceful direct Shoulders Bruises Forceful direct
pressure pressure
Arms Bruises Striking Arms Bruises Striking
Fractures Twisting Fractures Twisting
Bite marks Biting Bite marks Biting
Chest Burns Grasping Chest Bruises Striking
Scalds Applying lit
Bruising cigarette
Anus Cuts Sodomy Anus Cuts Sodomy
Bruising Bruising
Genitals Bruises Sexual abuse Genitals Bruises Sexual abuse
Buttocks Burns Immersion burns Buttocks Bruises Kicking
Bruises Forcing child to sit
on hot stove
Kicking
213
Appendix 9.5
Possible non-accidental injuries continued...
Infant Child
Area of Type of Possible causes Area of Type of Possible
body injuries body injuries causes
Legs Abnormal Twisting Legs Bruises Striking
shaped bruising Striking Fractures Kicking
patterns Applying hot iron
Scalds
Fractures
Feet Scalds Immersion burns Feet Burns Applying lit
cigarette
Appendix 9.6
Age of consent laws
Jurisdiction Legislation Section Definition
Australian Capital Crimes Act 1900 Section 55 Age of consent is 16
Territory It is a defence if one participant
was above the age of 10 and the
other participant was no more
than 2 years older than them and
the parties consented
New South Wales Crimes Act 1900 Section 66C Age of consent is 16
Northern Territory Criminal Code Act 1983 Section 127 Age of consent is 16
Queensland Criminal Code Act 1899 Section 208 Age of consent for anal sex is 18
Section 215 Age of consent for vaginal sex
is 16
South Australia Criminal Law Section 49 Age of consent is 17
Consolidation Act 1935
Tasmania Criminal Code Act 1924 Section 124 Age of consent is 17
It is a defence if one participant
than 3 years older and the parties
consented
It is a defence if one participant
than 5 years older and the parties
consented
(The above two examples do not
apply to anal intercourse)
Victoria Crimes Act 1958 Section 45 Age of consent is 16
Western Australia Criminal Code Act Section 312 Age of consent is 16
Compilation 1913
New Zealand Crimes Act 1961 Section 134 Age of consent is 16
214
Appendix 9.7
Threshold of intervention for child protection
Jurisdiction Legislation Section Threshold for intervention1
(overview)
Australian Children and Young Section 345 (1)(a)(i) Has been abused or
Capital People Act 2008 neglected2
Territory (ACT) (1)(a)(ii) Is being abused or
neglected
(1)(a)(iii) Is at risk of abuse or
neglect
New South Children and Young Section 23(1)(a–f) At risk of significant harm
Wales Persons (Care and
Protection) Act 1998
Northern Care and Protection of Section 20 Suffered or is likely to suffer
Territory Children Act 2007 harm or exploitation
Queensland Child Protection Act Section 10 Has suffered harm, is
1999 suffering harm or there is an
unacceptable risk of suffering
harm
South Australia Children’s Protection Section (1)(b)(i) Has suffered, or is likely to
Act 1993 suffer, physical or psychological
injury
Tasmania Children, Young Persons Section 4(1)(a) The child has been, is being,
and Their Families Act or is likely to be, abused or
1997 neglected
Victoria Children, Youth and Section 162(1) Has suffered or is likely to
Families Act 2005 (a–f) suffer significant harm
Western Children and Community Section 28 (2)(c) Has suffered, or is
Australia Services Act 2004 likely to suffer, harm
New Zealand Children, Young Persons Section 14 (1)(a) Is being or is likely to
and Their Families Act be harmed
1989
1
For a definitive understanding of the legislation, please refer to the complete Acts stated.
2
Section 343, Children and Young People Act 2008, defines neglect as a failure to provide the necessities of life which
includes but is not limited to: food, shelter, clothing and health care treatment.
215
Appendix 9.8
Who is mandated to report?
Jurisdiction Legislation Mandatory reporting legislation in What is to be
Australia and New Zealand1 reported
Commonwealth Section 67ZA The Registrar or a Deputy Registrar of a Abuse
Family Law Act Registry of the Family Court of Australia; Ill treatment
1975 or the Registrar or a Deputy Registrar of Psychological
the Family Court of Western Australia; harm
or a Registrar of the Federal Magistrates
Court; or a family consultant; or a family
counsellor; or a family dispute resolution
practitioner; or an arbitrator; or a lawyer
independently representing a child’s
interests
Australian Section 356 A doctor; a dentist; a nurse; an enrolled Physical abuse
Capital Territory Children and nurse; a midwife; a teacher at a school; Sexual abuse
(ACT) Young People a person providing education to a child
Act 2008 or young person who is registered,
or provisionally registered, for home
education under the Education Act 2004;
a police officer; a person employed to
counsel children or young people at a
school; a person caring for a child at a
child care centre; a person coordinating
or monitoring home-based care for a
family day care scheme proprietor; a
public servant who, in the course of
employment as a public servant, works
with, or provides services personally to,
children and young people or families;
the public advocate; an official visitor; a
person who, in the course of the person’s
employment, has contact with or provides
services to children, young people
and their families and is prescribed by
regulation
216
Appendix 9.8
Who is mandated to report? continued...
New South Section 27 A person who, in the course of his or Neglect
Wales Children and her professional work or other paid Restrictive
Young Persons employment delivers health care, access to
(Care and welfare, education, children’s services, education for an
Protection) Act residential services, or law enforcement, eligible child
1998 wholly or partly, to children, and a person Physical abuse
who holds a management position in Sexual abuse
an organisation the duties of which Ill treatment
include direct responsibility for, or direct Exposure to
supervision of, the provision of health domestic
care, welfare, education, children’s violence
services, residential services, or law Psychological
enforcement, wholly or partly, to children harm
Northern Section 26 Care Health practitioners (sexual abuse only) Physical,
Territory and Protection and any person with reasonable grounds psychological or
of Children Act emotional abuse
2007 Neglect
Sexual abuse or
exploitation
Exposure
to physical
violence
Queensland Section 148 A responsible person … of an entity Physical abuse
Child Protection conducting a departmental care service Sexual abuse
Act 1999 or a licensee Exploitation
Section 191 A doctor or registered nurse (s158 defines Emotional abuse
Public Health professional for the purposes of the Act) Psychological
Act 2005 abuse
Neglect
Commission for The Commissioner for Children and
Children and Young People
Young People
and Child
Guardian Act
2000
217
Appendix 9.8
South Australia Section 11 A medical practitioner; a pharmacist; a Physical abuse
Children’s registered or enrolled nurse; a dentist; Psychological
Protection Act a psychologist; a police officer; a abuse
1993 community corrections officer (an officer Emotional abuse
or employee of an administrative unit Neglect
of the Public Service whose duties Sexual abuse
include the supervision of young or
adult offenders in the community); a
social worker; a minister of religion;
a person who is an employee of, or
volunteer in, an organisation formed
for religious or spiritual purposes; a
teacher in an educational institution
(including a kindergarten); an approved
family day care provider; any other
person who is an employee of, or
volunteer in, a government or non-
government organisation that provides
health, welfare, education, sporting or
recreational, child care or residential
services wholly or partly for children,
being a person who is engaged in the
actual delivery of those services to
children; or holds a management position
in the relevant organisation the duties of
which include direct responsibility for,
or direct supervision of, the provision of
those services to children
Tasmania Section 14 A medical practitioner; a registered nurse Sexual abuse
Children, Young or enrolled nurse; a person registered Physical injury
Persons and under the Health Practitioner Regulation Emotional injury
Their Families National Law (Tasmania) in the midwifery Other abuse
Act 1997 profession; a person registered under Neglect
the Health Practitioner Regulation Exposure to
National Law (Tasmania) in the dental family violence
profession as a dentist, dental therapist,
dental hygienist or oral health therapist;
a person registered under the Health
Practitioner Regulation National Law
(Tasmania) in the psychology profession;
a police officer; a probation
218
Appendix 9.8
officer appointed or employed under
section 5 of the Corrections Act 1997; a
principal and a teacher in any educational
institution (including a kindergarten); a
person who provides child care, or a child
care service, for fee or reward; a person
concerned in the management of a child
care service licensed under the Child
Care Act 2001; any other person who is
employed or engaged as an employee
for, of or in, or who is a volunteer in a
Government Agency that provides
health, welfare, education, child care
or residential services wholly or partly
for children; and an organisation that
receives any funding from the Crown for
the provision of such services; and any
other person of a class determined by the
Minister by notice in the Gazette to be
prescribed persons
Victoria Section 182 A registered medical practitioner; a Physical harm
Children, Youth person registered under the Nurses Act Sexual abuse
and Families 1993; a person who is registered as a Emotional harm
Act 2005 teacher under the Victorian Institute Psychological
of Teaching Act 2001 or has been harm
granted permission to teach under that Neglect
Act; the head teacher or principal of
a State school within the meaning of
the Education Act 1958 or of a school
registered under Part III of that Act;
a member of the police force; on and
from the relevant date, the proprietor
of, or a person with a post-secondary
qualification in the care, education or
minding of children who is employed
by, a children’s service to which the
Children’s Services Act 1996 applies or a
person nominated under section 16(2)(b)
(iii) of that Act; on and from the relevant
date, a person with a post-secondary
qualification in youth, social or welfare
219
Appendix 9.8
work who works in the health, education
or community or welfare services field
and who is not referred to in paragraph
(h); on and from the relevant date, a
person employed under Part 3 of the
Public Administration Act 2004 to
perform the duties of a youth and child
welfare worker; on and from the relevant
date, a registered psychologist; on and
from the relevant date, a youth justice
officer; on and from the relevant date,
a youth parole officer; on and from the
relevant date, a member of a prescribed
class of persons
Western Section 160 Court personnel, family counsellor, Assault
Australia Family Court family dispute resolution practitioner Sexual assault
Act 1997 or arbitrator a legal practitioner Exploitation
independently representing a child’s Psychological
interests abuse
Neglect
Exposure to
family violence
Various Licensed providers of child care or Physical abuse
regulations outside school hours care services Sexual abuse
associated Neglect
with child care
services
Section 124B A doctor, nurse, midwife, police officer or Sexual abuse
Children and teacher
Community
Services Act
2004
New Zealand At present there is no mandatory reporting of child abuse in New Zealand.2
The government are considering the debate associated with mandatory
reporting of child abuse3
1
Higgins, D et al. (2010) Mandatory reporting of child abuse and neglect. National Child Protection Clearinghouse resource
sheet. Australian Institute of Family Studies. Online. Available:
http://www.aifs.gov.au/nch/pubs/sheets/rs3/rs3.pdf (accessed 19 July 2011).
2
Salter, P (2009) Child protection legislation in Australia and New Zealand. Online. Available: http://www.ansvar.com.au/
Assets/Files/Child%20Protection%20Legislation%20in%20AustraliaV2.pdf (accessed 19 July 2011).
3
Mandatory reporting of child abuse to be considered New Zealand. Herald 17 April 2011.
Online. Available: http://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=10719963 (accessed 19 July 2011).
220
Endnotes
1 Bainham, A (2005) Children: The Modern Law, 3rd edn. Bristol: Family Law,
pp. 86–88.
2 Paton v. British Pregnancy Advisory Service Trustees and Another [1979] QB 276 per
Sir George Baker: 279.
3 Article 1, United Nations Convention on the Rights of the Child.
4 Alexander, R, Naylor, B and Saunders, B (2009) Re Michael and John 2003; T and N
(2003); M v H (2003). Lawful correction or child abuse: clarifying the boundaries.
Monash University. Online. Available: http://www.cjrc.monash.org/lawfulcorrection/
powerpoint-presentation.pdf (accessed 23 May 2012).
5 Australian Institute of Family Studies (2010) Mandatory reporting of child abuse.
The Australian government. Online. Available: http://www.aifs.gov.au/nch/pubs/
sheets/rs3/rs3.html (accessed 1 October 2011).
6 Markenson, D et al (2002) Knowledge and attitude assessment and education of
prehospital personnel in child abuse and neglect: report of a national blue ribbon
panel. Prehospital Emergency Care 6(3), pp. 261–272.
7 Official Launch of Child Protection Practitioners of Queensland and Inaugural
Leneen Forde Public Address 13 September 2011. Online. Available: http://www.
peakcare.org.au/media/user_files/documents/News/9_CPPAQ-public-address-handout-
A5.pdf (accessed 23 May 2012).
8 Re H (minors)(sexual abuse: standard of proof ) [1996] 2 WLR 8 per Lord Nicholls of
Birkenhead: 29.
9 Mathews, B and Bross, DC (2008) Mandated reporting is still a policy with reason:
empirical evidence and philosophical ground. Child Abuse and Neglect 32,
pp. 511–516.
10 Department of Community Services v K unreported per Magistrate Murray 1
December 1998 Local Court Albury.
11 D v NSPCC [1977] 2 WLR 201.
12 Northern Territory Government Board Inquiry into the Protection of Aboriginal
Children from Sexual Abuse 2007, p. 262. Online. Available: http://
www.inquirysaac.nt.gov.au/pdf/bipacsa_final_report.pdf (accessed 25 May 2012).
13 Hayes, M (1997) Reconciling protection of children with justice for parents in cases
of alleged child abuse. Legal Studies 17(1), p. 16.
14 Australia’s Most Trusted Professions (2010) Reader’s Digest Australia. Online.
Available: http://www.readersdigest.com.au/most-trusted-professions-2010-press
15 R v Terry [1955] VLR 114, 116.
16 Crimes Act 1900 (NSW) s61AA(2)(b).
17 Nielssen,OB, Large, MW, Westmore, BD and Lackersteen, SM (2009) Child
homicide in New South Wales from 1991 to 2005. Medical Journal of Australia 190,
pp. 7–11.
18 Children,Youth and Families Act 2005 (Vic) s10.
19 Mellor, MJ and Brownell, P (eds) (2006) Elder Abuse and Mistreatment: Policy,
Practice and Research. New York: Haworth Press. Summers, RW and Hoffman, AM
(eds) (2006) Elder Abuse: A Public Health Perspective. Washington, DC: American
Public Health Association.
221
20 Fortin, JES (1988) Legal protection for the unborn child. The Modern Law Review
51(1), pp. 54–83.
21 Williams, C (1995) Invisible Victims: Crime and Abuse Against People with
Learning Disabilities. London: J Kingsley.
22 Sher, L and Vilens, A (eds) (2010) Immigration and Mental Health: Stress,
Psychiatric Disorders, and Suicidal Behaviour Among Immigrants and Refugees.
New York: Nova Science.
23 Kempe, CH, Silverman, FN, Steele, BF et al. (1962) The battered child syndrome.
Journal of the American Medical Association 181, pp. 105–112.
24 Van Haeringen, AR, Dadds, M and Armstrong, KL (1998) The child abuse lottery
– will the doctor suspect and report? Physician attitudes towards and reporting of
suspected child abuse and neglect. Child Abuse and Neglect 22(3), pp. 159–169.
25 Mason, TP (1972) Child abuse and neglect. North Carolina Law Review 50, p. 293.
26 Lazoritz, S (1990) Whatever happened to Mary Ellen? Child Abuse and Neglect 14,
pp. 143–149.
27 Selwyn, D (2010) Jane Austen and Children. London: Continuum, p. 74.
28 Chase, K and Levenson, M (2000) The Spectacle of Intimacy: A Public Life for the
Victorian Family. Princeton: Princeton University Press, p. 109.
29 Forde Inquiry – Commission of Inquiry into Abuse of Children In Queensland
Institutions. Online. Available: http://www.communities.qld.gov.au/resources/
communityservices/community/forgotten-australians/forde-govtresp.pdf (accessed 25
May 2012).
30 Briggs, F and Hawkins, R (1997) Child Protection: A Guide for Teachers and Child
Care Professionals. St Leonards: Allen and Unwin, pp. 173–174.
31 Tomison, AM (2001) A history of child protection. Family Matters 60, pp. 46–57.
32 Feng, J-Y et al. (2010) Multidisciplinary collaboration reporting child abuse: a
grounded theory study. International Journal of Nursing Studies 47, pp. 1483–1490.
33 Skellern, C and Donald, T (2011) Suspicious childhood injury: formulation of
forensic opinion. Journal of Paediatrics and Child Health 47(11), pp. 771–775.
34 Shannon, JB (ed) (2009) Child Abuse Sourcebook, 2nd edn. Detroit: Omnigraphics,
p. 5.
35 Meadow, R (2007) Child abuse in society. In: Meadow, R, Mok, J and Rosenberg, D
(eds), ABC of Child Protection, 4th edn. Massachusetts: Blackwell, pp. 1–2.
36 Holzer, P and Bromfield, L (2010) Australian legal definitions: when is a child in
need of protection? Australian Institute of Family Studies. Melbourne: National
Child Protection Clearinghouse.
37 Maia, M. Lies abusers tell their victims. Online. Available: http://abusesanctuary.
blogspot.com/2007/01/lies-abusers-tell-their-victims.html (accessed 25 May 2012).
38 Jülich, S (2005) Stockholm syndrome and child sexual abuse. Journal of Child
Sexual Abuse 14(3), pp. 107–129.
39 Crimes Act 1961 s59.
40 R v Terry [1955] VLR 114.
41 Crimes Act 1900 s61AA(2).
42 Hobbs, C (2007) Child sexual abuse: the problem. In: Meadow, R, Mok, J and
Rosenberg, D (eds), ABC of Child Protection, 4th edn. Massachusetts: Blackwell,
pp. 43–44.
222
43 Hobbs, C (2007) Child sexual abuse: the problem. In: Meadow, R, Mok, J and
Rosenberg, D (eds), ABC of Child Protection, 4th edn. Massachusetts: Blackwell,
p. 47.
44 Kay, J (2003) A Practical Guide: Protecting Children, 2nd edn. London:
Continuum, pp. 60–63.
45 Barker, J and Hodes, D (2007) The Child in Mind: A Child Protection Handbook,
3rd edn. London: Routledge, p. 50.
46 Brassard, MR and Donovan, KL (2006) Defining psychological maltreatment. In:
Feerick, MM et al. (eds), Child Abuse and Neglect: Definitions, Classifications, and
a Framework for Research. Baltimore: Paul H Brookes, p. 151.
3rd edn. London: Routledge, pp. 51–53.
48 Glaser, D (2007) Emotional abuse. In: Meadow, R, Mok, J and Rosenberg, D (eds)
ABC of Child Protection, 4th edn. Massachusetts: Blackwell, p. 64.
49 Rosenburg, D (2007) Non-organic failure to thrive. In: Meadow, R, Mok, J and
Rosenberg, D (eds) ABC of Child Protection, 4th edn. Massachusetts: Blackwell,
pp. 56–59.
50 Rosenburg, D and Cantwell, H (2007) Neglect. In: Meadow, R, Mok, J and Rosenberg,
D (eds), ABC of Child Protection, 4th edn. Massachusetts: Blackwell, p. 63.
3rd edn. London: Routledge, pp. 31–32.
52 Olmstead, RW et al. (1982) Doctor shopping with the child as proxy patient: a
variant of child abuse. The Journal of Pediatrics 101(2), pp. 297–301.
53 Meadow, R (2007) Fabricated or induced illness (Munchausen syndrome by proxy).
In: Meadow, R, Mok, J and Rosenberg, D (eds), ABC of Child Protection, 4th edn.
Massachusetts: Blackwell, pp. 67–70.
54 Korbin, JE (2007) Issues of culture. In: Wilson, K and James, A (eds), The Child
Protection Handbook, 3rd edn. Edinburgh: Baillière Tindall, p. 134.
55 Van Bueren, G (1998) Children’ rights: balancing traditional values and cultural
plurality. In: Douglas, G and Sebba, L (eds), Children’s Rights and Traditional
Values. Aldershot: Ashgate, pp. 15–30.
56 Unknown author. Laws of the world on female genital mutilation. Online. Available:
http://cyber.law.harvard.edu/population/fgm/fgm.htm (accessed 25 May 2012).
57 Mason, C (2001) Exorcising excision: medico–legal issues arising from male and
female genital surgery in Australia. Journal of Law and Medicine 9, pp. 58–67.
58 Gruenbaum, E (2001) The Female Circumcision Controversy: An Anthropological
Perspective. Philadelphia: Penn, pp. 3–4.
59 US Department of Health and Human Services. At what age do young women
undergo [female genital cutting] FGC? Online. Available: http://www.womenshealth.
gov/publications/our-publications/fact-sheet/female-genital-cutting.cfm#c (accessed
25 May 2012).
60 Webb, E and Hartley, B (1994) Female genital mutilation: a dilemma in child
protection. Archives of Disease in Childhood 70, pp. 441–444.
61 Walley, CJ (1997) Searching for ‘voices’: feminism, anthropology and the global
debate over female genital operations. Cultural Anthropology 12(3), pp. 405–438.
62 Department of Immigration and Citizenship (2011) Asylum Statistics Australia
2010–2011 (first six months). Commonwealth of Australia.
223
63 Gilbert, E (ed) (1997) Female genital mutilation; information for health

professionals. The Royal Australian College of Obstetricians and Gynaecologists.
Online. Available: http://www.ranzcog.edu.au/publications/document-library/doc_
download/481-female-genital-mutilation-fgm-booklet.htm (accessed 25 May 2012).
64 Herieka, E and Dhar, J (2003) Female genital mutilation in the Sudan: survey of the
attitude of Khartoum university students towards this practice. Sexually Transmitted
Infection 79, pp. 220–223.
65 SIDS and Kids. Safe sleeping. Online. Available: http://www.sidsandkids.org/
safe-sleeping/ (accessed 25 May 2012).
66 Korbin, JE (2007) Issues of culture. In: Wilson, K and James, A (eds), The Child
Protection Handbook, 3rd edn. Edinburgh: Baillière Tindall, pp. 137–139.
67 Laming, L (2003) The Victoria Climbié Inquiry. Cm 5730. HMSO: 198 at
paragraph 6.565.
68 Trivers, R (1985) Social Evolution. Menlo Park: Benjamin Cummings, p. 420.
69 Diduck, A and Kaganas, F (1999) Family Law, Gender and the State: Text, Cases
and Materials. Portland: Hart Publishing Oxford, p. 302.
70 Brown, T and Alexander, R (2007) Child Abuse and Family Law. Crows Nest: Allen
& Unwin, pp. 83–84.
71 Poblete, X (2003) Overview of child abuse and neglect. In: Bannon, MJ and Carter,
YH (eds), Protecting Children from Abuse and Neglect in Primary Care. Oxford:
Oxford University Press, p. 5.
72 Brandon, M et al. (1999) Safeguarding Children with the Children Act 1989.
London: The Stationery Office, p. 63. Quoted in: Fortin, J (2003) Children’s Rights
and the Developing Law, 2nd edn. London: LexisNexis Butterworths, p. 458.
73 Fraser, JA et al. (2010) Factors influencing child abuse and neglect recognition and
reporting by nurses: a multivariate analysis. International Journal of Nursing Studies
47, pp. 146–153.
74 Melton, GB (2005) Mandated reporting: a policy without reason. Child Abuse and
Neglect 29, pp. 9–18.
75 Cobley, C (1995) Child Abuse and the Law. London: Cavendish Publishing, p. 38.
76 Stretch, R (2003) The duty to report child abuse in France, lessons for England?
Child and Family Law Quarterly 15(2), pp. 151–152.
77 David, TJ (2004) Avoidable pitfalls when writing medical reports for court
proceedings in cases of suspected child abuse. Archives of Disease in Childhood 89,
pp. 799–804.
78 Skellern, C and Donald, T (2011) Suspicious childhood injury: formulation
of forensic opinion. Journal of Paediatrics and Child Health. doi:
10.1111/j.1440-1754.2010.01773.x.
79 Gillingham, P (2006) Risk assessment in child protection: problem rather than
solution. Australian Social Work 59(1), pp. 86–98.
80 Sullivan v Moody (2001) 207 CLR 562.
224
Chapter 10
The mental health patient in the
pre-hospital emergency care setting
Ramon Shaban, Claire Wyatt-Smith, Joy Cumming
Learning objectives
After reading this chapter, you will be able to:
• Define mental illness
• Describe the contemporary ethical and legal challenges with respect to mental
illness
• Distinguish mental health emergencies from mental illness
• Understand the factors associated with mental illness
Definitions
Mental health emergency A circumstance in which an individual’s mental illness
presents an immediate danger to the individual or others, often characterised by
delusions, hallucinations and/or serious disorders of thought, mood or perception.
Mental illness A clinically significant disturbance of thought, mood, perception or
memory.
Yelling and screaming and cursing
At 1900 h, Ambulance Communications dispatches a paramedic crew lights-and-
siren to a disturbance at a house in the suburbs. The caller is a 40-year-old
woman, who lives next door to a house where new tenants, a mother and
daughter, have moved in. The caller reports hearing the daughter yelling and
screaming and cursing and stating that she ‘wished the old bat would do us all a
favour and make it final’. The caller reports overhearing someone inside the house
mention ‘taking sleeping pills’. On arrival, the crew finds a 64-year-old woman and
her 40-year-old daughter. The mother is conscious, trembling, crying, appears
225
Yelling and screaming and cursing continued...
frightened and is confused about time, person and place. The daughter is
aggressive, pensive and demands that she be taken away to be ‘locked up in the
nut house’. She says she has always been a nervous wreck and is ‘a burden’.
This chapter will provide you with the means to examine and determine important
legal and ethical aspects of cases such as this one in the context of paramedic
practice within Australia and New Zealand.
Introduction
This chapter explores the ethical and legal elements of contemporary paramedic
practice with respect to mental illness in the pre-hospital emergency care setting.
Based on recent research by Shaban,1 the chapter builds on earlier sections and pres-
ents an analysis of the salient, contemporary ethical and legal challenges in paramedic
practice with respect to pre-hospital emergency care of patients with mental illness
in Australia and New Zealand through the prism of the Queensland jurisdiction.
What is mental illness?

Mental illness is a well-recognised global health problem.2 Defined as a clinically
significant disturbance of thought, mood, perception or memory,3 mental illness is
a significant cause of morbidity and co-morbidity, and has a profound influence on
the social determinants of the health of individuals and communities globally. More
than 450 million people worldwide experience mental, neurological or behavioural
problems at any time.2 Mental illness and behavioural disorders constitute 12% of
the global burden of disease, a burden that far exceeds that of other diseases such
as cancer, heart disease, acquired immune deficiency syndrome (AIDS), tuberculosis
and malaria combined.2,4 Approximately 873,000 people die by suicide every year
around the world. In Australia, mental illness is a national health priority.5 Providing
appropriate mental health services is at the forefront of the needs of Australians.5,6
Almost one in five Australians (18%) suffer from a mental illness, and 3% of the
total population live with a serious psychiatric disorder at any one point in time.7–10
Nationally, they carry a greater burden of disability and illness than any other health
problem.11 Mental illnesses account for some 26.7% of the defined disability burden
in Queensland. In 2008, one in eight Queenslanders reported long-term mental
health problems, and one in seven reported high or very high levels of psychological
distress.12 The significance of this situation is multifaceted.13 People with mental
illness are systematically subjected to social isolation, have a poor quality of life
and have increased mortality, all of which have staggering economic and social
consequences.2 Many cases of mental illness go unreported or unmanaged, or are
concealed for a variety of social, political and economic reasons.
In Western countries, mental illnesses are diagnosed according to a classification
system outlined in the Diagnostic and Statistical Manual of Mental Disorders, Fourth
226
10 The mental health patient in the pre-hospital emergency care setting
Edition Text Revision (DSM-IV-TR),14 and the International Classification of Diseases,

Tenth Revision, (ICD-10).15 The DSM-IV-TR provides a classification system for all
mental health disorders in both children and adults, in which the assessment of the
mental illness occurs across five different axes. It provides key diagnostic criteria and
other information such as epidemiological data, guidelines for management and key
research findings.9 Mental illness presents in many different forms and types, as
listed in Table 10.1.
Table 10.1 General classifications of mental illness

Disorders Usually First Diagnosed in Infancy, Childhood or Adolescence
Delirium, Dementia and Amnestic and Other Cognitive Disorders
Mental Disorders Due to a General Medical Condition
Substance-related Disorders
Schizophrenia and Other Psychotic Disorders
Mood Disorders
Anxiety Disorders
Somatoform Disorders
Factitious Disorders
Dissociative Disorders
Sexual and Gender Identity Disorders
Eating Disorders
Sleep Disorders
Impulse-control Disorders Not Elsewhere Classified
Adjustment Disorders
Personality Disorder
Mental illnesses may be acute or chronic, mild or significantly debilitating.9 They

may also coexist so that individuals experience more than one particular mental
illness or they experience co-morbid medical conditions that are a result of, or
exacerbate, their mental illness. The diagnosis of mental illness has been a highly
controversial practice for thousands of years. Historically, mental illness was associ-
ated with evil, criminality and failures of religious faith and spirituality. Within
many cultures around the world, mental illness has been and is considered a con-
sequential form of divine retribution for an individual’s behaviour that was consid-
ered to be socially unacceptable at the time. Regulatory frameworks governing the
management of those with mental illness were typically pejorative in their language
and operation. Individuals were imprisoned in ‘lunatic asylums’ for ‘mental hygiene’.
In some countries and cultures, there have been extensive revisions in what consti-
tutes mental illness within psychiatry and other behavioural sciences. These revisions
have been accompanied by reforms in policy, practice and law. Within Western
countries, recent reforms have been influenced by human rights for people with
mental illness. The legislative response in some countries has reinforced the protec-
tion of individuals, attempted to shift public perceptions about mental illness and
emphasised governmental responsibility for vulnerable people.16 For example, gov-
ernments rewrote legislation and policy relating to people experiencing mental
illness that reflected international conventions established by the United Nations,
227
such as the United Nations Principles for the Protection of People with Mental Illness
and for the Improvement of Mental Health Care.16 At the centre of these reforms was
the protection of vulnerable individuals. Despite this progress, many governments,
medical authorities and cultures continue to deem various social behaviours to be
mental illnesses. In some countries, people with mental illness are incarcerated with
little or no treatment or intervention, violating their basic human rights.
As noted earlier in the chapter, mental illness is a very broad term that incorpo-
rates a wide variety of conditions and disorders that vary in nature and severity. In
the contemporary setting, what constitutes mental illness within an individual
depends on many factors that are contextual.1 A small percentage (3%) of the
total population lives with a serious psychiatric disorder at any one point in
time.7–10 Serious psychiatric disorders, such as schizophrenia, are characterised gen-
erally as a disturbance of thought, mood, perception or memory where the indi-
vidual demonstrates a loss of connection with reality. Consider the vignettes provided
in Case 10.1.
Case 10.1
Saint Christopher
It is 0200 h and a paramedic crew is dispatched to a patient reported to be
experiencing abdominal pain. On arrival, a calm, elderly woman meets the crew at
the front door of the house. She is immaculately groomed, sporting a summer hat
and sunglasses. She has two suitcases with her. She states that she has
abdominal pain because she is pregnant to Saint Christopher and will be having
contractions next month so she needs to go to hospital now to be prepared.
The assessment of whether the person in Case 10.1 has a mental illness is made
by a suitably qualified and registered health professional during a mental status
examination.17,18 The general definition of mental illness (a condition characterised
by a clinically significant disturbance of thought, mood, perception or memory3)
follows internationally accepted standards, such as those set out in the Diagnostic
and Statistical Manual of Mental Disorders IV.19 These and other standards are
enshrined in legislation, policy and procedures in mental health settings around the
world, and give rise to working definitions of mental illness. Typically, legislation,
policy and guidelines in the prevailing jurisdictions or context establish how
individuals with mental illness may access and receive care, as explored next.
Contemporary principles and frameworks for mental health care

In Australia and New Zealand, mental health services are provided within multi-
disciplinary, cross-jurisdictional arrangements. Under the Australian Constitution,
states and territories are principally responsible for the delivery of health services to
their citizens.20 Although the Australian federal government has no specific consti-
tutional responsibility for health under s51 of the constitution, it does have reserved
power for responsibilities not stated in the Australian Constitution of 1901 via a
228
doctrine of implied powers. States and territories may agree to refer constitutional
authority to the Commonwealth for matters that are the constitutional responsibil-
ity of the states and territories, such as the regulation of health professionals. There-
fore, in some areas such as health there is an overlap of federal and state/territory
responsibility and authority. As New Zealand is a single entity, the New Zealand
Parliament has the power to make laws on all matters under the Constitution Act
1986 (New Zealand) (s15).
Mental health is one area, however, where the responsibilities and authorities of
the Commonwealth and each of the states and territories are sharply demarcated.
In each Australian state and territory, Acts of parliament govern and regulate the
care provided to those experiencing mental illness. The relevant Acts across Australia
and New Zealand are summarised in Appendix 10.1.
Mental health Acts in Australia are drafted to comply with the National Standards
for Mental Health Services,21 the United Nations Principles for the Protection of People
with Mental Illness and for the Improvement of Mental Health Care16 and a model for
mental health legislation agreed to by all Australian and New Zealand jurisdictions.
Similar to mental health legislation in other Commonwealth countries – such as
the United Kingdom – the Acts described in Appendix 10.1 are intended to reflect
contemporary national and international trends in mental health care and broad
community expectations. The mental health Acts of Australia and New Zealand,
such as the Mental Health Act 2000 (Qld), provide for the involuntary assessment
and treatment, and the protection, of persons (whether adults or minors) who have
mental illnesses while at the same time safeguarding their rights.3 These Acts apply
only to the involuntary assessment, treatment and protection of persons experienc-
ing a mental illness while at the same time safeguarding their rights.1,9 Importantly,
people may opt to seek assessment and treatment voluntarily.3 The voluntary admis-
sion of individuals for mental health care is not regulated formally by Acts of parlia-
ment, but is covered by legislation relating to the function of health organisations
and by common law. However, if a voluntary patient withdraws consent, the person
may be admitted involuntarily if they meet the legislative criteria. An important
aim of the Acts is to reduce the stigma associated with mental illness and to protect
the rights of patients. Paramedics and other health professionals must be mindful
of the prevailing legislative frameworks for the jurisdiction(s) they work in, particu-
larly if they work across jurisdictions.
The nature and challenges of mental illness in paramedic work

Paramedics in the pre-hospital emergency care setting encounter patients experienc-
ing the broad spectrum of mental illness.1,22 They and other emergency service
workers are also called upon to respond to and manage mental health emergencies
in which an individual’s mental illness presents an immediate danger to the indi-
vidual or others, often characterised by delusions, hallucinations and/or serious
disorders of thought, mood or perception. The popular image that represents ambu-
lance paramedics in the media, particularly more recently in television, is one of
heroism23, routinely responding to life-and-death situations seemingly with ease.1,23
However, recent research suggests that the majority of the patients paramedics
encounter are not experiencing mental health emergencies.1 Rather, the vast
229
majority of paramedic work with respect to mental illness relates to patients who
experience non-life-threatening conditions or disorders that are chronic and debili-
tating, typically anxiety and depression. Notwithstanding, paramedics have specific
obligations, skills and expertise when it comes to managing individuals with mental
illness and mental health emergencies.1,6,8–10,24–30
Ethical and practical challenges of emergency mental health care

The growing prevalence of mental illness, and its management increasingly in the
community, has contributed to a range of ethical and practical challenges for
paramedics.
The ethical challenges associated with providing quality mental health care are
related in part to historical policies and the consequences of reforms in mental
health care. These policies and systems, and the problems associated therein, are
well documented.2,7,10,26,31–34 In Australia, the launch of the National Mental Health
Policy by the Australian Health Minister in 1992 provided the stimulus for signifi-
cant changes to psychiatric services within the Australian health care system.35–37
Decriminalisation of mental illness and mainstreaming of services, whereby mental
health care services shifted from specialist institutions to generalist health services
in community settings, were the central features of these reforms. The policy of
decentralisation of mental health services was central to the reform of mental health
care in Australia and New Zealand in the 1990s. It was hoped that these reforms
would address the longstanding problems associated with traditional psychiatric care
service delivery.38
However, the outcomes of these reforms attracted criticism and have been the
subject of scrutiny within the contemporary agenda for quality and safety of mental
health care.10,34,39 In Australia, multiple commissions of inquiry have investigated
government and non-government institutions and identified serious and systematic
failures of mental health care systems. These include the Commission of Inquiry into
the Care and Treatment of Patients in the Psychiatric Unit of the Townsville General
Hospital,40 the National Inquiry into the Human Rights of People with Mental Illness
[Burdekin Report]41 and the Report of an Inquiry conducted by The Honourable D G
Steward into Allegations of Official Misconduct at the Basil Stafford Centre [Stewart
Report].42 Inquires conducted in New Zealand, namely the Royal Commission on
Hospital and Related Services (1972–3) and the Ministerial Inquiry in respect of
Certain Mental Health Services (1995–6), arrived at similar findings.43 The Palmer
Report31 uncovered systematic failures of Queensland and Commonwealth govern-
ment departments when an Australian citizen, Ms Cornelia Rau, was unlawfully
detained and imprisoned without adequate medical help or treatment for 10 months
while experiencing acute schizophrenia. All inquiries document systemic neglect,
abuse and failure to provide safe and quality mental health care.
The reports Not for Service: Experiences of Injustice and Despair in Mental Health
Care in Australia10 and Out of Hospital, Out of Mind!: A Report Detailing Mental
Health Services in Australia in 2002 and Community Priorities for National Health
Policy 2003–20087 table systematic failures in mental health service provision. In
discussing the implementation of mental health reform in the context of commu-
nity mental health service delivery, Hickie7 asserts reports such as these reflect
230
disorganised and dislocated health and welfare systems and a lack of commitment
to the provision of quality mental health care, particularly in the public sector.
Moreover, Hickie7 argues that, when any of us seeks mental health care, we run the
serious risk that our basic needs will be ignored, trivialised or neglected. Statements
such as these, and others reported in the findings of the before-mentioned commis-
sions of inquiry, document the poor quality of mental health care provided across
Australia and New Zealand. The multidisciplinary, community-centred and cross-
jurisdictional yet fragmented nature of mental health services in Australia and New
Zealand gives rise to many ethical and practical challenges for health professionals.
Contributing to this has been the lack of recognition of the extent of the problem,
poor diagnostics and clinician judgement and decision making, inadequate health
professional education and training, poor institutional administration and account-
ability, and the failure of institutions at the local, state and national level to support
community-based systems of mental health care.10,43 Barriers to providing effective
mental health care and the treatment and management of mental illness are complex,
but include a fundamental lack of recognition of the seriousness of the problem
and both its chronic and global consequences.2
The decentralisation of mental health services that was central to the reform of
mental health care in Australia in the 1990s resulted in increased attendance by
patients with mental health problems at emergency departments and to emergency
medical services. The increase in presentations of general mental illness and mental
health emergencies is well documented in Australia29,36,44–53 and around the
world.37,54,55 This body of research provides considerable evidence that emergency
personnel currently encounter patients experiencing mental health problems more
frequently than before. The increasing contact emergency healthcare workers have
with mental health patients has had consequences for their professional practice.
Moreover, many studies of problem solving in mental health49,56–63 illustrate the
complexities and difficulties faced by health professionals, such as doctors, nurses
and social workers, and non-health professionals, such as police officers. Other
research35–37,63–65 has documented the lack of education and training in mental
illness across these health and non-health professions. However, paramedics do not
feature significantly in this literature, despite being expected to manage patients
with mental illness in the pre-hospital emergency care setting. Paramedic participa-
tion in the wider mental health care system has been asserted in the published lit-
erature.6,8–10,24–30 In some countries, such as India, paramedics are taking on new
mental health counselling roles in the pre-hospital emergency care setting.66,67 Such
interventions have yet to be realised in Australia, compounding the ethical and
practical challenges of paramedic practice with respect to mental illness.1
Paramedics and people with mental illness:

assessment and treatment
The role of paramedics and models for practice
The way in which paramedics manage individuals in the pre-hospital emergency
care setting is prescribed by key regulatory documents. Legislation enacting
231
ambulance services across Australia and New Zealand, described in Appendix 10.1
(‘Legislation that applies to paramedic practice’) in Chapter 5, emphasises the role
of paramedics in protecting individuals from danger and potential danger and
providing transportation. Ambulance-specific Acts establish ambulance services and
provide paramedics with broad and far-reaching powers to protect individuals from
real or potential harm or injury, which may include, but are not limited to, basic
and advanced life support procedures. In the contemporary setting, paramedics are
expected to be protectors and transporters, and the origins of these roles are steeped
in military traditions and the acts of Good Samaritans. From their earliest begin-
nings, as early as the religious crusades of the 11th century, paramedics have been
expected to protect individuals from harm. This practice continued for centuries
until, in the 1700s, it was adapted for use in formal military conflict. In a bid to
reduce the high rates of morbidity and mortality during battle, Napoleon’s Surgeon
General Baron Dominique Jean Larrey introduced stretcher-bearers into Napoleon’s
armies. Their role was to protect the injured soldiers by retrieving them from
the front line and transporting them on foot to makeshift field hospitals for defini-
tive medical care. Their key role was then protection by retrieval and transport, as
it is now.1 This emphasis on protection and transportation is illustrated by the
framing of paramedic practice and ambulance services, in that they are considered
an emergency service rather than a health service, largely due to professional
self-regulation.1
An important feature of the protocols and case management guidelines of ambu-
lance services is the expectation that paramedics’ clinical judgement and decision
making with regard to mental illness will direct the transportation of patients.
Paramedic practice in general is commonly guided by protocols and case manage-
ment guidelines.1 Bendall and Morrison68 report that all Australian ambulance
services operate using either protocols or clinical practice guidelines, or a combina-
tion of both. These guidelines typically consist of case entry script, providing infor-
mation regarding diagnostic patterns and guiding principles, and a decision tree or
algorithm, which is intended to guide paramedics in their practice in the field.
Generally speaking, decision trees are normative and prescriptive instruments for
clinical judgement and decision making.1 That is, they describe how the judgements
and decisions should be made, and they assist in this process. Decision trees work
by breaking down problems into smaller decisions and choices and include com-
prehensive risk analyses to identify all possible risks, which are assigned a relative
weight based on their probability of occurrence.69 The decisions alluded to within
the tree are based on the predictability of events using probability and statistical
occurrence. Once each choice has been assigned a probability – assuming this is
possible – the option with the highest utility for the decision maker can be calcu-
lated.69 Such models attempt to quantify the probability of the most likely and most
desirable event in an attempt to assist the individual or group in making that judge-
ment or decision by making it known.
When it comes to decision making, the literature states that paramedics adopt a
model referred to as a systematic approach, a model of problem solving incorporat-
ing assessment and analysis of the data to arrive at a summary of the patient and
their problems.1,70 The model calls on paramedics to use a mix of knowledge, skill,
232
experience, attitudes and intuition when managing patients. The approach has a
singular aim – providing the ‘best possible outcome’. However, recent research1 has
revealed that, although paramedic clinical judgement and decision making with
respect to mental illness does follow a form of systematic approach, it is not a simple
technicist activity. Rather, it is a highly individualised, complex and sophisticated
component of paramedic practice. Research by Shaban1 has revealed that, conceptu-
ally, paramedic clinical judgement and decision making of mental illness is com-
prised of contextual, practice and mediating elements. Fundamental to judgement
practice is the contextual element, which was found to be an amalgam of organi-
sational and occupational factors associated with various historical, cultural, educa-
tional, political and regulatory dimensions of the Queensland pre-hospital emergency
care setting. The contextual element establishes the framework for the formal roles
of paramedics within a hierarchy of medical treatment. The practice element consists
of field actions for problem solving and a range of individual-specific factors. The
paramedics’ field actions consist of an individualised, enacted systematic approach
that articulates their expectations of protection and transport of the patient. Actions
include gathering and assessing data, describing the problem in objective detail,
assessing the nature and severity of the problem, making a provisional diagnosis
and implementing actions to achieve the best possible outcome. Coupled with field
actions are individual factors, namely knowledge, experience, interpersonal skills
and personal traits. These individual factors were found to augment the paramedics’
field actions for problem solving in differing measure according to the individual
jobs and patients they encountered. The mediating element is comprised of para-
medics’ interactions within the scene, with the patient and with individuals in
authority. These interactions influence the success of their clinical judgement and
decision making, in particular their interactions with the patient, doctors, relatives,
bystanders and other individuals in authority. The roles paramedics ascribed to those
individuals were integral to their actual judgement practice. Moreover, the study by
Shaban1 illustrated how paramedics’ responses to the many competing priorities and
demands influenced their clinical judgement and decision making and that it was
not wholly governed by the formal regulatory expectations of practice that had
otherwise contextualised their practice. In addition, there were individual factors
that impacted decision making: namely, their knowledge, experience, interpersonal
skills and personal traits. In the field, these individual factors augmented, in differ-
ing measure according to the specific jobs and patients they encountered, their field
actions for problem solving and their systematic approach.
One of the contemporary practical ethical challenges for paramedics relates to
the expectations of paramedics transporting a patient with mental illness to an
emergency department rather than to a dedicated mental health facility or other
health service for medical clearance.71 Consider Case 10.2.
The study by Shaban1 demonstrated that, although some of the individuals with
mental illness who the paramedics encountered were, in their view, psychiatric
emergencies, the vast majority seen by paramedics are not. In reality, these paramed-
ics encountered a different patient group: individuals experiencing non-emergency
mental illnesses, particularly anxiety and depression, which are far more prevalent
in the community. A renewed emphasis on paramedic judgement practice and
233
Case 10.2
Attending to Roger
A paramedic crew is called to attend to Roger, a patient well known to the
paramedics in his area. He has chronic paranoid schizophrenia. He calls the
station every three or four days reporting to be not well, and requests assistance.
His presenting complaints vary and have included chest pain, shortness of breath,
abdominal pain, headache, paralysis, trauma from stab wounds and injuries from
alleged assaults. He has a pleasant and generally friendly disposition with an
intense affect. Every time a paramedic crew transports Roger to the local
emergency department, which is at least weekly, he is discharged. He is often
admitted to inpatient psychiatric treatment, sometimes voluntarily and other times
involuntarily. The side effects of his medication bother him, so he is generally
noncompliant with his medication. He has a sister overseas who does not speak
to him and is not involved in his care.
management of people with mental illness not so severe as to be deemed an emer-

gency is required, so as to afford patients treatment options other than those offered
by overcrowded emergency departments. Shaban’s research found that the formal
expectations of paramedic practice, that is paramedic clinical protocols and policies,
are largely silent about non-emergency mental illnesses. Although such conditions
do not feature in the protocols or case management guidelines, in one study they
made up the majority of patients they saw who were mentally ill. This, coupled
with a lack of clinical guidelines to support them to assess and manage non-
emergency mental illness, creates a missed opportunity for maximising the visibility
of the otherwise well-documented prevalence of mental illness experienced by indi-
viduals who paramedics encounter in the community.
Protecting and transporting patients – orders for involuntary assessment

In many Australian jurisdictions, paramedics’ management of patients with mental
illness is guided by multiple legislative instruments. In the majority of jurisdictions,
there is ambulance-specific legislation that established the ambulance service. The
Queensland legislative and practice frameworks are described here as an illustration
of one Australian jurisdiction. It is essential that you consider your respective juris-
diction and its prevailing legislative frameworks. For example, the Ambulance Service
Act 1991 (Qld) places an expectation that paramedics will protect an individual
from danger and potential danger. According to this Act, an authorised officer (a
paramedic) may take any reasonable measure to protect patients by transporting
them to hospital where they can seek the advice of experts, namely doctors. Fur-
thermore, paramedics are expected to transport all patients without undue delay.
The decision tree prescribes that paramedics ‘transport without undue delay’.72
Regardless of the outcomes at each stage of the decision tree, the resulting action
234
is transportation. Thus, the way in which paramedics are expected to manage indi-
viduals with mental illness appears – at least in the official records – to be prede-
termined. The emphasis on transportation features systematically in the formal
expectations of paramedic clinical judgement and decision making. As described
earlier, the origins of ambulance services are steeped in the traditions of transporta-
tion. The Ambulance Service Act 1991 (Qld) makes explicit an expectation that
paramedics will protect patients from danger, whether real or threatened, and provide
transportation to patients.
As outlined earlier in this chapter, in addition to the ambulance-specific legisla-
tion there are mental health-specific Acts that paramedics must comply with,
namely those given in Appendix 10.1. The Australian and New Zealand Acts grant
powers to groups of authorised individuals in effect to compel individuals for assess-
ment and treatment involuntarily.
Generally speaking, there are two methods by which this occurs. First, a citizen
may submit a request that an individual undergo involuntary assessment by an
authorised mental health professional. If the authorised mental health professional,
who is a medical practitioner, nurse, psychologist, psychiatrist or social worker duly
authorised under the relevant Act, agrees with the request after an assessment of the
patient and situation, an emergency examination order takes effect. The individual
must be transported to an authorised mental health facility and assessed by a duly
authorised clinician within a fixed period of time, after which the order lapses.
Legislatively, the order remains in force for a period of time, such as 6 hours in
Queensland, or until such time as the individual is assessed and a determination of
their mental state is made.73 If the authorised mental health practitioner is satisfied
the person’s condition warrants involuntary assessment and treatment, an order for
detention for involuntary assessment and treatment may be made. If, however, on
further assessment the person’s condition does not warrant involuntary assessment
and treatment, the emergency examination order lapses and the individual is
released. In this scenario, the role of the paramedic is limited largely to liaison with
the authorised mental health practitioners to effect the transport of the patient.
The second method for the involuntary assessment and treatment of patients
occurs by way of emergency examination orders. In all Australian jurisdictions and
in New Zealand, authorised mental health professionals include medical practitio-
ners, registered nurses, psychologists, occupational therapists and social workers
engaged in a provision of health services. It is important to note that, in the
Australian context, paramedics are not classified as health professionals for the
purposes of mental health legislation. Notwithstanding, when paramedics attend a
patient who is mentally ill in the pre-hospital emergency care setting, the provisions
of both the relevant ambulance service Act and the mental health Act apply, as is
the case in Queensland. In the example of Queensland, where the patient requests
or agrees to transport to hospital the provisions for involuntary orders within the
Mental Health Act 2000 (Qld) do not apply. The paramedic practises within the
provisions of the Ambulance Service Act 1991 (Qld). If, however, a paramedic is
called to a patient he or she believes is experiencing a mental health emergency, and
the paramedic seeks to transport the patient to hospital in circumstances where
consent from the patient is not forthcoming, specific provisions of the Mental
235
Case 10.3
Home invasion
A paramedic crew responds to a house at 0100 h where a 50-year-old woman,
Geraldine, has reported chest pain following a home invasion. On arrival, the
police are on scene and have forced entry into the house by breaking a window.
All the other doors and windows are shut and locked. All the windows and doors
have locks with keys, and the keys are with the patient who is hiding in a built-in
wardrobe in her bedroom sobbing, rocking and clutching her keys. Her speech is
pressured and she claims that someone outside her house with a knife is trying to
attack her. She says she can’t breathe and has chest pain and is worried that she
will be stabbed by the intruder. Geraldine was recently involved in an armed
hold-up at her place of work and she has since developed severe anxiety and
post-traumatic stress disorder. She refuses to leave the house.
Health Act 2000 (Qld) apply, namely the preparation of an Emergency Examination
Order. Consider Case 10.3.
In Queensland, the Mental Health Act 2000 provides paramedics, police officers
and psychiatrists with emergency powers to compel the patient in Case 10.3 with
a mental health emergency to involuntary assessment and treatment. The paramedic
is able to make an emergency examination order for involuntary assessment of an
individual where the officer has a ‘reasonable belief ’3 the individual exhibits features
that meet two sets of criteria. These criteria are set out in section 33(1) of the Act
and must be met for the emergency examination order to be lawful:
Emergency examination orders by police officers and ambulance officers (33
Application of sdiv 1)
This subdivision applies if a police officer or an ambulance officer reasonably believes:
(a) person has a mental illness; and
(b) because of the person’s illness there is an imminent risk of significant physical
harm being sustained by the person or someone else; and
(c) proceeding under division 2 would cause dangerous delay and significantly
increase the risk of harm to the person or someone else; and
(d) the person should be taken to an authorised mental health service for exami-
nation to decide whether a request and recommendation for assessment
should be made for the person.3
In the event that one or more criteria are not fulfilled, an emergency examination
order cannot be met and this provision of the Act does not apply. In such circum-
stances, paramedics would manage the patient under provisions of the Ambulance
Service Act 1991 (Qld), and do so using the protective provisions outlined earlier.
If the paramedic reasonably believes that all criteria are met, they may make an
emergency examination order, which enables them to involuntarily detain and
transport an individual to an approved mental health facility for further assessment.
236
To do so, the Act requires paramedics to complete the approved form when trans-
porting the patient. Of significance is that the form requires paramedics and police
officers to record how the patient meets the assessment criteria specified by the Act
and the information they relied on to support a reasonable belief. The emergency
examination order74 requires paramedics to justify their belief about the patient’s
mental illness, as follows:
Explain in your own words why you believe:
• the person has a mental illness (include any behavioural, verbal and environ-
mental cues you may have observed);
• because of the person’s illness there is an imminent risk of significant physical
harm being sustained by the person or someone else;
• proceeding under a Justices’ examination order would cause dangerous delay
and significantly increases the risk of harm to the person or to someone else;
• the person should be taken to an authorised mental health service for examina-
tion to decide whether a request and recommendation for assessment should
be made for the person.74
If the paramedic reasonably believes that all criteria are met, they may make an
emergency examination order, which enables them to involuntarily detain and
transport an individual to an approved mental health facility for further assessment.
Therefore, it is critical for paramedics to have a thorough working knowledge of
the relevant mental health legislation within their jurisdictions: paramedics’ roles in
involuntary detention according to the law; and the publications issued within their
jurisdictions for practical guidance.
Practice tips
1 Although the vast majority of mental illnesses do not constitute a mental
health emergency, paramedics have obligations to care for all patients
who are mentally ill.
2 Understand the distinction between mental illness, intellectual/learning
disability and neurological conditions (e.g. cerebral palsy) that may
influence the person’s presentation and ability to comprehend and
respond to questions.
3 Critical to the paramedic’s assessment and treatment of patients with
mental illness is the ability to build a rapport with the patient,
acknowledging the patient’s concerns and problems and understanding
them and their cultural and contextual characteristics.
4 History taking is essential to the comprehensive mental health assessment
of the patient.
5 The person’s conduct and language may be a function of their mental
illness and beyond their control.
6 Know the relevant law and policies for paramedics in your jurisdiction.
Stay updated because the law frequently changes. Thoroughly research
your obligations within your professional organisation and employment
setting. Seek advice and confirm your understanding with other suitably
qualified individuals.
237
7 Objective, comprehensive and concise records are critical to facilitating

timely, quality and safe health care. They are also fundamental to
professional practice standards.
8 Managing mental illness in pre-hospital emergency care is often
challenging and stressful, and at times can be dangerous. Ensure you are
appropriately supported by allied professionals, including police, doctors
and other relevant personnel. Operational debriefing, peer support and
counselling services are critical to the ongoing health and wellbeing of
paramedics if they are to provide optimal mental health care services to
patients in the pre-hospital emergency care setting.
Conclusion
Emergency mental health has been, and will become, an increasingly important
component of community and primary health care in the pre-hospital context.52,67
In an environment where the demands for quality and safety in health care dominate
the health care reform agenda, the ways in which paramedics make and account for
clinical decisions take on crucial importance. The interdisciplinary integration of
hospital and community services such as ambulance services is vital to the provision
of quality continuity of care, as emphasised by the following comments by Chan
and Noone:
The safe and effective management of mental health emergencies is a very important
component of a comprehensive system of services to individuals with mental illness
and their families. Often, that is the point of entry to treatment, and frequently, it
is a time of distress and turmoil. Good quality care at this point prepares a path for
recovery and constitutes a critical opportunity to affect both immediate and long-
term benefits.24
Paramedics are often at the point of entry to the mental health care system
(though not always) and may no longer be considered peripheral health workers
when it comes to mental health. Although they experience particular challenges in
the care of people with mental illness, paramedics largely lack visibility and explicit
involvement in the broader mental health policy development. Interdisciplinary
integration of hospital and community services in areas such as ambulance services
takes on a new importance when considering the quality and safety of mental health
care. The National Action Plan on Mental Health 2006–20116 recommended
increased participation by a wide range of health, welfare and disability professionals
and organisations in the provision of services to people with mental illness. Further,
this plan calls for increased knowledge and understanding of mental health and
mental illnesses for all healthcare professionals, an awareness of the additional needs
of patients in community settings and increased community interest and involve-
ment in mental health issues. In Australia, until the Commonwealth Government
published the National Action Plan for Mental Health 2006–20116, paramedics had
no visibility within the wider mental health care system. Despite this publication,
and widespread international reform calling for greater interdisciplinary collabora-
tion, the contributions paramedics may make to the care of people with mental
238
illness in the wider continuum of health care remain unrealised. Increased oppor-
tunities for paramedic participation in mental health care6,8–10,24–28 are needed.
The lack of opportunities for paramedic participation within the wider mental
health system is due, in part, to the lack of professional regulation. In Australia in
2009, the Commonwealth Agreement of Governments moved to establish a national
system of professional regulation for nine health professionals. Paramedics are not
included in these reforms, although recent commentary suggests that the Australian
Health Ministers’ Conference (AHMC) in principle has given support for the
national registration of paramedics from as early as 2014.75 More recently, on
16 September 2010, the AHMC released the new National Mental Health Stan-
dards calling for better integration of government, the non-government sector,
public and private services and private office-based service in the delivery of mental
health services, which are now community-based.76 In the study by Shaban1, para-
medics expressed dissatisfaction with their lack of professional positioning and
formal recognition within the health system. The formal recognition of paramedics
as health professionals will lead to more better integrated community-based mental
health services.
Interconnected with efforts for professional regulation are standards of education,
training and professional development. As noted, the level and standard of education
of paramedics have moved dramatically from non-accredited, in-house vocational
training to accredited vocational training and tertiary programs such as graduate
diplomas and research higher degrees in just over 15 years. Future education and
training programs must take stock of the dynamic nature of paramedic practice and
prepare paramedics to assess and manage mental illness in the field. Critical to this
is the sufficiency of education and training programs and their integration with clini-
cal guidelines, policy and legislation for ensuring quality practice.1
At issue for paramedics’ future participation as professionals in mental health care
is sufficiency of the prevailing legal, regulatory and professional practice frameworks
for enabling high quality and safe mental health care in the pre-hospital emergency
care setting.
Review questions
1 In what circumstances could a mental illness be considered a mental health
emergency?
2 What is the role of the paramedic when assisting a person with a voluntary
admission or when involved in an involuntary admission, and what sections
of the relevant Acts apply?
3 What section of the Act in your jurisdiction defines the criteria for invol-
untary assessment and treatment?
4 What conditions are excluded as sole criteria for involuntary assessment and
treatment in your jurisdiction? Can paramedics transport mental health
patients directly to a mental health facility rather than an emergency depart-
ment for treatment? Refer to law, policy and practice in your jurisdiction.
239
Appendix 10.1
Relevant mental health legislation
Jurisdiction Relevant Act Aims and objectives
Australian Capital Mental Health • An Act to provide for the treatment, care,
Territory (Treatment and control, rehabilitation and protection of mentally
Care) Act 1994 dysfunctional or mentally ill persons, and for related
purposes.
• This Act has the following objectives:
(a) to provide treatment, care, rehabilitation and
protection for mentally dysfunctional or mentally
ill persons in a manner that is least restrictive of
their human rights;
(b) to provide for mentally dysfunctional or
mentally ill persons to receive treatment, care,
rehabilitation and protection voluntarily and, in
certain circumstances, involuntarily;
(c) to protect the dignity and self-respect of mentally
dysfunctional or mentally ill persons;
(d) to ensure that mentally dysfunctional or
mentally ill persons have the right to receive
treatment, care, rehabilitation and protection in
an environment that is the least restrictive and
intrusive, having regard to their needs and the
need to protect other persons from physical and
emotional harm;
(e) to facilitate access by mentally dysfunctional
or mentally ill persons to services and facilities
appropriate for the provision of treatment, care,
rehabilitation and protection.
240
Appendix 10.1
Relevant mental health legislation continued...
New South Wales Mental Health • An Act to make provision with respect to the care,
Act 2007 treatment and control of mentally ill and mentally
disordered persons and other matters relating to
mental health; and for other purposes.
• The objects of this Act are:
(a) to provide for the care, treatment and control
of persons who are mentally ill or mentally
disordered, and
(b) to facilitate the care, treatment and control of
those persons through community care facilities,
and
(c) to facilitate the provision of hospital care for
those persons on a voluntary basis where
appropriate and, in a limited number of situations,
on an involuntary basis, and
(d) while protecting the civil rights of those persons,
to give an opportunity for those persons to have
access to appropriate care, and
(e) to facilitate the involvement of those persons,
and persons caring for them, in decisions
involving appropriate care, treatment and control.
Tasmania Mental Health • Legislation for the care and treatment of persons with
Act 1996 mental illnesses and for safeguarding their rights.
• Provides for voluntary and involuntary hospital
admission; Initial, Continuing Care and Community
Treatment Orders; Authorisations for Temporary
Admission; the establishment and administration of
the Secure Mental Health Unit; the Mental Health
and Forensic Mental Health Tribunals, and Official
Visitors.
Queensland Mental Health • The Act contains provisions for initiating involuntary
Act 2000 assessment, authorising involuntary treatment,
independent review of involuntary treatment and
patient rights. It provides processes for admission
of mentally ill offenders from court or custody and
decisions about criminal responsibility where the
person has a mental illness or intellectual disability.
It also introduces notification orders and non-contact
provisions for persons such as family members
and victims of crime, as well as other provisions
addressing community safety.
241
Appendix 10.1
Victoria Mental Health • The objects of this Act are:
Act 1986 (a) to provide for the care, treatment and protection
of mentally ill people who do not or cannot
consent to that care, treatment or protection; and
(b) to facilitate the provision of treatment and care to
people with a mental disorder; and
(c) to protect the rights of people with a mental
disorder; and
(d) to establish a Mental Health Review Board; and
(e) to establish a Psychosurgery Review Board; and
(f) to provide for the appointment and functions of
community visitors; and
(g) to establish a Victorian Institute of Forensic
Mental Health; and
(h) to ensure that people with a mental disorder are
informed of and make use of the provisions of this
Act.
• It is the intention of Parliament that the provisions of
this Act are to be interpreted and that every function,
power, authority, discretion, jurisdiction and duty
conferred or imposed by this Act is to be exercised or
performed so that:
(a) people with a mental disorder are given the
best possible care and treatment appropriate
to their needs in the least possible restrictive
environment and least possible intrusive manner
consistent with the effective giving of that care
and treatment; and
(b) in providing for the care and treatment of people
with a mental disorder and the protection of
members of the public any restriction upon the
liberty of patients and other people with a mental
disorder and any interference with their rights,
privacy, dignity and self-respect are kept to the
minimum necessary in the circumstances.
242
Appendix 10.1
Western Australia Mental Health • An Act to provide for the care, treatment, and
Act 1996 protection of persons who have mental illnesses, and
for related purposes.
• The objects of this Act include:
(a) to ensure that persons having a mental illness
receive the best care and treatment with the
least restriction of their freedom and the least
interference with their rights and dignity;
(b) to ensure the proper protection of patients as
well as the public; and
(c) to minimize the adverse effects of mental illness
on family life.
South Australia Mental Health • An Act to make provision for the treatment, care and
Act 2009 rehabilitation of persons with serious mental illness
with the goal of bringing about their recovery as far
as is possible; to confer powers to make orders for
community treatment, or detention and treatment, of
such persons where required; to provide protections
of the freedom and legal rights of mentally ill
persons; to repeal the Mental Health Act 1993; and
for other purposes.
Northern Territory Mental Health • The objects of this Act are:
and Related (a) to provide for the care, treatment and protection
Services Act of people with mental illness while at the same
2009 time protecting their civil rights;
(b) to establish provisions for the care, treatment and
protection of people with mental illness that are
consistent with the United Nations’ Principles
for the Protection of Persons with Mental Illness
and the Improvement of Mental Health Care,
the Australian Health Ministers’ Mental Health
Statement of Rights and Responsibilities and the
National Mental Health Plan;
(c) to establish provisions for the review of the
voluntary and involuntary admission of people
into approved treatment facilities and the
treatment provided to people in approved
treatment facilities;
(d) to establish provisions for obtaining informed
consent and the authorisation of treatment;
243
Appendix 10.1
(e) to establish provisions for emergency detention
and treatment;
(f) to provide regulation of specific forms of
treatment;
(g) to establish provisions for the administration of
involuntary treatment in the community;
(h) to mainstream and integrate, as far as possible,
provision for the administration and review of
admission, hospitalisation and treatment of
prisoners;
(i) to establish the right of people receiving or
seeking psychiatric treatment or care to be given
oral and written explanations of their legal rights
and entitlements under this Act in a form and
language that they understand;
(j) to establish the Mental Health Review Tribunal to
conduct reviews relating to people subject to this
Act;
(k) to establish the right for people who are
subject to this Act, their relatives, friends and
representatives, and any other people with a
genuine interest in particular people who are
subject to this Act, to make a complaint;
(l) to provide for approved treatment facilities
and approved treatment agencies to establish
accessible internal complaints procedures;
(m) to affirm the right of people with mental illness
to complain to independent complaint bodies
established by or under other legislation;
(n) to provide for a principal community visitor,
community visitors and community visitor panels
with inquiry, complaints, investigation, visiting,
inspection, advocacy and reporting powers and
functions;
(o) to provide for the registration of mental health
orders made outside the Territory;
(p) to provide a procedure for approved treatment
facilities and approved treatment agencies to be
approved;
(q) to recognise the continuing appropriate care
provided by relatives and friends and other non-
professional care givers in the community, and
to ensure that therapeutic alliances involving
appropriate non-professionals are recognised.
244
Appendix 10.1
New Zealand Mental Health • The overall intent of the Act is described as follows:
(Compulsory (a) to define the circumstances in which compulsory
Assessment assessment and treatment may occur
and Treatment)
(b) to ensure that both vulnerable individuals and the
Act 1992
public are protected from harm
(c) to ensure that the rights of patients and proposed
patients are protected
(d) to ensure that assessment and treatment occur
in the least restrictive manner consistent with
safety
(e) to provide a legal framework consistent with
good clinical practice
(f) to promote accountability for actions taken under
the Act.
Endnotes
1 Shaban, RZ (2011) Paramedic clinical judgement and decision-making of mental
illness in the pre-hospital emergency care setting: a case study of accounts of practice.
Brisbane, Australia: Griffith University.
2 World Health Organization (2010) Fact Sheet 220 – Mental health: strengthening
our response. Geneva: Author.
3 Mental Health Act 2000 (Qld).
4 World Health Organization (2001) The World Health Report 2001: Mental Health
– New Understanding, New Hope. Geneva: Author.
5 Department of Health and Ageing (2011) Health Priorities: Australian Government
2011. Online. Available: http://www.health.gov.au/internet/main/publishing.nsf/
Content/Mental+Health+and+Wellbeing-1 (accessed 13 April 2011).
6 Council of Australian Governments (2006) National Action Plan on Mental Health
2006–2011. Canberra: Australian Government.
7 Groom, G, Hickie, H and Davenport, T (2003) ‘Out of hospital, out of mind!’: A
report detailing mental health services in Australia in 2002 and community priorities
for national mental health policy for 2003–2008. Canberra: Mental Health Council
of Australia.
8 Shaban, R (2009) Invited submission for review of the Western Australia mental
health policy and mental health services. Minister for Mental Health, Government of
Western Australia.
9 Shaban, R (2009) Paramedics and the mentally ill. In: Grbich, C and O’Meara, P
(eds), Paramedics in Australia: Contemporary Challenges of Practice. Frenchs Forest,
NSW: Pearson Education Australia, pp. 112–133.
10 Mental Health Council of Australia (2005) Not for Service: Experiences of Injustice
and Desperation in Mental Health Care in Australia. Canberra: Author.
245
11 Australian Institute for Health and Welfare (2010) Australia’s Health 2010 – In Brief.
Canberra: Author.
12 Queensland Health (2008) The Health of Queenslanders 2008: Report of the Chief
Health Officer, Queensland. Brisbane: Author.
13 World Health Organization (2001) Fact Sheet 218 – Mental health problems: the
underdefined and hidden burden. Geneva: Author.
14 American Psychiatric Association (2003) Diagnostic and Statistical Manual of Mental
Disorders. New York: American Psychiatric Association.
15 World Health Organization (1992) International Classification of Diseases, Tenth
Revision. Geneva: Author.
16 Office of the United Nations High Commissioner for Human Rights (1991)
Principles for the Protection of Persons with Mental Illness and the Improvement of
Mental Health Care. New York: United Nations General Assembly.
17 Dziedzic, L, Brady, WJ, Lindsay, R and Huff, S (1998) The use of the mini-mental
status examination in the ED evaluation of the elderly. American Journal of
Emergency Medicine 16(7), pp. 686–689.
18 Folstein, MF, Folstein, SE and McHugh, PR (1975) Mini-mental state: a practical
method for grading the cognitive state of patients for the clinician. Journal of
Psychiatric Research 12(3), pp. 189–198.
19 American Psychiatric Association (2000) Diagnostic and Statistical Manual of Mental
Disorders, 4th edn. New York: Author.
20 Forrester, K and Griffiths, D (2009) Essentials of Law for Health Professionals, 3rd
edn. Sydney: Elsevier.
21 Commonwealth Department of Health and Aged Care (1997) National Mental
Health Strategy: National Standards for Mental Health Service. Canberra: Australian
Government Publishing Service.
22 Shaban, RZ and Considine, J (2011) Pre-hospital triage, clinical reasoning and
communication. In: Curtis, K and Ramsden, C (eds), Emergency Care and Trauma.
Sydney: Elsevier.
23 Reynolds, L (2009) Contextualising paramedic culture. In: O’Meara, P and Gribch,
C (eds), Paramedics in Australia: Contemporary Challenges of Practice. French
Forest, NSW: Pearson Education Australia, pp. 28–43.
24 Chan, A and Noone, JA, eds (2006) Emergency Mental Health Educational Manual.
Vancouver, BC: Mental Health Evaluation and Community Consultation Unit,
University of British Columbia.
25 Shaban, R (2004) Mental health assessments in paramedic practice: a warrant for
research and inquiry into accounts of paramedic clinical judgment and decision-
making. Journal of Emergency Primary Health Care 2(3–4), pp. 1–8.
26 Commonwealth Department of Health and Aged Care (2000) The National Mental
Health Report 2000: Changes in Australia’s Mental Health Services under the First
National Mental Health Plan of the National Mental Health Strategy 1993–1998.
Canberra: Australian Government.
27 Roberts, L (2007) The implications of mental health call outs on paramedic practice.
Adelaide: Flinders University.
28 Roberts, L and Henderson, J (2009) Paramedic perceptions of their role, education,
training and working relationships when attending cases of mental illness. Journal of
246
29 Townsend, R and Luck, M (2009) Protective jurisdiction, patient autonomy and

paramedics: the challenges of applying the NSW Mental Health Act. Journal of
30 Shaban, R (2008) Mental illness in the emergency care setting: a global challenge
– emergency mental health: Where are we now? Australasian Emergency Nursing
Journal 11(2), pp. 67–69.
31 Palmer, MJ (2005) Inquiry into the circumstances of the immigration detention of
Cornelia Rau. Canberra: Australian Government.
32 Commonwealth Ombudsman (2006) Referred Immigration Cases: Mental Health
and Incapacity (Report No. 07–2006). Canberra: Commonwealth of Australia, p. 27.
33 Department of Parliamentary Services (2005) The Detention of Cornelia Rau: Legal
Issues. Canberra: Commonwealth of Australia.
34 Doessel, D, Scheurer, R, Chant, D and Whiteford, H (2005) Australia’s mental
health strategy and deinstitutionalisation: some empirical results. Australian and New
Zealand Journal of Psychiatry 39(11–12), pp. 989–994.
35 Wand, T and Happell, B (2001) The mental health nurse: contributing to improved
outcomes for patients in the emergency department. Accident and Emergency
Nursing 9(3), pp. 166–176.
36 Sharrock, J and Happell, B (2000) The role of the psychiatric consultation–liaison
nurse in the general hospital. Australian Journal of Advanced Nursing 18(1),
pp. 34–39.
37 Salkovkis, PM, Storer, D, Atha, C and Warwick, HMC (1990) Psychiatric morbidity
in an accident and emergency department: characteristics of patients at presentation
and one month follow-up. British Journal of Psychiatry 156, pp. 483–487.
38 Fontaine, KL and Fletcher, JS (1999) Mental Health Nursing. Sydney: Addison
Wesley.
39 Whiteford, HA and Buckingham, WJ (2005) Ten years of mental health service
reform in Australia: are we getting it right? Medical Journal of Australia 182(8),
pp. 396–400.
40 Carter, WJ (1991) Commission of inquiry into the care and treatment of patients in
the psychiatric unit of the Townsville General Hospital between 2nd March 1075
and 20th February 1988. Brisbane: Queensland Government.
41 Human Rights and Equal Opportunity Commission (1993) Burdekin Report:
Report of the National Inquiry into the Human Rights of People with Mental
Illness. Canberra: Author.
42 Criminal Justice Commission (1995) Report of an inquiry conducted by the
Honourable D G Steward into allegations of official misconduct at the Basil Stafford
Centre. Brisbane: Queensland Government.
43 Brunton, W (2005) The place of public inquiries in shaping New Zealand’s national
mental health policy 1858–1996. Australia and New Zealand Heath Policy10(2),
p. 24.
44 Kalucy, R, Thomas, L, Lia, B, Slattery, T and Norris, D (2004) Managing increased
demand for mental health services in a public hospital emergency department: a trial
of ‘Hospital-in-the-Home’ for mental health consumers. International Journal of
Mental Health Nursing 13(4), pp. 275–281.
45 Kalucy, R, Thomas, L and King, D (2005) Changing demand for mental health
services in the emergency department of a public hospital. Australian and New
Zealand Journal of Psychiatry 39(1–2), pp. 74–80.
247
46 Brunero, S, Fairbrother, G, Lee, S and Davis, M (2007) Clinical characteristics of

people with mental health problems who frequently attend an Australia emergency
department. Australian Health Review 31(3), pp. 462–470.
47 Fry, M and Brunero, S (2004) The characteristics and outcomes of mental health
patients presenting to an emergency department over a twelve month period.
Australian Emergency Nursing Journal 7(2), pp. 21–25.
48 Wooden, MD, Air, TM, Schroder, GD, Wieland, B and Goldney, RD (2009)
Frequent attenders with mental disorders at a general hospital emergency
department. Emergency Medicine Australasia 21(3), pp. 191–195.
49 Broadbent, M, Creaton, A, Moxham, L and Dwyer, T (2010) Review of triage
reform: the case for national consensus on a single triage scale for clients with a
mental illness in Australian emergency departments. Journal of Clinical Nursing
19(5–6), pp. 712–715.
50 Wand, T and White, K (2007) Examining models of mental health service delivery
in the emergency department. Australian and New Zealand Journal of Psychiatry
41(10), pp. 784–791.
51 Knott, J, Pleban, A, Taylor, D and Castle, D (2007) Management of mental health
patients attending Victorian emergency departments. Australian and New Zealand
Journal of Psychiatry 41(9), pp. 759–767.
52 Lowthian, J, Curtis, AJ, Cameron, P et al. (2010) Systematic review of trends in
emergency departments attendances: an Australian perspective. Emergency Medicine
Journal 28, pp. 373–377.
53 Dent, AW, Phillips, GA, Chenall, AJ and McGregor, LR (2003) The heaviest users of
an inner city emergency department are not general practice patients. Emergency
Medicine 15, pp. 322–329.
54 Saliou, V, Fichelle, A, McLoughlin, M, Thauvin, I and Lejoyeux, M (2005)
Psychiatric disorders among patients admitted to a French medical emergency
services. General Hospital Psychiatry 27(4), pp. 263–268.
55 Dent, A, Hunter, G and Webster, AP (2010) The impact of frequent attenders on a
UK emergency department. European Journal of Emergency Medicine 17(6),
pp. 332–336.
56 Schmidt, TA, Atcheson, R, Federiuk, C et al. (2001) Hospital follow-up of patient
categorized as not needing an ambulance using a set of emergency medical
technicians protocols. Prehospital Emergency Care 5(4), pp. 366–370.
57 Spooren, D, Buylaert, W, van Herringen, C and James, C (1998) Police involvement
in psychiatric emergency referrals to an urban general hospital. Pre-hospital
Immediate Care 2, pp. 10–13.
58 Spooren, D, Buylaert, W, Jannes, C, Henderick, H and van Heeringen, C (1996)
Patients with psychiatric emergencies transported by an ambulance in an urban
region. European Journal of Emergency Medicine 3, pp. 14–18.
59 Pajonk, FG, Bartels, HH, Biberthaler, P, Bregenzer, T and Moecke, H (2001)
Psychiatric emergencies in preclinical emergency service: incidence, treatment and
evaluation by emergency physicians and staff. Der Nervenarzt 72(9), pp. 685–692.
60 Doyle, TJ and Vissers, RJ (1999) An EMS approach to psychiatric emergencies.
EMS Magazine pp. 87–93.
61 Torrey, EF (1971) Emergency psychiatric ambulance services in the USSR. American
Journal of Psychiatry 128(2), pp. 153–157.
62 Nordberg, M (1999) Paramedics provide care to mentally ill. EMS Magazine p. 8.
248
63 Green, G (1999) Emergency psychiatric assessments: do outcomes match priorities?

International Journal of Health Quality Assurance 12(7), pp. 309–313.
64 Bell, G, Hindley, N, Rajiyah, G and Rosser, R (1990) Screening for psychiatric
morbidity in an accident and emergency department. Archives of Emergency
Medicine 7(3), pp. 155–162.
65 Anstee, BH (1972) Psychiatry in the casualty department. British Journal of
Psychiatry 120, pp. 625–629.
66 Naved, RT, Rimi, NA, Jahan, S and Lindmark, G (2009) Paramedic-conducted
mental health counselling for abused women in rural Bangladesh: an evaluation from
the perspective of participants. Journal of Health, Population and Nutrition 27(4),
pp. 477–491.
67 Saddichha, S and Vibha, P (2011) Behavioural emergencies in India: would
psychiatric emergency services help? Prehospital and Disaster Medicine 26(1),
pp. 65–70.
68 Bendall, J and Morrison, A (2009) Clinical judgement. In: O’Meara, P and Grbich,
C (eds), Paramedics in Australia: Contemporary Challenges of Practice. Frenchs
Forest, NSW: Pearson Education Australia pp. 96–111.
69 Thompson, C and Dowding, D (2002) Clinical Decision Making and Judgement in
Nursing. London: Churchill Livingstone.
70 Bledsoe, BE, Porter, RA and Cherry, RA (2006) Paramedic Care: Principles and
Practice, 2nd edn. Upper Saddle River, New Jersey: Prentice Hall.
71 Elder, R, Evans, K and Nizette, D (2008) Psychiatric and Mental Health Nursing,
2nd edn. Marrackville, Australia: Mosby Elsevier.
72 Queensland Ambulance Service (2010) Clinical Practice Manual, Version 2.1 ed.
Brisbane: Department of Emergency Services, Queensland Government, p. A13–1.
73 Queensland Health (2005) Mental Health Act 2000: Resource Guide. Brisbane:
Queensland Government.
74 Queensland Government (2009) Emergency Examination Order. Brisbane: Author.
75 Cotton A Blog (2010) Health Ministers ‘in principle’ support for paramedic
registration. Brisbane: Australian College of Ambulance Professionals. Online.
Available: http://www.acap.org.au/news-national/health-ministers-in-principle-
support-for-paramedic-registration/ (accessed 16 December 2010).
76 Council of Australian Governments (2010) Australian Health Ministers’ Advisory
Council Media release 16 September 2010 – Australian Health Ministers’
Advisory Council Communique – Revised National Mental Health Standards.
Canberra: Author. Online. Available: http://www.ahmac.gov.au/cms_documents/
2010-Sept%2016%20AHMC%20Communique%20-%20Revised%20National%20
Standards%20for%20Mental%20Health%20Services.doc (accessed 17 September
2010).
249
Chapter 11
Employment and industrial law in
paramedic practice
Stephen Bartlett
Learning objectives
• Know what an employment contract is and be able to distinguish an employee
from an independent contractor
• Possess an understanding of enterprise agreements and bargaining
• Know what workers compensation is
• Understand issues and processes relating to termination of an employment
contract
• Know what occupational health and safety is and how it relates to paramedic
practice
• Be aware of issues relating to discrimination, bullying and harassment in the
workplace
Definitions
Bullying and harassment Distinct from discrimination, 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.
Employee Someone who performs tasks under the control and direction of an
employer in return for remuneration.
Employment contract A legally binding agreement between an employer and
employee, who have come together freely for the purpose of exchange or to
provide a service.
Fair Work Act 2009 A federal instrument that legislates to provide for significant
changes on a number of levels, including National Employment Standards, unfair
dismissal and enterprise agreements.
Unlawful discrimination Less than favourable treatment of an individual based on
race, sex, disability, age, sexuality or religion.
Vicarious liability With respect to employment law, it is the liability imposed on the
employer (although not technically at fault) for unlawful actions (such as torts and
crimes) committed by an employee in the course of the employee’s work.
250
11 Employment and industrial law in paramedic practice
Working hours
Molly and Vikram are approaching the end of a very busy 12-hour shift. It is a
Friday night and their third shift in a row. Both Molly and Vikram are looking
forward to having a few days off. They began work at 0700 and it is now 1840.
They clear at hospital after having queued for 55 minutes before transferring
their patient from ambulance to hospital care due to delays at the emergency
department. They have to travel approximately 12 kilometres back to station
in heavy traffic. At 1853 they are dispatched to an emergency, a 67-year-old
male, query myocardial infarction, 2 kilometres away. They respond. Prior to
arriving at the scene they request for back-up as neither wishes to be late off
duty. The dispatcher apologises, says that they will try to find back-up but there
has been a major accident on an arterial road and all available crews are
attending the scene.
This chapter will provide you with some of the information you may need to make
decisions in cases such as this one. In particular it will help you answer questions
such as:
1 As Molly and Vikram are approaching the end of their shift, to attend will force
them into overtime; could they refuse to attend the job on the basis of the
refusal to do overtime outside of contracted hours?
2 Would their refusal be viewed as a breach of contract and therefore a
disciplinary issue? Why?
3 Does the need to attend this possibly gravely ill patient outweigh the demands
of the paramedics to finish on time?
Introduction
Employment law has an immense scope and it is not possible to cover the entire
remit of this area of law in this chapter. The aim here is to introduce select topics
within employment law that are considered to be of particular relevance to para-
medics. The chapter does not seek to address each jurisdiction’s particular
legislation on a matter but will introduce some sections of relevant statutes
that serve to illustrate pertinent points of information. Although the names of
Acts vary amongst jurisdictions, there is commonality and a similar piece of leg-
islation covering the area exemplified generally exists in a similar format to the
example given. A similar principle is applied with regard to case law. You are
encouraged to access case law and legislation in a particular jurisdiction should
you wish to pursue a topic in more depth. Endnotes have been provided to assist
with this.
251
What laws relating to the workplace apply to paramedics

in Australia and New Zealand?
Legislation relating to the workplace is very broad and covers a great deal of legal
territory. Appendix 11.1 provides an example of the legislation relating to employ-
ment in Australia and New Zealand.
Appendix 11.1 is not designed to be an exhaustive list. It aims to show the range
of legislation that covers the workplace, including discrimination, workplace
health and safety, equal opportunities, whistle blowing and the minimum wage.
The purposes of the legislation vary from enablement (facilitating the hiring of staff
when starting a new business venture) to safety, equal opportunity, protection of
interests (intellectual property) and resolving disagreements without recourse to
the courts.
What is an employment contract?

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. An employment
contract is, by extension, a legally binding contract between an employer and an
employee. The employee agrees to abide by the terms of the contract and carry out
duties directed by and under the control of the employer. These duties will be dis-
cussed throughout the chapter. Before discussing what an employment contract is,
it is important to provide a legal definition of the term employee as distinct from
other types of workers.
As stated, a contract recognises the relationship between two parties to an agree-
ment; both parties are then bound to the agreement. An offer of employment
requires acceptance, which formalises the working relationship between the employer
and the employee: the agreement. Within the contract are terms and conditions,
both explicit and implied, which both parties agree to.1 Both parties are free to
negotiate the terms and conditions of the employment. (It is a basic principle of
contract law that the parties to the agreement are free to agree to the terms and
conditions.) However, there is an obvious power imbalance in favour of the employer
and, as a result of such, an employee who is very much in a subordinate position
will often join with a union of other employees and have their employment agree-
ment negotiated as a collective. Price2 (2009) states the main elements of a contract
for employment are:
1 there must be a clear and definite offer of employment; the offer of employ-
ment must be accepted by the employee unconditionally; both the offer and
acceptance of employment must be communicated;
2 the terms of the agreement between parties need to be certain;
3 there has to be valuable consideration; each party has to, in some form, pur-
chase the promise of the other party;
4 the parties need to possess the requisite legal capacity to be bound by the
contract and there must be genuine consent to the contract; and
5 the contract must be for a legal purpose.
Should the terms of the contract need to be altered, this cannot be performed
unilaterally. The employee would need to agree to the alteration, otherwise it could
be considered that the terms of the contract had been breached. However, this does
252
not prevent an employer from adopting new policies or procedures as part of

its business.3 One of the terms of the contract may include a requirement to be
bound by the terms of an enterprise agreement. The enterprise agreement will
include details on personal leave, salary rates, dispute resolution and promotion
processes.
Express and implied terms

It is necessary to explain the terms express and implied. Express is something that is
conveyed in words: written or spoken. Implied refers to an agreement that has
not been conveyed in words alone but through conduct, or in the absence of
express provision it becomes necessary to apply an implied term for the contract to
function. This does not mean that an implied term has limitless powers.4 According
to the case of BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977)5 the
implied term:
1 must be reasonable and equitable;
2 must be necessary to give business efficacy to the contract, so that no term
will be implied if the contract is effective without it;
3 must be so obvious that ‘it goes without saying’;
4 must be capable of clear expression;
5 must not contradict any express term of the contract.6
There is generally no requirement for the employer to provide the employee with
work.7 In view of ambulance services in Australia, this is pertinent, particularly when
resources must cover significant landmass where towns are distant and often sparsely
populated. Paramedics who service sparsely populated areas where callouts may be
few and far between require their training to be maintained. Case law has pointed,
not only to the employee being owed a duty of skill8 and care, but to the employee
owing a duty of skill and care to the employer.9 With regard to this, paramedics in
remote areas will have an expectation that the employer will provide the necessities
to maintain their skills and professional development. Equally, employees will be
required to maintain their training by engaging in training programs deemed
appropriate.
Historically, ambulance services have been almost exclusively responsible for
training and qualifying their own staff. Under these conditions, as part of the
employment contract the employer is obliged to provide these services. In return,
the employee will receive a wage, a uniform and will be expected to demonstrate
competencies to an acceptable standard throughout their training. The employee
will be expected to arrive at work on time and in a position to undertake reasonable
requests made by the employer. The contract may not set out explicitly what the
requests are, but the contract will direct the employee to policies and procedures as
laid down by the employer.10
Who is an employee?
In Australia and New Zealand a paramedic operating within any of the state,
territory or publicly funded ambulance services is commonly, at law, an employee
and not an independent contractor. Compare this to the United Kingdom
253
(UK) where some trusts – as well as employing paramedics and emergency

medical technicians (EMT) – use independent ambulance providers to assist in
their day-to-day provision of services.11 Such workers will be employees of the
privately funded ambulance service but, as will be discussed with regard to vicari-
ous liability, are not considered employees of the contracting publicly funded
ambulance service.
The Australian Industrial Relations Commission (AIRC) held in the case of
Abdalla v Viewdaze Pty Ltd (2003)12, following on from the case of Stevens v Brodribb
Sawmilling Co Pty (1986)13, that there are a number of boxes that need be ticked
to determine whether a worker is employed or independently contracted. To be
considered an employee, the employer should have ‘a degree of control which the
[employer] can exercise over the employee’.14 The employee should be integrated
into the service.15 The meaning of integration into a workplace might include: staff
orientation; being required to read and follow policies and procedures; being given
greater responsibility by the employer than an independent contractor; the issue of
whether or not a uniform is worn as a requirement, thus identifying the employee
with the employer’s business16; the issue of whether or not the employee is limited
by the terms of the agreement to work only for the employer17; and the issue of
whether or not the provision of holidays and a deduction of income tax are made by
the employer for the employee.18
Vicarious liability
Whether a worker is an employee or an independent contractor will determine
vicarious liability.19 Vicarious liability compels the employer to accept liability for
the employee’s wrongful acts or omissions, as demonstrated in the English case of
Lister v Helsley Hall (2001).20 Unlike counterpart services in the UK, Australia and
New Zealand do not uniformly subcontract to other organisations in response to
emergency (000 or 111) calls. The link between the legal definitions of employee,
vicarious liability and contract law is fundamental to employment law. It governs
rights and responsibilities with respect to this area of law, which will be explained
further in the chapter.
What are an enterprise agreement and enterprise bargaining?

An enterprise agreement21 is a form of collective bargaining between parties leading
to agreement. This area of employment law will usually not affect the individual
paramedic as, in the case of union membership, a paramedic member’s union
will negotiate with the employer on behalf of the paramedic employee group. To
understand enterprise agreements and bargaining it is first necessary to explain the
doctrine of privity of contract to underscore why enterprise agreements and bargaining
are relevant.
Doctrine of privity of contract

The doctrine determines that only the parties to the contract are entitled to a lawful
remedy should the contract fail in some way. With that in mind, enterprise agree-
ments and bargaining make it possible for a union to negotiate on the employee’s
behalf without making the employment contract invalid. It is an agreement between
254
an employer and an employer-recognised union that represents the employees. The

Fair Work Act 2009 (Cth) (FWA) defines an enterprise as a business, activity, project
or undertaking22 and includes an ambulance service. Section 172(2) of the FWA sets
out the law with regard to single enterprise agreements. Section 172(3) of the Act
states the legislation with respect to multi-enterprise agreements.
Greenfield agreements
A Greenfield agreement is an employment agreement between a union and a new
employer (which does not yet have employees). Greenfield agreements are not rel-
evant to ambulance services by virtue of the fact that ambulance services are currently
publicly funded and, consequently, are already recognised as an employer. Only for
privately funded ambulance services, commencing business and in the process of
hiring staff, will a Greenfield agreement apply. However, should an ambulance
service engage in an altogether different activity or project, such as creating a new
type of paramedic role, this would be covered by a Greenfield agreement.
Sections 169–172 of the FWA deal specifically with enterprise agreements. This
part of the Act provides for bargaining arrangements to be made on behalf of the
employee. As previously stated, employees – with particular respect to ambulance
services –will not be able to negotiate individually for every component term and
condition of employment, whether expressly stated or implied. To do so would be
unwieldy for the employer and prevent the employer ambulance service from
meeting the demands of the service it seeks to provide. The bargaining representa-
tive (union), on behalf of member employees, will negotiate changes to the contract
of employment. Such terms may be, for example, related to changes in penalty rates
for different types of overtime or to reimbursement to employees who are required
to use their own transport when driving between different ambulance stations
(commonly referred to as mileage or travel expenditure).
Stewart (2011)23 identifies four reasons for registering an enterprise agreement
under the FWA. These are:
1 providing flexibility to ensure the employer meets the demands required
of it for the service it provides;
2 providing locked in times – staged intervals – for wage increases to be
delivered to the enterprises’ employees;
3 protecting the employer from industrial action for the period of the
agreement bargained for; and
4 cohesion and simplicity.
Division 2 of the FWA deals specifically with the interaction between ‘State and
Territory Laws’. Section 26(2)(b)(i)–(vi) of the FWA expressly excludes state and
territory legislation for the purpose of:
(i) regulating workplace relations (including industrial matters, industrial

activity, collective bargaining, industrial disputes and industrial action);
(ii) providing for the establishment or enforcement of terms and conditions of
employment;
255
(iii) providing for the making and enforcement of agreements (including

individual agreements and collective agreements), and other industrial
instruments or orders, determining terms and conditions of employment;
(iv) prohibiting conduct relating to a person’s membership or non-membership
of an industrial association;
(v) providing for rights and remedies connected with the termination of
employment;
(vi) providing for rights and remedies connected with conduct that adversely
affects an employee in his or her employment[.]
Thus, this removes the responsibility to legislate at state or territory level. However,
s27(1A)(a)–(h) of the FWA makes provision for each state and territory to continue
to be responsible for certain statutory instruments:
a) the Anti-Discrimination Act 1977 of New South Wales;
b) the Equal Opportunity Act 1995 of Victoria;
c) the Anti-Discrimination Act 1991 of Queensland;
d) the Equal Opportunity Act 1984 of Western Australia;
e) the Equal Opportunity Act 1984 of South Australia;
f ) the Anti-Discrimination Act 1998 of Tasmania;
g) the Discrimination Act 1991 of the Australian Capital Territory;
h) the Anti-Discrimination Act of the Northern Territory.
Section 27(2) defines other non-excluded matters (for full information refer to
the Act24), such as:
a) superannuation;
b) workers compensation;
c) occupational health and safety[.]
All enterprise agreements must be approved by Fair Work Australia (s54 FWA).
It is important to add that – according to s29(1) of the FWA – a modern award or
enterprise agreement ‘prevails over a law of a State or Territory’ where inconsistency
exists. (The reader wishing to know more about the management of inconsistencies
between the FWA and state and territory legislation should look to ss26–29 and
ss55–58 of the FWA.) The requirements are set out in s186 of the FWA. Fair Work
Australia is the body responsible with respect to, amongst other things, agreements,
bargaining and disputes. It is essentially a tribunal and an industry watchdog with
the aim of providing procedural fairness to the parties privy to enterprise agreements
and bargaining, and other industrial and workplace matters.
Part 2-2 of the FWA, which took effect on 1 January 2010, legislates for 10 areas
of employment that must be adhered to by employers as basic minimum conditions
that have been legislated for at a federal level, thus taking responsibility away from
state and territory statutory instruments for these stipulated areas of employment
law. It is unlawful for employers to contract out of these standards, and unions need
not negotiate on behalf of members of the union for these standards to be imple-
mented at a place of work. The standards set out in s61(2) are:
(a) maximum weekly hours

(b) requests for flexible working arrangements
256
(c) parental leave and related entitlements

(d) annual leave
(e) personal/carer’s leave and compassionate leave
(f ) community service leave
(g) long service leave
(h) public holidays
(i) notice of termination and redundancy pay
(j) Fair Work Information Statement[.]
Essentially, an enterprise agreement provides for terms supplementary to the
National Employment Standards set out above. It must be stated that minimum
standards are just that, minimum standards. Consequently there is nothing to
prevent an employee or representative of the employee negotiating for terms to the
contract to be significantly better than the minimum standards legislated for.
Hours of work
The maximum weekly hours are set out by the legislation. This section also allows
for additional hours. Section 62(3)(c) of the Act exempts an employer from adher-
ing to the 38-hour working week on the basis of the needs of the workplace or the
enterprise in which the employee is employed. Ambulance services are resource driven
and paramedics attend, insofar as possible, all incidents they are alerted to as quickly
as possible. Owing to periods of high demand, ambulance service employees will
therefore be required to attend incidents outside their contractual hours. It is a
prerequisite that they will actually have to have been at work for the overtime to
occur. It is not being stated that a paramedic is in breach of their contract should
they refuse to come in to work on a rostered day off. Similar to the crew described
in the ‘Working hours’ introductory case, a crew witnessing a road traffic collision
on return to station and within 5 minutes of the end of shift cannot drive by without
reasonable justification.25 The crew may incur overtime and the ambulance services,
depending on local agreement, will remunerate the employee appropriately for
working over and above the contracted hours for that particular shift.
We began this chapter briefly mentioning the notion of good faith in
contract law with particular respect to implied terms. Good faith forms the basis
of enterprise bargaining also.26 The good faith bargaining requirements set out in
s228(1) of the FWA are:
(a) attending, and participating in, meetings at reasonable times;

(b) disclosing relevant information (other than confidential or commercially sen-
sitive information) in a timely manner;
(c) responding to proposals made by other bargaining representatives for the
agreement in a timely manner;
(d) giving genuine consideration to the proposals of other bargaining representa-
tives for the agreement, and giving reasons for the bargaining representatives’
responses to those proposals;
(e) refraining from capricious or unfair conduct that undermines freedom of
association or collective bargaining;
(f ) recognising and bargaining with the other bargaining representatives for the
agreement.
257
Section 193 FWA provides a safety check for employees permitting objective
analysis by an independent body to the agreement. An enterprise agreement may,
in some circumstances, be deemed to have passed a better off overall test (BOOT).
This is applied when comparing an award against a modern award to measure
whether employees will be better off overall. This test replaces the no disadvantage
test. Applicable to this are public interest factors and, specific to ambulance services,
the fact that Fair Work Australia may class industrial action as unlawful and, there-
fore, terminate actions if they are deemed to endanger life.27
Enterprise agreements and bargaining are a complex area of employment law but,
as stated, a union can negotiate with the employer on behalf of its members as long
as the union has been recognised at law to fulfil that function.
What is workers compensation?

Compensation is 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. Compensation is commonly in the form of damages
(financial redress). The compensation awarded seeks to place the plaintiff in the
same financial position as they would have been in had the breach not occurred.
Compensation has its limits. It is self-evident that, if an employee loses a limb
through the course of a work-related incident, the employee cannot sue for
replacement of the amputated limb. However, the employee will likely be awarded
a sum to compensate them for loss of income due to the loss of the limb. The
sum awarded may be assessed taking into consideration the number of years of
work that the employee would have had but for the accident, and whether an
alternative source of employment could be offered by the employer. The refusal
to accept an alternative source of employment offered by the employer may be
viewed as a failure of the employee to contribute to their own rehabilitation and
mitigation of their loss. This will then affect the compensation awarded to the
employee. In the English case of Livingstone v Raywards Coal Company (1880)28,
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.29
Table 11.1 indicates the legislation that governs the area of workers
compensation.
Termination of contract and dismissal

There are a number of other reasons that could give rise to a claim for workers
compensation apart from a workplace injury. This includes termination of an
employment contract. For both parties to terminate the employment contract,
it must be done in accordance with the terms of the employment contract in
order to be lawful. The International Labour Organization is an agency of the
United Nations, of which Australia and New Zealand are both member states.
258
Table 11.1 Workers compensation legislation

Jurisdiction Legislation
Australia Capital Workers Compensation Act 1951
Territory
New South Wales Workers Compensation Act 1987
Workplace Injury Management and Workers Compensation Act 1998
Northern Territory Workers Rehabilitation and Compensation Act 1986
Queensland Workers’ Compensation and Rehabilitation Act 2003
South Australia Workers Rehabilitation and Compensation Act 1986
Tasmania Workers Rehabilitation and Compensation Act 1988
Victoria Accident Compensation Act 1985
Western Australia Workers’ Compensation and Injury Management Act 1981
New Zealand Accident Compensation Act 2001
Injury Prevention, Rehabilitation and Compensation Act 2001
Article 11, Termination of Employment Convention 1982 (ILO Convention:

C158) states:
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 mis-
conduct, that is, misconduct of such a nature that it would be unreasonable to require
the employer to continue his employment during the notice period.30
This Article sets out the minimum standards required when the employer seeks
to lawfully terminate the employee’s contract of employment and afford the employee
some opportunity to secure further employment arrangements. Should the employee
wish to terminate the contract, a period of notice is determined and worked by the
employee. Should the employer wish to terminate an employee’s contract, the
employer must follow the procedure contained in the employment contract.31
Because an employment contract can be terminated lawfully, the employee can also
be dismissed unlawfully (wrongfully), unfairly32 or constructively.
Unlawful dismissal is where an employee’s dismissal is against the law such as on
the grounds of discrimination; for example, based on sex, race, disability or sexual-
ity. Unfair dismissal is assessed by objective standards based on whether the dismissal
was harsh, unjust or unreasonable.33 An example of this is where an employee is
sacked for not meeting the demands set by the employer. The subsequent Industrial
Tribunal finds that the tasks set were unrealistic, and the employee could not be
reasonably expected to comply with the tasks set in the time allotted by the
employer. The employee’s dismissal was therefore harsh, unjust and unreasonable
and the dismissal therefore unfair.
Constructive dismissal is a claim made that follows resignation by the plaintiff
employee. The employer may be so unreasonable in their behaviour to the employee
as to make the relationship unworkable. An example of this is where an employee
is commonly phoned at all hours of the day and night by the employer demanding
259
information or work to be done. This would be an unreasonable practice save in

the most extreme and dire work-related emergencies. It could also be as the result
of workplace bullying or harassment. The employee resigns but subsequently
applies for compensation due to the unresolved behaviour of the employer, similar
to the principle set out with regard to unfair dismissal. If the plaintiff employee is
successful in their application they may not wish to accept monetary payment.
They may wish to be reinstated to their former position without penalty. They may
receive compensation for the time spent away from the employment as well. It
would also be legitimate, where possible, to have the employee reinstated if they
demanded.
Other examples of where an employee might seek redress through the legal system
are as a consequence of:
• an employer’s failure in its duty to take reasonable care not to subject
employees to unnecessary risk of harm
• unlawful discrimination and/or victimisation
• failure to pay wages that the employee has contracted and provided
consideration for
• procedural failure
• limiting or preventing from freedom of association at work or, conversely,
forcing an employee to join a union against their will
• negligent misstatement as part of a reference which results in loss, or34
• redundancy (though not strictly damages, it is an award for loss of an
employee’s job due to, for instance, company restructuring and a lawful
termination of the employment contract).
Concerning an employer’s failure in its duty of care, there are two cases that
indicate the complexity of this aspect of the law. The first is the case of Johnstone v
Bloomsbury Health Authority (1991).35 In the case of Johnstone a young house doctor
in the United Kingdom challenged the lawfulness of working, on average, 88 hours
per week. It was held that the employing health authority owed the plaintiff doctor
a duty not to be subjected to unnecessary risk of harm by requiring periods of on
call (44 hours each week) over and above the contracted working week of 40 hours.
In the case of Koehler v Cerebos (Australia) Limited (2005)36 a sales representative,
who had renegotiated her hours of work, found her workload made it impossible
for her to perform the work in the allotted time. She blamed the workload in the
hours set to be detrimental to her health. It was held that the injuries she reported
were not reasonably foreseeable and her claim failed.
To re-cap, compensation is a remedy designed to place the affected party in a
position equal to that which would have resulted from the contract being properly
performed. It comes down to the issue of good faith, that is: both parties to the
agreement will act accordingly to ensure the terms of the agreement are met.
What is occupational health and safety?

Paramedics work in difficult, often dangerous and sometimes uncontrolled environ-
ments. Workplace-related injuries can and do occur, despite the implementation of
260
effective safe working practices and policies. For example, in preparation for driving
under emergency conditions, the paramedic will have been trained to a standard
over and above that required of the ordinary road user. However, the risks are
obvious of going above statutory speed limits and treating red light junctions as
give way (a lawful exemption when driving under emergency conditions) when
dispatched under emergency conditions. Nevertheless, even the well-trained, com-
petent and prepared paramedic cannot always take into account the behaviour of
other drivers who are not employing the appropriate standards of due care and
attention required of them by law on the roads.
Scenes where bystanders are intoxicated can create other challenging and poten-
tially dangerous environments. The behaviour of people associated with similar
scenes can make it difficult for paramedics to treat injured parties effectively.37
Paramedics are trained and required to make a rapid risk assessment to ascertain
whether the scene of an incident is safe. However, it is important to understand
that, unlike most other health service environments, the safety of any given scene
is rapidly changeable depending on a variety of factors and hazards that may be
present or may develop at the scene.
Regardless of the difficulties associated with ambulance work, it is the employer’s
duty to provide a safe place of work, as is reasonably practicable, for its employees.
The International Labour Organization’s Occupational Safety and Health Conven-
tion 1981 (No. 155) was ratified by Australia in 2004 and New Zealand in 2007.
Article 4(2) of the convention states:
The aim of the policy shall be to prevent accidents and injury to health arising out
of, linked with or occurring in the course of work, by minimising, so far as is reason-
ably practicable, the causes of hazards inherent in the working environment.38
The convention is not dissimilar to principles stated in the notable case of Ham-
ilton v Nuroof (WA) Pty Ltd (1956)39, which identified the importance of addressing
risk exposure to the employee, and that is codified in state and territory occupational
health and safety legislation. Please refer to Appendix 11.1 for more information
on these Acts.
The uncontrollable environment that paramedics frequently work in requires
ambulance services to have procedures that identify changes in workplace health
and safety. To determine whether risks should be in the employer’s contemplation,
a number of factors must be in evidence: there must be a magnitude of risk40; risks
need to be reasonably foreseeable; and there must also be a degree of probability
that the risk could occur. An example is where a paramedic is transferring a patient
via a stretcher that is known to be faulty by both the employer and employee. The
likelihood of the paramedic being injured is reasonably foreseeable. The employer
has a duty of care to the employee but the employee likewise has a responsibility
to act to protect his own safety and that of others. If a risk is identified by either
the employer or employee, that person must take ‘reasonable care’ to limit the risks
of injury and that includes complying with ‘reasonable instructions’. The steps that
can be taken are those that are considered ‘reasonably practicable’. The term reason-
ably practicable is addressed in detail in section 18 of the Model Work Health and
Safety Bill41, but is essentially:
261
doing what is, or was at the time, reasonably able to be done, taking into account
and weighing up all relevant matters including:
(a) the likelihood of the hazard concerned occurring,
(b) the degree of harm that might result from the hazard, and
(c) what the person concerned knows, or ought reasonably to know about:
(i) the hazard or risk and
(ii) the ways of eliminating or minimising the risks and
(d) the availability and suitability of ways to eliminate or minimise the risk; and
(e) after assessing the risk and ways of eliminating or minimising the risk, the
cost associated and available ways of eliminating/minimising the risk, includ-
ing whether the cost is grossly disproportionate to the risk.
Section 9 of the Civil Liability Act 2003 (Qld) sets out an example of the stan-
dards legislated for to determine whether the provisions made by an organisation
could be considered reasonably practicable. Section 9(2) states:
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.
It is not possible to remove all risks relating to the workplace, particularly as
paramedics will be called upon to attend in differing environments to perform their
duties. Case 11.1 highlights some of these issues and the difficulties that persist with
differing opinions of what is considered reasonable and practicable.
This case is designed not to be read as a purely legal problem; it is important to
approach it from an ethical perspective also. Legally, it is first important to define
workplace. Although not yet enacted by parliament, the Model Work Health and
Safety Bill41 offers some guidance on what, at law, a workplace is:
8. Meaning of workplace
• A workplace is a place where work is carried out for a business or undertak-
ing and includes any place where a worker goes, or is likely to be, while
at work.
• In this section, place includes:
a) a vehicle, vessel, aircraft or other mobile structure; and
b) any waters and any installation on land, on the bed of any waters or
floating on any waters.
It is then important to consider tobacco legislation as it relates to the workplace

(cf. public place) in each jurisdiction. Compare the exemptions on smoking in resi-
dential properties with the above definition of workplace. Take, for example, s67B(b)
Public Health Act 1997 (Tas) which requires, by law, an enclosed workplace to be
smoke-free. Approach the questions below from the perspective: first, that the inci-
dent address is a residential dwelling and, second, that it is a workplace as defined
above, and compare the answers and outcomes.
262
Case 11.1
The workplace
Victor and Grace qualified 18 months ago from a university paramedic degree
program. Both take their job and their health very seriously. One Friday night they
are called to a 61-year-old male with lung cancer. The cancer has metastasised
into his bones and the patient is receiving palliative care. The patient is
complaining of nausea, diarrhoea and vomiting. The patient is in a poorly
ventilated private residence along with three adult members of his family. The
patient is not smoking – he has since given up – but the three other members in
the house all are inhaling on lit cigarettes. The room the patient is in is enclosed 42
(the room has four walls, one window [closed], a door into and out of the property
and another door that leads to a kitchen [also enclosed]; the interior of the
property has ceilings throughout) and full of cigarette smoke. The air is acrid and
the smell pungent. Both Victor and Grace begin to cough involuntarily on entering
the room. Neither Grace nor Victor has ever smoked in their lives and they
consider second-hand smoke offensive. Grace, politely, asks the three adult
smokers to put out their cigarettes while they treat the patient. The patient
intervenes on their behalf and states that it is his house and his rules, and they
should not extinguish their cigarettes while he is being treated by the crew. Grace
states that it might be the patient’s house but, while she is treating the patient, it
is also her workplace and it is illegal to smoke in the workplace. The trio continue
to puff away. Grace states that she will not treat the patient while the smoking
continues as she finds the smoke detrimental to her health. Grace leaves and
radios her communications department to inform them of the issue.
1 Is this acceptable behaviour on Grace’s part?

2 Is it reasonably practicable for the employer to enforce a no-smoking rule
when employees are expected to enter patients’ private residences?
3 If so, how could this policy be reasonably enforced?
4 Are there legitimate exceptions to smoking in the workplace when
someone works for any of the emergency services?
5 If it is unlawful and a breach of terms and conditions of employment to
smoke in an ambulance station and in an ambulance, how could the
patient argue that his claim of residence defeats the claim of the
paramedics’ workplace?
Case 11.1 and the questions above serve to exemplify the difficulties between the
legislation, rights and duties, and what actions an employee is expected to take to
ensure the workplace is as free from danger as reasonably practicable.
Not only do employers owe a duty to employees to have a safe working environ-
ment to operate in, employees must also take responsibility for the maintenance of
263
safe working practices and standards required by the employer. This is provided
through training in the effective use of safety equipment. Paramedics will need
to adhere to procedures set out by their employer with regard to wearing personal
protective equipment (PPE). It is the employer’s obligation to provide such
equipment but the duty to wear it is not necessarily discretionary.
The main sources of legislation in Australia and New Zealand relevant to
occupational health and safety are given in Table 11.2.
There are plans to introduce a new national system of work and safety in 2012.
This will mean that each state and territory will have a uniform set of laws regarding
occupational health and safety that will be supplemented by work health and safety
regulations and codes of practice.
In most instances statutes govern the liability and compensation sought for inju-
ries sustained in the workplace. The common law tortuous principles of negligence
Table 11.2 Occupational health and safety legislation

Commonwealth Model Work Health and Safety Bill Retrieved from http://
safeworkaustralia.gov.au/AboutSafeWorkAustralia/WhatWeDo/
Publications/Documents/598/Model_Work_Health_and_Safety_
Bill_23_June_2011.pdf. (not yet enacted by Parliament)
Safe Work Australia Act 2008
Safety, Rehabilitation and Compensation Act 1988
ACT Work Health and Safety Act 2011 (not yet effective)
Work Safety Act 2008
Workers’ Compensation Act 1988
New South Wales Occupational Health and Safety Act 2000
Workers’ Compensation Act 1987
Northern Territory Workplace Health and Safety Act 2007
Workers’ Rehabilitation and Compensation Act 1986
Queensland Workplace Health and Safety Act 1995
Workers’ Compensation and Rehabilitation Act 2003
South Australia Occupational Health, Safety and Welfare Act 1986
Tasmania Workplace Health and Safety Act 1995
Victoria Occupational Health and Safety Act 2004
Accident Compensation Act 1985
Western Australia Occupational Safety and Health Act 1984
Workers’ Compensation and Injury Management Act 1981
New Zealand Health and Safety in Employment Act 1992
Accident Compensation Act 2001
264
are not available to employees in many states and territories due to the existence of
the legislation listed in Table 11.2. The following cases serve to examine failure in
the duty owed by the employer to the employee and the material facts that have
created a claim in damages.
The case of WorkSafe Victoria v Map Foundation (2010)43 involved a young wait-
ress who was bullied so severely she committed suicide. The perpetrators were held
accountable as was the employer for not taking steps to halt the harassment. Sig-
nificant fines were issued to the culpable.44 This case followed the New South Wales
case of Bailey v Peakhurst Bowling and Recreation Club Ltd (2009).45 The case
involved Carol Bailey, the plaintiff, who took action against her employer following
a period of bullying by her supervisor. It was held that the employer owed Ms Bailey
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.
With respect to emergency service workers, there is an expectation of exposure
to traumatic and disturbing events. Two cases, both from 2007, one in New South
Wales and the other in Queensland, identified that there are limitations to ensuring
the workplace is safe.
In the case of NSW v Fahy (2007)46, a police officer sued, following her involve-
ment with a grievously injured victim of a stabbing, which led to the plaintiff
developing traumatic stress disorder. The plaintiff was left by her colleague during
the incident and the plaintiff claimed that the injuries she suffered were the result
of her colleague leaving her with the injured party. The police officer failed in her
claim that the New South Wales Police Service failed in their duty to provide a safe
working environment.
In the case of Hegarty v Queensland Ambulance Service (2007)47, an ambulance
officer (paramedic) was exposed to numerous traumatic events over a 15-year period
through the nature of his role and the course of his employment. He suffered post
traumatic stress disorder and obsessive compulsive disorder. The plaintiff was suc-
cessful at trial and awarded damages. The defendant ambulance service appealed
and the respondent’s claim was overturned by the Supreme Court. It was argued
that the employer should have identified the psychological distress. The Supreme
Court’s judgement stated that the employer did not fail in its obligation to protect
the employee’s workplace health and safety.
These judgements infer that there is an expectation that emergency service
workers will be exposed to traumatic events and that is the nature of their role.
Hegarty shows that the provision of counselling services and strategies to the
employee will protect the employer from liability since the employer has made
‘reasonably practicable’ provision to limit inherent stress and harm associated with
the role.
What should I do if I assess that a workplace is unsafe?

As discussed above the employee shares a duty to maintain safe working practices.
Employees have a duty to inform their employer of issues arising that could
be deemed unsafe practices. Section 25 of the Victorian Occupational Health and
Safety Act 2004 legislates for non-delegable responsibilities with respect to a safe
work place:
265
Case 11.2
Vehicle defects
Jordan and Lesley arrive at work 15 minutes prior to the start of their shift to
complete shift checks. Jordan sets about checking the vehicle for any defects.
Approximately 2 minutes before the crew are due to book on, Jordan notices that
the front right tyre is damaged and requires replacing. Although inflated it doesn’t
appear to be safe to drive as there may be an increased risk of the tyre blowing
out due to the apparent damage. Jordan notifies the communication department.
While on the phone the crew are alerted by radio that they have been attached to
an actual time critical life-threatening emergency: a 6-month-old child has been
found unresponsive in its cot by its parents. The location is 3 kilometres away.
Jordan tells the dispatcher over the radio that the vehicle is unsafe to drive under
any driving conditions. The nearest other ambulance is 16 kilometres away. The
dispatcher restates the nature of the incident. The dispatcher also asks whether
the crew are refusing to attend this incident.
1) While at work, an employee must –

a) take reasonable care for his or her own health and safety; and
b) take reasonable care for the health and safety of persons who may be
affected by the employee’s acts or omissions at a workplace; and
c) cooperate with his or her employer with respect to any action taken by the
employer to comply with a requirement imposed by or under this Act or
the regulations.48
Consider now the role the paramedic plays in the community and also a para-
medic’s responsibility to maintain a safe working environment, as in Case 11.2.
In answering the following questions, you will need to access the relevant legisla-
tion for your particular jurisdiction. Similar to Case 11.1, there is an ethical
dilemma as well as a legal issue that lies at the heart of the facts. Essentially, you
must address the questions from the perspective of risks and benefits, and rights
and responsibilities.
1 Should Jordan and Leslie attend this incident? If not, why not?
2 Does the severity of the risk of injury to the crew or to other road users
outweigh the importance of rendering aid to this incident?
3 Would it be acceptable for the crew to attend without driving under
emergency conditions to limit the risk of the tyre blowing out? They
will likely make it to the incident before the other nearest crew even
if the other crew drive claiming exemptions using emergency lights
and sirens.
4 Would you consider this to be a lawful and reasonable request from the
employer, especially as they have been notified about the apparent risk?
266
5 Leslie and Jordan do attend the incident; approximately 300 metres from
the location, the tyre blows and the ambulance overturns injuring both
Jordan and Leslie. Were they justified in taking the risk?
The shootings at Highmoor Cross

Paramedics are often called to dangerous situations. If a potential threat to the crew
is known, paramedics, where possible, are accompanied by police to ensure the
attendant crew members are free to provide assistance without increasing risk to
themselves. This can create a delay with respect to care while the crew wait for the
scene to be made safe. In June 2004 in the English village of Highmoor Cross,
gunman Stuart Horgan shot and killed his estranged wife and one member of her
family and critically injured another. From the first call made to emergency services
at 4.37pm, it took police over an hour to gain access to the property, despite calls
by members of the public on scene that the gunman had fled. The ambulance crew
attached to the incident refused to attend until the scene was made officially clear
from danger. A review of practices following the shootings took place. The then
Chief Constable of the Thames Valley Police chaired the review. With regard to the
ambulance crew, he stated:
At 5.45 pm the Ambulance crew initially refused to attend the scene as the police
could not confirm that the offender had been located and the area was safe. Several
minutes later they agreed to attend with an armed escort … given the confusion,
lack of clarity and actions taken up to that point, a reticence by ambulance staff to
move forward is entirely understandable.49 (emphasis added)
The view taken of the ambulance service was that their delay in attending the
scene was entirely justified. The police decision to hold off before approaching was
not. Given their role and the resources and equipment made available, the police
were expected to attend and make the scene safe, despite the risk of endangerment
to the officers. Paramedics have an obligation under occupational health and safety
law to keep themselves and the other members of staff safe from foreseeable harm.
This obligation trumps their duty of care to their patient because, if paramedics are
harmed by a known risk in their attempts to save their patient, they would not be
able to meet that duty of care. This incident can be contrasted with that of the
Thredbo landslide in July 1997. In his June 2000 report the Coroner, Mr Derrick
Hand, listened to the criticism levied at the emergency services to recover the
victims. It was held by the coroner that ‘because of the extreme danger involved in
moving the debris, the rescue and recovery was carried out in a thoroughly profes-
sional way and with proper and due regard for the safety of the emergency personnel
and those trapped by the debris’.50
What is discrimination?
Broadly, unlawful discrimination, according to Australian and New Zealand legisla-
tion, is concerned with less favourable treatment of the individual based on race,
sex, disability, age, sexuality or religion. Unlawful discrimination in the workplace
prevents the promotion of equal opportunities. This means that some forms of
discrimination are lawful but only in specified ways. Production teams casting for
267
a play, film or television program may seek a person of a particular sex, ethnicity
and age to perform in a role, and this will be considered lawful. Another example
concerns some religious orders in which the ordination of priests is restricted by
gender. Ambulance employers who discriminate against prospective or current
employees are only lawfully able to do so on the grounds that there is an inherent
requirement of the job that would be unable to be undertaken by the prospective
employee or employee for whatever reason.51 For example, a person who has sus-
tained nerve damage in their left arm (and is considered disabled with respect to
disability discrimination52) and is unable to perform CPR or carry heavy equipment,
due to the nerve damage rendering the arm of no use, will be unsuccessful in their
application to become a paramedic. They will also be unsuccessful should they
choose to challenge the decision of the service in legal proceedings on the basis of
that discrimination. However, this should not preclude the person from working
for the ambulance service in another capacity where the inherent requirement might
not be applicable. However, for the purposes of the rest of this chapter, only unlaw-
ful discrimination will be discussed.
The main sources of legislation in Australian and New Zealand relevant to dis-
crimination are given in Table 11.3.
Table 11.3 Discrimination legislation

Commonwealth Racial Discrimination Act 1975
Sex Discrimination Act 1984
Disability Discrimination Act 1992
Age Discrimination Act 2004
ACT Discrimination Act 1991
Human Rights Act 2004
New South Wales Anti-Discrimination Act 1977
Northern Territory Anti-Discrimination Act 1992
Queensland Anti-Discrimination Act 1991
South Australia Equal Opportunity Act 1984
Racial Vilification Act 1996
Tasmania Anti-Discrimination Act 1998
Victoria Equal Opportunity Act 2011
Racial and Religious Tolerance Act 2001
Western Australia Equal Opportunity Act 1984
New Zealand New Zealand Bill of Rights 1990
Employment Relations Act 2000
268
Unlawful discrimination
There are two types of unlawful discrimination: direct and indirect.
Direct discrimination within the context of employment is relatively
straightforward. It is broadly defined as treating an employee less favourably
than another based on, although not exclusively, race, sex, age, disability,
religion or sexuality.
An example of direct discrimination can be found in the case of Kelly v
TPG Internet (2003).53 In this case the plaintiff partly claimed she was promoted
to an acting position rather than a permanent position. She claimed this was
because she was pregnant. The court held that this was unlawful discrimination
and, had she not been pregnant, she would not have been treated less favourably.
The facts demonstrated a violation of principles set out in the Sex Discrimination
Act 1984.
Indirect discrimination occurs when an employee is unable to comply, for
example, with a policy decision based on sex, age, race, disability etc. The
group most likely to be at risk of indirect discrimination is women, and
this is reflected in the case law.
An example of direct discrimination can be found in the case of Australian Iron
& Steel v Banovic (1989).54 In this case the defendant company had recently sought
to increase its female workforce to balance the number of male employees with the
number of females. Sometime after the recruitment drive the employer was forced
to make redundancies. Under the principle of last on, first off the most recent addi-
tion to the workforce will be the first selected for redundancies as part of a com-
pany’s restructuring. The more recently recruited employees were females and, as a
result of the last on, first off policy, were let go first.
It is important to stress that, in today’s multicultural, pluralistic society, diversity
is necessarily reflected in the workplace. If an ambulance service serves a diverse
population, it benefits the community to have an ambulance service that reflects
that diversity in its workforce.
What are bullying and harassment?

Perpetrators of bullying and harassment can be found liable, as can the employer,
if they are made aware of an incident and omit to do anything to stop future epi-
sodes. Harassment and bullying are quite broad terms and can include unequivocal
threats, lewd comments, gestures and ignoring fellow employees. Bullying and
harassment, unlike discrimination, do not require the affected party to show that
they are a class of person that has been unlawfully treated in comparison to another
group or class of persons. A person may be the victim of workplace bullying due
to a simple personality clash.
Bullying and harassment are considered distinct from discrimination but not
exclusively so. Section 28A of the Sex Discrimination Act 1984 defines sexual harass-
ment. Sexual harassment constitutes, but is not limited to, sexual advances, sexual
conduct and requested sexual favours. The test to determine whether an offence of
sexual harassment has occurred is objective and the courts will use the reasonable
person test. The test relates to whether the reasonable person, when faced with the
269
same set of facts and circumstances, would have been offended. The offence need
not be directed at an individual or even intended for offence to be taken to consti-
tute bullying or harassment. For example, some work areas have had material dis-
played (e.g. calendars which objectify women) that are visible to work colleagues
or members of the public. Though the intention is not to deliberately give offence
to anyone in the workplace (man or woman) or the public, if offence is taken it
may constitute harassment, and it is likely that disciplinary action would be taken
against the employee by the employer.
Another increasingly common form of inappropriate workplace behaviour could
involve the use of information technology. Ambulance services communicate to
their employees through emails and policy documents made available on employer
intranet sites. As a result, employer’s computer networks have been open to abuse
and employers have had to provide policies on inappropriate use of workplace
computers. Examples of inappropriate use include but are not limited to: viewing
pornography or sending messages to work colleagues that could be construed
as defamatory; breach of trust and confidence; and using social media to promote
racial and religious intolerance. These are just a few examples of deeply offensive
behaviour that could be construed as bullying or harassment. It may also be
considered sexual harassment if employees are viewing pornography in the work-
place on their own mobile devices, such as laptops, tablets or smart phones, and a
colleague witnesses it either by way of introduction or unintentionally.
Employees must also be careful about what they publish on social media sites
linked to their employer. Generally, anything that reflects badly on the employer
will be considered a disciplinary offence. Employees should understand that they
do not have carte blanche to make defamatory comments about the employer or
fellow employees inside or outside of work hours. This is not limited to publishing
on social media websites but can include social gatherings related to the work envi-
ronment. The United Kingdom case of Chief Constable of Lincolnshire Police v Stubbs
(1999)55 and the case of NSW Attorney-General’s Department v Miller (2007)56
indicate that the offence need not take place on the employer’s property or during
work hours. Employees need to be aware of their responsibilities and understand
that reporting bullying, harassment or any other disreputable actions will lead to
disciplinary action against the offending employee.
What happens if I am threatened at work?

As previously identified, paramedics can frequently be exposed to violence and
violent situations in the course of their work. If an employee is threatened by a
member of the public and the employee seeks to press charges against the person
making the threat, the police, with the employer’s cooperation, will investigate the
alleged threat. Should the threat or infliction of violence originate from another
employee, the employer will be required to take action following the principles
stated above.
An employee may be threatened at work for any reason, but one example that
has generated considerable discussion in recent years is whistleblowing. Whistleblow-
ing occurs when an employee perceives wrongdoing or an act by an organisation
that is considered to be significant enough to justify a public interest disclosure by
270
Table 11.4 Whistleblowing and public interest

Commonwealth s16 Public Service Act 1999
Part 9.4AAA s. 1317AC Corporations Act 2001
s337A Fair Work (Registered Organisations) Act 2009
ACT s26 Public Interest Disclosures Act 1994
New South Wales Part 3 Public Interest Disclosures Act 1994
Northern Territory s14 Public Interest Disclosures Act 2008
Queensland s36 Public Interest Disclosure Act 2010
South Australia s5 Whistleblowers Protection Act 1993
Tasmania s19 Public Interest Disclosures Act 2002
Victoria Part 3 Whistleblowers Protection Act 2001
Western Australia Part 3 Public Interest Disclosures Act 2003
New Zealand s18 Protected Disclosures Act 2000
an employee. The employer may cite that the whistleblowing employee has breached
the terms of their contract of employment by betraying the employer’s confidence
against the claim of public interest. Perhaps the most well-known case of whistle-
blowing in the Australian health care setting is that of Dr Jayant Patel. In that
case, a registered nurse, Toni Hoffman, blew the whistle on Dr Patel, an act that
ultimately resulted in Patel being charged and convicted of three counts of
manslaughter and one count of causing grievous bodily harm, for which he was
sentenced to seven years in jail. In response to this, legislation has been enacted
to protect the whistleblower. The legislation applicable to this area is listed in
Table 11.4.
What is meant by workplace culture?

Workplace culture is distinct from workplace environment. Each profession, argu-
ably, has its own culture, a form of shorthand shared between professionals and a
common parlance associated with the role that bonds colleagues.
Ambulance stations can be a fairly robust environment. Sometimes humour is
used by employees as a form of stress management because of the harsh realities of
the incidents paramedics are called upon to attend. Arguably, this humour could
be considered a little dark for many tastes. This form of humour and the unique
reason for its development contribute to the paramedic workplace culture. The
humour that typifies ambulance employees was even identified in the case of LHMU
v Queensland Ambulance Service (2006)57 where Deputy President Swann acknowl-
edged that ‘[t]here was a preponderance for “black humour” within the ambulance
service, mainly because of the nature of the job where officers dealt with serious
and stressful situations on a continual basis’.57 Awareness of a particular workplace
culture is not an excuse, nor does it condone behaviour that goes beyond the limits
of what is considered acceptable. What does matter is whether the material is
271
considered offensive. Knowing how to use and rely upon these systems to help judge
the appropriateness of an action is part of the development of professionalism. It is
vital that you know that the intent (or lack of ) is immaterial as to whether offence
is caused. Of course, some statements or behaviour will invoke greater revile than
others, depending on the circumstances and parties present. It is of no consequence
to state in defence that whatever act, behaviour or statement made was only
intended as a ‘bit of fun’. All members of the workplace need to be cautious to this
fact and adapt their behaviour accordingly.
Cultural sensitivities are an important cornerstone in today’s society and vital to
maintain in an effective, focused community service. An anecdote shared for the
entertainment of other employees using language that may make the story more
colourful and dramatic can be considered offensive.58 Paramedic employees need to
be vigilant to how they come across to others. This can also include non-verbal
communication. Humour should add, not detract, from workplace culture.59
Today’s workplace needs to be diverse to reflect the community it serves but not
at the expense of neutralising a paramedic’s personality and their warm bonhomie.
Equally, if a colleague or other person who shares the workplace, for whatever
reason, asks a person to refrain from using language that could be construed as
being offensive, despite the interlocutor’s belief that the language they are using is
common and used every day, they must stop. Should they choose to continue and
persist, despite the polite request to stop, they are at risk of exposing themselves to
an allegation of harassment in the workplace.
Conclusion
You ought now to have a better understanding of employment law with particular
emphasis on the issues that affect paramedics. It is important to recognise the
employer and employee relationship and what remedies are available should the
relationship break down in any way. The basis of the employment contract is
one of rights and responsibilities. Each party has to accept their side of their bargain
or exercise appropriate mechanisms for negotiating change.
The topics introduced in this chapter that the reader should now understand
include:
• How an employee is distinct from an independent contractor and why it

is hard sometimes to know the difference.
• How an employment contract is created and negotiated.
• Industrial law that applies to ambulance services and their employees.
• That enterprise agreements and bargaining are enshrined in the FWA.
• The FWA also legislates for national minimum standards for employees.
• Compensation and the workplace.
• Vicarious liability.
• That workplace health and safety are everyone’s responsibility and not
just that of the employer.
• How to report an unsafe workplace or unsafe work practices, and options
available should the employer not resolve the issue.
272
• Direct and indirect discrimination and inherent requirements.

• How bullying and harassment are distinct from discrimination and the
importance of not tolerating such activity in the workplace.
• Workplace culture and associated risks and benefits and that offence need
not be intended for it to be taken.
Review questions
1 An employer announces job cuts and states that only part-time employees
will have their employment contracts terminated.
A Could this be considered a form of discrimination?
B Which class of person will be more affected than another?
C What type of discrimination will this be?
D Why?
2 A member of an ambulance crew witnesses their colleague rifling through
the medicine cabinet of a patient. The paramedic leaves some of the patient’s
medicines but takes other items and places them in their pocket. The para-
medic who witnesses this confronts their colleague about this, as they believe
the medicines have been taken for the paramedic’s own use. The paramedic
who takes the medicine remonstrates with their colleague and threatens
them saying that, if they say anything to anyone, they will ‘do them in’.
Identify the legislation that exists to protect the paramedic who witnesses
this, possibly, suspicious act.
3 A paramedic driving an ambulance under emergency conditions (lights on
and sirens blaring) claims a red light as an exemption and treats the junction
as a give way. They advance through the intersection at 15 km/h. As they
do so, a car collides with the ambulance. The crew isn’t injured but the driver
of the other vehicle is trapped with a fractured femur and requires freeing
from the vehicle by the fire service.
A Is the driver of the ambulance liable for the injuries sustained by the
driver of the other vehicle?
B If not, under what principle?
4 A member of a paramedic crew is continually belittled by their colleague
stating such things as that they are not ‘up to the job’, they couldn’t ‘can-
nulate a barn door in a breeze’ and they ‘flap more than a frogman’s flipper’
even at commonplace incidents. The offended paramedic remonstrates with
their colleague appropriately as to the harm these constant comments cause
them. The offending officer dismisses the complaints and states that – in
fact – they were being supportive by ‘building character’.
A Is the stated defence of ‘building character’ acceptable applied to this set
of facts?
B Why?
273
Following this, the offending member of the crew stops making statements
similar to the ones stated above. Unfortunately, they stop communicating
altogether, good and bad, even when direct questions are asked by the previ-
ously offended crew member, making the paramedic colleague relationship
practically unworkable. Why should this be considered detrimental?
5 A 64-year-old paramedic, who has given excellent service to their ambulance
service, arrives back at station at the end of shift. The paramedic is met by
the area manager to be told that the service is restructuring and creating
positions for a ‘new breed of super paramedics’ and told not to return tomor-
row. They are also told they have done nothing wrong, ‘it is just the way
things are’. The paramedic is thanked for their service, handed a letter with
the words Termination of Contract in bold letters at the top and told they
will be offered some compensation but it has still to be worked out. They
‘should still get paid for a while’, the paramedic is told. The paramedic
accepts the letter and is escorted from the premises.
A Is this lawful or unlawful dismissal?
B Identify the section on the Fair Work Act 2009 that deals with termina-
tion of contract.
C Is the paramedic protected in any way?
D If so, how?
Appendix 11.1
Industrial laws in Australia and New Zealand
International International Convention on the Elimination of All Forms of Racial
Discrimination 1965 (ICERD)
Convention on the Elimination of All Forms of Discrimination Against Women
1979 (CEDAW)
Convention on the Rights of Persons with Disabilities 2007
International Labour Organisation Convention No 100 – Equal Remuneration
Convention 1951
International Labour Organisation Convention No 111 – Discrimination
(Employment and Occupation) Convention 1958
International Labour Organisation Convention No 158 – Termination of
Employment Convention 1982
274
Appendix 11.1
Industrial laws in Australia and New Zealand continued...
Commonwealth Fair Work Act 2009
Age Discrimination Act 2004
Equal Employment Opportunity (Commonwealth Authorities) Act 1987
Occupational Health and Safety (Commonwealth Employment) Act 1991
Disability Discrimination Act 1992
Racial Discrimination Act 1975
Sex Discrimination Act 1984
Human Rights and Equal Opportunity Commission Act 1986
Commonwealth Conciliation and Arbitration Act 1904
Corporations Act 2001
Industrial Relations Act 1988
Privacy Act 1988
Trade Practices Act 1975
Australia Anti-Discrimination Act 1991
Capital Discrimination Act 1991
Territory Human Rights Act 2004
Long Service Leave Act 1976
Workers Compensation Act 1951
Work Safety Act 2008
New South Annual Holidays Act 1944
Wales Anti-Discrimination Act 1977
Civil Liability Act 2002
Employees Liability Act 1991
Privacy and Personal Information Protection Act 1998
Public Sector Employment and Management Act 2002
State Emergency and Rescue Management Act 1989
Workers Compensation Act 1987
Northern Annual Leave Act 1981
Territory Anti-Discrimination Act 1992
Northern Territory Employment and Training Act 1999
Public Sector Employment and Management Act 1993
Workers Rehabilitation and Compensation Act 1986
275
Appendix 11.1
Queensland Ambulance Act 1991
Anti-Discrimination Act 1991
Coal Mining Safety and Health Act 1999
Fair Work (Commonwealth Powers) and Other Provisions Act 2009
Holidays Act 1983
Public Interest Disclosure Act 2010
Public Service Act 2008
Workers’ Compensation and Rehabilitation Act 2003
South Australia Civil Liability Act 1936
Fair Work Act 1994
Fair Work (Commonwealth Powers) Act 2009
Holidays Act 1910
Law Reform (Contributory Negligence and Apportionment of Liability) Act 2001
Occupational Health, Safety and Welfare Act 1986
Training and Skills Development Act 2008
Whistleblowers Protection Act 1993
Racial Vilification Act 1996
Tasmania Anti-Discrimination Act 1998
Industrial Relations (Commonwealth Powers) Act 2009
State Services Act 2000
Statutory Holidays Act 2000
Victoria Accident Compensation Act 1985
Charter of Human Rights and Responsibilities 20061
Public Administration Act 2004
Public Holidays Act 1993
Public Sector Management and Employment Act 1998
Racial and Religious Tolerance Act 2001
Whistleblowers Protection Act 2001
276
Appendix 11.1
Western Civil Liability Act 2002
Australia Employment Dispute Resolution Act 2008
Workers Compensation and Injury Management Act 1981
New Zealand Accident Compensation Act 2001
Employment Relations Act 2000
Equal Pay Act 1972
Health and Safety in Employment Act 1992
Holidays Act 2003
Minimum Wage Act 1983
Parental Leave and Employment Protection Act 1987
State Sector Act 1988
Industry Training Act 1992
Injury Prevention, Rehabilitation and Compensation Act 2001
Bill of Rights Act 1990
Privacy Act 1993
Accident Insurance Act 1998
1
This Charter, enacted by the Victorian State Parliament, the first state and territory to draft and pass human rights
legislation, exists to legislate for basic and fundamental rights, freedoms and responsibilities. Rather than being a piece of
legislation that details directives or offences, for example, it exists to formalise systems and values to protect, what it
considers, to be central to a fair and functioning society for all.
Endnotes
1 Carter, J and Peden, E (2003) Good faith in Australian contract law. Journal of
Contract Law 19, pp. 155–172.
2 Price, R (2009) Employment Law in Principle, 3rd edn. Sydney: Thomson Reuters,
p. 106.
3 ‘[A]n award imposes certain statutory terms and conditions which do not necessarily
displace underlying common law contractual relations. If they conflict, the award or
certified agreement may modify the contractual provisions, but otherwise they
continue to co-exist.’ Quickenden v O’Connor (2001) 109 FCR 243: 278.
4 DEC Marconia Systems PTY Ltd v BHP Information Technology [2003] 128 FCR 1:
paras 918–920.
5 BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 266.
6 BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 283.
7 ‘[T]here is no obligation upon an employer to provide work to an employee unless
the contract of employment specifically requires that it be provided, or where it was
necessary for an employee, an actor for example, to continue to be employed in
order to maintain a profile, or where the employee’s career and future prospects
277
depended upon the employee working in a particular way, or where the employee’s
remuneration depended upon the amount of actual work performed by the
employee.’ Blackadder v Ramsay Butchering (2005) 221 CLR 539: 562.
8 Matthews v Kuwait Bechtel Corp [1959] 2 QB 57.
9 Lister v Romford Ice and Cold Storage Co Ltd [1957] AC 555.
10 Goldman Sachs JB Were Services Pty Limited v Nikolich (2007) 163 FCR 62.
11 Department of Health 2005 Taking Healthcare to the Patient: Transforming NHS
Ambulance Services. Online. Available; http://www.dh.gov.uk/prod_consum_dh/
groups/dh_digitalassets/@dh/@en/documents/digitalasset/dh_4114270.pdf
(accessed 8 June 2012).
12 Abdalla v Viewdaze Pty Ltd (2003) 122 IR 215.
13 Stevens v Brodribb Sawmilling Co Pty (1986) 160 CLR 16.
16 Hollis v Vabu Pty Ltd (2001) 207 CLR 21.
17 Abdalla v Viewdaze Pty Ltd (2003) 122 IR 215: 234.
18 Abdalla v Viewdaze Pty Ltd (2003) 122 IR 215: 223–224.
19 Sweeny v Boyland Nominees Pty Ltd (2006) 226 CLR 161.
20 Lister and others v Helsley Hall Ltd [2001] 2 WLR 1311.
21 Guide – Making an enterprise agreement. Online. Available: http://www.fwa.gov.au/
index.cfm?pagename=resourcefactsmakingagreements (accessed 8 June 2012)
22 Section 12, Fair Work Act 2009.
23 Stewart, A (2011) Stewarts’s Guide to Employment Law, 3rd edn. Sydney:
The Federation Press, pp. 119–120.
24 Fair Work Act 2009. Online. Available: http://www.comlaw.gov.au/Details/
C2011C00580 (accessed 8 June 2012).
25 Lowns v Woods (1996) Aust Torts Reports 81–376.
26 Cooper, R and Ellom, B (2009) Fair work and the re-regulation of collective
bargaining. Australian Journal of Labour Law 22, p. 284.
28 Livingstone v Raywards Coal Company (1880) 4 App Cas 25.
29 Livingstone v Raywards Coal Company (1880) 4 App Cas 39.
30 ILOLEX Database of International Labour Standards. Online. Available:
http://www.ilo.org/ilolex/english/convdisp1.htm (accessed 8 June 2012).
31 Murray Irrigation v Balsdon (2006) NSW CA 253.
32 Guide – Unfair dismissal. Online. Available: http://www.fwa.gov.au/index.cfm
?pagename=resourcefactsunfair (accessed 8 June 2012).
34 Spring v Guardian Assurance plc (1994) 3 WLR 354.
35 Johnstone v Bloomsbury Health Authority (1991) 2 WLR 1362.
36 Koehler v Cerebos (Australia) Limited (2005) 222 CLR 44.
37 Section 46, Ambulance Aid Act 1991 (Qld).
38 ILOLEX Database of International Labour Standards. Online. Available:
http://www.ilo.org/ilolex/cgi-lex/convde.pl?C155 (accessed 8 June 2012).
278
39 ‘[I]t is [the duty of a reasonably prudent employer] to take reasonable care to avoid
exposing the employees to unnecessary risks of injuries. The degree and care of
foresight required from an employer must naturally vary with the circumstances of
each case.’ Hamilton v Nuroof (WA) Pty Ltd (1956) 96 CLR 18: 25.
40 Wyong Shire Council v Shirt (1980) 146 CLR 40.
41 Model Work Health and Safety Bill. Online. Available: http://safeworkaustralia.gov.
au/AboutSafeWorkAustralia/WhatWeDo/Publications/Documents/598/Model_
Work_Health_and_Safety_Bill_23_June_2011.pdf (accessed 8 June 2012).
42 For a definition of enclosed please refer to: Cancer Council Victoria (2008) Tobacco
in Australia: Facts and Issues, 3rd edn. Online. Available: http://
www.tobaccoinaustralia.org.au/downloads/chapters/Ch15_Smokefreeenv.pdf (accessed
17 November 2011).
43 WorkSafe Victoria v Map Foundation Pty Limited trading as Café Vamp and Ors
(Magistrates Court of Victoria, 8 February 2010).
44 Devine, E (2010) Bullying and harassment at work. What it is, why you can’t afford
it and what to do about it. Online. Available: http://devinelaw.com.au/downloads/
Legalwise%20-%20Bullying%20and%20Harassment.pdf (accessed 8 June 2012).
45 Bailey v Peakhurst Bowling and Recreation Club Ltd (2009) NSWDC 284.
46 NSW v Fahy (2007) 232 CLR 486.
47 Hegarty v Queensland Ambulance Service (2007) QCA 366.
48 Section 25, Occupation Health and Safety Act 2004 (Vic).
49 A review of the practices and procedures adopted by Thames Valley Police in
connection with the fatal shootings at Highmoor Cross on Sunday 6 June 2004.
Online. Available: http://www.publications.parliament.uk/pa/cm200405/cmselect/
cmhaff/370/370we61.htm (accessed 8 June 2012).
50 Hand, D (2000) Report of the inquest into the deaths arising from the Thredbo
landslide. P. 162 para 805. Online. Available: http://www.lawlink.nsw.gov.au/lawlink/
local_courts/ll_localcourts.nsf/vwfiles/Thredbo_Final_Report.PDF/$FILE/Thredbo_
Final_Report.PDF (accessed 8 June 2012).
51 Section 21A, Disability Discrimination Act 2004.
52 Section 4, Disability Discrimination Act 2004.
53 Kelly v TPG Internet Pty Ltd (2003) 176 FLR 214.
54 Australian Iron & Steel v Banovic (1989) 168 CLR 165.
55 Chief Constable of Lincolnshire Police v Stubbs (1999) IRLR 81.
56 NSW Attorney-General’s Department v Miller (2007) 160 IR 185.
57 LHMU v Queensland Ambulance Service (2006) QIRComm 58.
58 Employability skills and workplace culture in Australia. Online. Available: http://
www.vetinfonet.det.wa.edu.au/accessequity/docs/02993%20-%20det%20-%20
work%20place%20culture%20guide.revise.small.pdf (accessed 8 June 2012).
59 Holmes, J and Marra, M (2002) Having a laugh at work: how humour contributes
to workplace culture. Journal of Pragmatics 34, pp. 1683–1710.
279
Chapter 12
Record keeping and the patient
health care record
Peter Lang
Learning objectives
After completing this chapter you will be able to:
• Describe the purpose of a patient health care record and its uses
• Outline the type of information that should be included in the record
• Describe the method for correcting errors in a record
• Identify what right a patient has to gain access to their record
• List the circumstances under which a patient or other person can be allowed
access to paramedic records
Definitions
Patient health care record A document containing personal, sensitive and health
care information including a patient’s medical history and the health care provided
by health professionals.
VACIS system A computerised patient health care record system designed by
Ambulance Victoria that is now used by a number of Australian ambulance
services (VACIS is an acronym for Victorian Ambulance Clinical Information
System).1
Paramedic witness
It’s 6 am and you are a single on-call paramedic and are called to a person who is
unconscious with ‘cardiac problems’. On arrival you assess the scene and all is
quiet. A calm elderly male meets you in the street and leads you to a supine body
under a blanket on a mattress on the grass in a backyard of a residential home.
On your way across the driveway you ask the bystander what happened. You are
told a jumbled story about the patient collapsing because his heart gave out. Your
questions are evaded with other rambling, confused responses. As you approach
the patient, you see that he is in his late twenties, and you start to realise
280
12 Record keeping and the patient health care record
Paramedic witness continued...
something is not right. You are told that ‘It wasn’t me, it was him, Max did it’ as
you kneel down and pull the blanket off the patient. As you ask, ‘Where’s Max?
What did he do?’ you notice that the patient has a large bullet hole in the
centre of his chest. He is almost as pale as you have suddenly become; he is not
breathing and is pulseless. You nervously look at the bystander as he says, ‘Max
did it, Max killed him, then he took off in my car’. Shortly after, the police enter
the scene and take control. You hear the police ask the bystander for an account
of what happened, and you hear the bystander say he just found the patient lying
there and that he has no idea what happened.
This chapter will explain the importance of correct, contemporaneous and
complete documentation and what aspects of paramedic practice this can impact
on. In cases such as this one, a paramedic’s notes and what a paramedic hears
and sees are often used and relied upon, not only in the clinical context, but as
evidence in a number of different environments. In this case, a statement made
to the paramedic by the bystander differs from accounts given later to police.
Statements made to the paramedic, things the paramedic witnesses and written
documentation made by the paramedic about a case will at times become part of
the evidence and may be significant for police, the coroner and the courts. In this
case, the reference to ‘Max’ by the bystander may be significant in giving the
police a lead to the possible suspect and, unless the bystander gives this
information to police, the paramedic may be the only one who can provide
police with this information.
Introduction
Healthcare professionals, including paramedics, must document details of their
assessment, management of and interaction with every patient. This important
information is recorded on a document commonly known as the patient health care
record (PHCR). The record must be compiled at the time of the interaction or
incident and finalised shortly afterwards. This is commonly known as writing
contemporaneously and is more likely to ensure an accurate record is made. In
the Australian and New Zealand environment the patient record is commonly
either handwritten on a carbonised printed form (usually in triplicate) or typed
electronically into a computer program designed for this purpose. This record,
however obtained and recorded, becomes a confidential PHCR and is an essential
component of the patient’s health care journey. This record becomes a form of refer-
ence to be used by clinicians to assist in the understanding of and the delivery of
health care to the patient. It is also used as a resource for a number of secondary
and future purposes.
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The PHCR may also be given, in some situations, to the patient or another
healthcare professional at the conclusion of the paramedic interaction, particularly
if the matter is non-urgent and the patient will be referred on, left in their own care
or left in the care of others to later present to their chosen healthcare professional.
This record may also at times be called upon by a court or investigator as evidence,
providing support to, or acting as, primary evidence of names, dates, times and
places, and providing details of what the paramedic saw, heard, was told or did in
a particular situation. Effective, clear and concise documentation of objective, rel-
evant and firsthand information is essential to capturing the required detail onto
the document that is not only credible, but useful in providing a record that con-
tributes to the holistic care of the patient. The correction of errors must be per-
formed in an appropriate way to ensure the integrity of the record is not
compromised, or its reliability rendered invalid.
Importantly, a PHCR is a private and confidential document about the patient
with whom a paramedic interacts. Maintaining the privacy of those records is not
only an ethical responsibility for paramedics, it is also a legal one. In every jurisdic-
tion in which a paramedic works, the government has legislation protecting an
individual’s rights to privacy with respect to the collection, storage and use of their
medical records. This legislative requirement, therefore, impacts on the way in
which paramedics and paramedic services collect, store and use that information
appropriately. Privacy is an important responsibility of all healthcare workers.
This chapter will explore:
• the nature of a patient health care record
• electronic records
• record ownership
• confidentiality and privacy
• record access
• what a record should contain
• correction of errors in the record.
What is a patient health care record?

A PHCR is a record that is created by a clinician, usually immediately after an
interaction with a patient. It generally contains details to identify the individual the
record pertains to, as well as an account of the patient’s health information and any
information that is linked with the patient’s episode of care (see Appendix 12.1 for
an example). This may include their medical history of previous illnesses, injuries
and treatments and medications the patient is currently taking and has been previ-
ously prescribed. It may also contain results of any assessments, blood tests, scans,
X-rays, details of any sensitivities or allergies, and any other relevant information
related to the patient’s health, such as social details, family history, disabilities and
details of any health professionals who have been involved with the patient. A
paramedic’s record, case sheet, slip, electronic record or the like, which is used by
a paramedic to record details of an incident, is considered a PHCR.
The PHCR is predominantly used as a confidential source of information given
by paramedics to other authorised healthcare professionals who take responsibility
282
for that patient. Documentation supports the verbal handover report given as the
patient is physically transferred, and provides a point of reference for receiving clini-
cians to understand the events leading up to the patient’s current condition(s),
observations made including signs and symptoms, their previous medical history,
allergies and sensitivities, their current medications, any treatments and procedures
performed by the paramedic and any outstanding or unresolved issues. This infor-
mation informs and supports the continuation of treatment as the patient continues
their journey through the health care system.
In the paramedic context, a PHCR may also contain other non-medical informa-
tion such as private health insurance details, government support systems’ entitle-
ment status and details, employment status, workplace or institution billing details,
patient’s address and telephone number(s), relatives’ contact details, equipment used
to treat the patient and various forms of demographic information. This informa-
tion is often collected to enable the paramedic service to obtain funding, substanti-
ate a claim for cost recovery, provide demographic details of work performed and
establish a data set to improve service delivery or to provide contact information
for patients or their relatives for further use.
In some organisations and jurisdictions, certain data from the record are also used
in a number of other contexts, including in the gathering of statistical information
and research data, both medical and organisational, for a number of purposes
including organisational performance, clinical research, motor vehicle crash data
analysis, crime statistics, population demographics and clinical outcomes. These
data are normally de-identified and extracted for analysis as required. The record
can also be used in clinical auditing for individual paramedic or service performance
and the monitoring of medication administration and equipment usage at a number
of organisational levels.
Electronic records
For many years, health records have been collected in paper form. Data may have
been collected from these forms, or may have been scanned into electronic form.
Doing this was not only labour intensive, but the data collected were subject to
interpretation at the point of transfer, or errors may have been made in the tran-
scription process. With the advent of modern technology, records are increasingly
made in electronic form at the patient’s side. In 2005 Ambulance Victoria estab-
lished the Victorian Ambulance Clinical Information System (VACIS), a stan-
dardised ‘episode’-based electronic patient care record designed for paramedics to
enter patient health care information and data at the point of care using a portable
tablet style computer.1 The record (and data) entered by the paramedic is uploaded
to a centralised secure data centre for storage and further analysis. The functionality
of the system potentially allows for electronic transfer of selected parts of the
patient’s record to the health facility taking over care of the patient or for the print-
ing of the report in the ambulance for traditional paper-based record transfer.1
A number of state ambulance services in Australia have joined to form the VACIS
collaboration, a non-profit entity enabling the member state services to ‘work(ing)
together collaboratively to develop, implement and enhance VACIS throughout
Australia’.1 These member services include ACT Ambulance Service, Ambulance
283
Figure 12.1 VACIS electronic medical record

Source: VACIS(R) ©2007
Service of New South Wales, Ambulance Tasmania, Ambulance Victoria and

Queensland Ambulance.1 These bodies have all introduced the VACIS system into
their respective services, commencing with Ambulance Victoria in November 2005,
with the latest rollouts being Ambulance Service of New South Wales and Ambu-
lance Tasmania in 2010.1 Drawing data from these large ambulance services will,
when combined, provide a significant database for potential research, analysis and
service delivery improvement.
To illustrate the enormity of the change, and the logistics involved in installing,
operating and maintaining this equipment, the Ambulance Service of NSW forecast
expenditure of $13 million over three years2 to introduce electronic medical records
to its 226 sites, 860 frontline ambulances and 4000 paramedics.3
As with all technology, data can be lost or transferred outside secure areas if safety
and security systems are not put in place. Governments have been working to keep
up with technology by legislating to ensure safety systems and data security are
requirements of any electronic record system. Systems are designed and required to
protect privacy and limit access to information. Systems like the VACIS electronic
medical record (eMR) (see Fig 12.1) are kept on secure networks, with password
enabled access and multi-level security clearances preventing unauthorised access.
Record ownership
The custodial ownership of medical records generally lies with the organisation,
individual or facility that collects the information.4 In most cases of paramedics’
practice, the custodian of the records is the body for whom the healthcare profes-
sional works and on whose behalf they collect the records. Paramedics who work
for an organisation do not automatically have a right to use the information for
their own personal use or for research purposes, despite having collected it on the
284
organisation’s behalf. While standards of record storage and security in all jurisdic-
tions are generally similar in intent, the laws that apply depend on where the
organisation sits or for which organisation paramedics practise. Those services pro-
vided by the state/territory or by state/territory contractors are required to comply
with state/territory legislation. Importantly for paramedics, records should be stored
in authorised facilities in accordance with the organisation’s record-keeping proce-
dures, which should comply with the relevant jurisdiction’s laws.
Confidentiality and privacy

Medical records contain personal, sensitive and private details. As such, society
wants to ensure that this information remains private and is protected by laws to
prevent information being misused or disclosed to persons who have no right to it.
In Australia, there are a number of pieces of legislation that aim to maintain
privacy for individuals. These include the Privacy Act 1988 (Cth)5 and the Privacy
Amendment (Private Sector) Act 2000 (Cth).6 Stemming from the legislation are the
Information Privacy Principles, of which eleven principles relate to health and hos-
pitals.5 Many Australian states and territories have enacted their own complemen-
tary legislation, which is very similar to or mirrors the concepts of the Commonwealth
Information Privacy Principles, and have also enacted legislation and policies to
protect personal information and provide secure mechanisms for patients and others
to access information. Each government department and any health organisation,
in turn, must develop policies and practices that support these principles.
In New Zealand, the Privacy Act 1993 aims to maintain privacy for individuals;
this piece of legislation contains 12 generic privacy principles.7 In addition,
New Zealand has a Privacy, Authentication and Security (PAS) Guide to assist
with the maintenance of all types of information privacy, particularly that of
electronic data.7
In Australia, there are various pieces of legislation that relate to health care
records, depending on which jurisdiction the particular organisation operates in
and what type of organisation it is.8 For example, a private paramedic service
operating in Western Australia is required to abide by the Privacy Act 1998 (Cth)
and the Privacy Amendment (Private Sector) Act 2000 (Cth), whereas a public
service operating in WA comes under the jurisdiction of the State Health Act 1911
(WA).8 This multiple legislature complexity derives from the way in which the
Commonwealth of Australia was created and how it operates under the Australian
Constitution, with states and the Commonwealth having the ability to create
legislation in their respective jurisdictions. However, most of the pieces of legisla-
tion are similar in that they generally mirror or comply with generally accepted
privacy principles.
Table 12.1 provides a list of legislation that governs health care records and
privacy for each jurisdiction in Australia and New Zealand. As you will see, public
and private sector providers are often covered by different legislation.
Access to medical records

Access to medical records is an essential aspect of privacy paramedics should be
aware of. In the section ‘Patient access to their own records’, we explore a patient’s
285
Table 12.1 Applicable health legislation by jurisdiction

Jurisdiction Legislation (public sector Legislation (private sector
organisation) organisation)
Commonwealth of Privacy Act 1988 (Cth); Privacy Privacy Act 1988 (Cth); Privacy Amendment
Australia Amendment (Private Sector) (Private Sector) Act 2000 (Cth)
Act 2000 (Cth)
Australian Capital Health Records (Privacy and Privacy Act 1988 (Cth); Privacy Amendment
Territory Access) Act 1997; Privacy Act (Private Sector) Act 2000 (Cth)
1988 (Cth); Privacy Amendment
(Private Sector) Act 2000 (Cth)
New South Wales Health Records and Information Health Records and Information Privacy
Privacy Act 2002 (in force Act 2002 (in force 2004); Privacy Act 1988
2004); Privacy and Personal (Clth); Privacy Amendment (Private Sector)
Information Protection Act 1998 Act 2000 (Cth)
Northern Territory Information Act 2002 Privacy Act 1988 (Cth); Privacy Amendment
Queensland Information Standard 42A Privacy Act 1988 (Cth); Privacy Amendment
(Health) (Private Sector) Act 2000 (Cth)
South Australia Information Privacy Principles Privacy Act 1988 (Cth); Privacy Amendment
Tasmania Information Privacy Principles Privacy Act 1988 (Cth); Privacy Amendment
1997 (Private Sector) Act 2000 (Cth)
Victoria Health Records Act 2001 Health Records Act 2001
Western Australia Health Act 1911 Privacy Act 1988 (Cth); Privacy Amendment
New Zealand Privacy Act 1993; Health Privacy Act 1993; Health Information
Information Privacy Code, Privacy Code, clause 4(1); Health Act 1956
clause 4(1); Health Act 1956
Adapted from Staunton, P and Chiarella, M (2008) Nursing and the Law, 6th edn. Sydney: Elsevier.
ability to gain access to their own health care records, and in the section ‘Who else
can gain access to records?’ we look at others who are able to access records and for
what purpose. Paramedics are occasionally requested for information, and it is
necessary for the paramedic as custodian of confidential information to know who
and they can release information to and when and also how to advise a patient
should they ask the paramedic for access to their own records. A paramedic should
be aware of their institution’s policies and processes on record access and know
where applications for such information should be directed.
Patient access to their own records

Case 12.1 illustrates a common occurrence that a paramedic may be faced with
when interacting with the public.
286
Case 12.1
A patient’s right to access their PHCR
Mr Wilson knocks on the ambulance station door, wishing to thank the
paramedics who assisted him when he fell over in the supermarket last month. He
shows off the cast covering his fractured left arm. Mr Wilson also requests a copy
of the paramedic’s record so he can use it to sue the supermarket for causing his
pain and suffering.
What right does he have to access his records? What advice would you give him
on how he might go about obtaining them? We explore this scenario and discuss
the answers to these questions in the following text.
The health care record is about the patient and their current medical situation,
and it could be assumed that, as the record is about the patient, the patient should
be entitled to access its content. Generally, the patient has an entitlement to access
any information held about them within the public sector. Applications to obtain
personal health care records can often be made directly to the organisation where
the records are held and, if this is not possible, through the Australian state or
Commonwealth commissioners9 or via the provisions of the freedom of information
Acts in each jurisdiction.
However, access to records in the private sector has not always been possible. In
1995, Ms Breen brought a case against her surgeon, Dr Williams, in the Supreme
Court of NSW to get access to her records. Although Dr Williams had records
pertaining to her, the access was refused based on the argument that the doctor had
not made the notes with the intent of her copying and reading them.8 Ms Breen
subsequently lost her appeal to the New South Wales Court of Appeal, and to the
High Court of Australia, on the basis that a doctor can provide information to the
patient from their notes without disclosing the entire notes and, therefore, should
not be compelled to do so.8
Following this case, a number of changes were made to improve the ability
of patients to access information9 held by private practitioners, including the
establishment of the Information Privacy Principles (specifically principle 6) under
the Privacy Act 1988 (Cth) as well as the enactment of the Privacy Amendment
(Private Sector) Act 2000 (Cth) and the establishment of the Commonwealth
Privacy Commissioner8, who is now known as the Australian Information
Commissioner.
In New Zealand, applications for access to records can be made through the
record holder and can only be refused in exceptional circumstances described in the
Privacy Act 1993.10 Private organisations can charge reasonable fees for copies of
X-rays and other images; however, if the fees will be over $30 the details must be
provided to the applicant prior to them incurring the costs.10 Access to records in
New Zealand is governed under the Health Information Privacy Code 1994, which
has the force of law.10 Any complaints, lack of action or over-charging for records
287
can be referred to the New Zealand Privacy Commissioner, who can investigate and
rule on the complaint.10
Generally, paramedics’ records may be accessed by patients9, and so paramedics
should be aware that at some point their documentation will not only be read by
other clinicians, but may also be read by the patient. Patients wishing to gain access
to their records should be directed to the appropriate office for access. It is impracti-
cal and unreasonable for paramedics to be expected to supply a copy of a record to
a patient on the spot, so paramedic service providers should have up-to-date policies
on how to deal with applications from patients wishing to access their records. These
policies should comply with the relevant laws in the jurisdiction in which the
organisation operates. Paramedics should be aware of, and familiarise themselves
with, these policies so as to be able to inform and direct patients to the correct office
or person when approached.
Who else can gain access to records?

Paramedics routinely hand over a copy of their completed medical record when
they hand responsibility of a patient to another health professional at a hospital. In
Case 12.2 we examine a situation where a paramedic might consider divulging
health information to another person outside of the typical situation, and in the
following text we explore the legal context of that information transfer.
You are unsure about what you are legally permitted to share with the
patient’s general practitioner. We explore the legal context of this situation in the
following text.
The record can sometimes contain pertinent information that can be relied upon
to substantiate claims, refute accusations, justify actions or provide details that lead
to a conclusion. Courts often call upon paramedics and their records to assist in
court proceedings, particularly where the paramedic attended a person who is now
subject to court proceedings. Police, the coroner and the courts can gain access to
a person’s records by subpoena. Often, when making insurance claims, a claimant
is required to sign a release to permit the insurance provider to access health record
information prior to a claim being reviewed.11 On occasions, the details of a record
can be scrutinised closely and may be pivotal in deciding a claim or case.
Case 12.2
To share or not
You attend to and treat Mr Jones, a 73-year-old man who has open leg wounds
after his leg collided with a table corner as he was walking around in his home.
You discover in taking a history that he also has chronic circulation problems as a
result of his diabetes mellitus (type 2). You dress his wounds; however, you are
concerned about his healing capacity given his coexisting conditions. The patient,
however, decides he does not wish to be transported and will instead attend his
local general practitioner at the local medical clinic.
288
Under the national privacy principles in both Australia and New Zealand, and
in legislation in most jurisdictions, health information collected must not be used
or disclosed without consent for a secondary purpose unless it is directly related to
the primary purpose for which it was collected11, or unless releasing it is necessary
for the prevention of serious threat to life. In the case study of Mr Jones, the infor-
mation was collected to deliver health services to Mr Jones, and the release of
information by the paramedics to Mr Jones’ general practitioner or to another health
professional involved in the continuation of his treatment and health care for the
same conditions would be permitted under this principle.
Content of a record
Case 12.3 illustrates the importance of being objective in documenting your obser-
vations. Paramedics often see things that conflict with what they have been told, so
it is important to identify and clearly document what has been witnessed firsthand,
and what has been said to have occurred.
In this case the paramedic observes that she is no longer in the car, both doors
of the car are open and she has a seatbelt haematoma consistent with someone
who was sitting on the passenger side of the vehicle. Mrs Peterson informs the
paramedic that she was the only occupant and she was driving. Is it possible she
was the driver? Is it possible she was the passenger and the driver has absconded
from the scene? What would you do if you were the paramedic and how should
this case be documented?
The most appropriate way to deal with this is to clarify the information with Mrs
Peterson, including having a discussion about the seatbelt marks, and in doing so
you would express your concern for anyone else who may have been in the vehicle
who may have serious injuries. There may be a valid explanation for these incon-
sistencies; however, you need to explore them in case a third person is injured
somewhere. Document the facts, including the direction of the seatbelt haematoma,
Case 12.3
Dealing with inconsistencies
A paramedic has responded to a motor vehicle crash involving two cars. On arrival
he finds an elderly female, who identifies herself as Mrs Peterson, sitting in the
gutter near a car. She tells the paramedic that she was in the sedan with front
end damage. Her car has both passenger and driver side doors open. The other
car, which has been hit side on, contains a deceased male. The paramedic
commences assessment of Mrs Peterson and during his secondary survey he
notices that, among other injuries, she has a visible seatbelt haematoma mark
crossing from her left shoulder to her right hip. The paramedic asks where she
was sitting in the car at the time of the crash, and if anyone else was with her,
and she reports that she was the only occupant and she was driving.
289
clearly state that you found the patient out of the vehicle on your arrival and note
that the patient informed you she was driving. It will also be necessary to inform
the police of your suspicions and why, as the information you have will not be
available to them and will assist them in making enquiries about the possibility of
another occupant in the vehicle. The records you keep of this incident could be
called upon by the police, courts, hospital or even Mrs Peterson’s doctor, so it is
vitally important you record the information properly.
Record formatting and the content of health information collected vary greatly
from jurisdiction to jurisdiction as there is no one model to follow. Traditionally,
each ambulance service designed its own paper-based (usually A3 format) triplicate
form to record an event or patient interaction, the medical details, billing details
and any other relevant information (but increasingly to collect data for later analy-
sis). Each jurisdiction developed its own format and, while based on similar health
information, generally these formats were structured around each organisation’s
needs and did not necessarily collect the same information. Many organisations
progressed from handwritten notes to a combination of free text and tick boxes and
coloured-in fields to enable scanning and data collection. In Australia in particular,
with the state ambulance authorities forming the Convention of Ambulance
Authorities, a standardised data collection set was agreed upon12, which with man-
datory fields has helped to focus documentation on particular sets of data. As we
have already discussed in this chapter, in recent years standardised eMR systems
have or are being introduced into state/territory ambulance services. Many of the
services are using the same eMR system, thus standardising data collection and the
general format of the medical record. The importance of how a medical record is
written is highlighted in Case 12.4.
Ultimately, this was a case that more relevantly revealed the court’s view of para-
medics and their understanding and value of their work. From the lawyers repre-
senting the plaintiff, through the state courts and up to the High Court, the
sentiment was the same. At no time was a paramedic called to explain the meaning
of their notes or to allow the court to determine if the notes were expert opinion
or, indeed, whether they were simply a lay opinion based on the things the para-
medic writing the notes heard and saw for himself. Case notes are recognised at law
as ‘business records’ and, as such, they can be admitted to the court and used as
evidence of what has or has not happened without the court necessarily having to
rely on a direct account from the person who wrote them. However, given the
dispute over, firstly, the importance or not of the question mark and, secondly, the
discussion about ‘opinion’ evidence and, more specifically, the opinion of the para-
medics, one would have thought the paramedics themselves would have been called
to offer an explanation to the court. Indeed, the court demonstrated a lack of
understanding as to why the paramedics would make such a notation at all. Para-
medics understand that the mechanism of a patient’s injury can assist in diagnosis
and treatment. The court seemed to think that the opinion was recorded for possible
future investigations as to the cause of the injury (e.g. coronial inquiry) or because
they are required to do so as a matter of ‘training’. They supposed that the question
mark was placed in the statement because it was ‘merely something that would be
consistent with training, that is to say, not to be adamant but to put forward one’s
290
Case 12.4
The importance of punctuation
In the early hours of the morning an ambulance was called to a man in a drain in
a park in Lithgow, NSW. The man, Mr Jackson, was at the foot of a 1.5-metre
high drain wall. He had multiple injuries, including a serious head injury that
rendered him unconscious. The paramedic case notes recorded the history as ‘?
Fall from 1.5 metres onto concrete’. The paramedics treated the man and he was
taken to hospital. The man later sued the council for negligence for failing to erect
a fence that would have prevented him suffering his multiple injuries.
There was a dispute as to how the man’s injuries had been caused because there
were a number of different ways in which he could have arrived at the bottom of
the drain. If Mr Jackson could prove, on the balance of probabilities, that he had
suffered the injury as a result of falling off the ‘high’, unprotected side of the
drain, he would be eligible for compensation for his injuries. He relied on the
ambulance notes to prove his case.
The court was presented with the case notes without the ‘?’ included. It had been
cut off in the photocopying of the documents. The court thought that the
statement ‘Fall from 1.5 metres onto concrete’ was the opinion of the treating
paramedic, and thus it added weight to Mr Jackson’s case. The case came before
another court; however, once it was discovered that the ‘?” had been missing from
the material originally tendered to the court, the court had to consider whether the
missing question mark made a difference to Mr Jackson’s case. To resolve this
matter the case went all the way to the High Court. The High Court said that the
paramedic statement ‘? Fall from 1.5 metres’ was so ‘ambiguous as to be
irrelevant’ and that, as such, the question mark did not matter. In addition,
the court found that it was ‘not possible positively to find that [the paramedic
notes] stated an opinion’ as to the cause of Mr Jackson’s injuries. The case
was dismissed.13
best opinion taking into account all the circumstances’.13 In fact, the High Court
did not think that the paramedics were expressing an opinion about the cause of
the injury at all and, as such, the notes were inadmissible.
The following sets of information are generally accepted as required in any
PHCR:
• patient identification
• critical information (such as allergies)
• important and relevant information (such as mechanism of injury)
• presenting problem, conditions, provisional diagnosis
• history and assessment findings (including pertinent negatives)
291
• treatment given and medications administered

• current medications and other conditions.
In the following sections we shall outline each of these types of information.
Patient identification
The patient must be identified, or the record must be clearly identifiable as pertain-
ing to this particular patient as part of the record, and each page should clearly
contain the same identification information.14 First name, surname, date of birth,
age, address, medical record number or health care card number are all examples
of identifying information that is specific to a patient and is used for their identi-
fication.14 This is essential to ensure the documentation and subsequent information
contained within pertains to the correct patient. Errors of identification are common,
and incorrect identification can have dire consequences, such as incorrect adminis-
tration of medication which, in some cases, has caused the death of a patient.
Critical information
Information of a critical nature such as allergies, medication reactions, blood dis-
orders, immune deficiencies and other critical information must be recorded clearly
and obviously on each page so other clinicians can clearly see and check for these
alerts prior to administration of medications.14 Not knowing this information can
result in medications being given that will cause serious harm to the patient.
Important and relevant information

Paramedics often exclusively gain insight and gather other information from the
patient, the scene of an incident and bystanders that can be essential in the assess-
ment, management and ongoing care of a patient further along the timeline. If this
information is not recorded, it is often lost and lack of this knowledge may impact
on the accuracy and time taken to diagnose and manage a patient. The mechanism
of injury in trauma patients is often helpful in understanding possible injuries,
particularly where a patient has suffered a range of major injuries and pinpointing
a specific internal injury is proving problematic. This includes, but is not limited
to, the angle of impact, the estimated speed, distance of fall, type and amount of
damage to vehicle, airbag deployment, location of patient, ejection from or presence
in vehicle, length of knife (in stabbings), type and calibre of weapon, accelerant
type in burns or type of medication, chemical or poison ingested. This information
may be important at a later stage and should be included if possibly linked to the
patient’s condition.
Presenting problem, conditions, provisional diagnosis

In paramedic practice the presenting problem is a standard piece of information
that is provided to ensure that others reading the documentation are clear on
what the patient’s main reason for calling or chief complaint was. Generally the
patient is seeking assistance in relieving the chief complaint. Depending on the
paramedic’s level of training, experience and the organisational procedures,
292
a provisional diagnosis may also be provided and documented on the record. A

provisional diagnosis is made when a paramedic uses experience, understanding and
knowledge to evaluate the patient’s condition, using clinical signs and symptoms,
information gained through assessment and exploration of the patient’s history and
other possible causes, to establish a working hypothesis of what the most likely
underlying problem or cause is so as to implement a treatment regimen.
History and assessment findings

The history of the patient’s current condition and/or pre-existing conditions and
any clinical findings identified by primary and secondary assessments must be
documented to provide other clinicians with a clear record of what information the
paramedic found and based their provisional diagnosis and treatments on. Any
injuries, illness, events leading up to the situation, medications taken, actions,
signs, symptoms, observations and history should all be documented as they relate
to the patient’s current condition.14 It is important to also provide a negative
finding or pertinent negative to a specific test or assessment, particularly if it is best
practice for that assessment to be carried out in that circumstance. For example, if
a diabetic patient was feeling unwell, it would be best practice to assess whether
the patient’s blood glucose level is within normal ranges. The details of that assess-
ment should be documented, regardless of its result, to demonstrate that it was
undertaken.
Current medications and other conditions

Noting current medications and coexisting conditions is essential in providing the
overall medical condition of the patient, and will inform and impact on the con-
tinuance of care to the patient. A diabetic will require additional consideration due
to the effects of the condition on microcirculation. Additionally, monitoring of
blood glucose levels and dietary considerations must be made if the patient requires
admission into a health facility or if extended pre-hospital care is required.
Treatment given and medications administered

Details of any advice given, treatment applied or medications administered should
also be detailed in the health record, including the time of administration, the
amounts in weight and volume, the route of administration and the authority for
the administration.14 If not already obvious (i.e., in some private practices where a
number of loose sheets may be in use for one patient), the identity of the individual
must be clearly documented on each individual page. This provides a clear record
of what was provided to the patient for future reference.
Other considerations
In addition, paramedics must ensure their documentation is objective, presented
fairly, is completely factual and is without influence from emotional or personal
prejudices. It should be accurate, where due care has been applied to record all of
the relevant facts based on what was observed, with no doubt, speculation, assump-
tion or hearsay used in the record. Records must be concise, authentic and timely,
293
made at the time of the incident or event, and must contain only accurate and real
timelines.14 Records must be legible and easily read by those who need to read them,
so no misunderstandings or incorrect assumptions can be made based on poorly
written or constructed records. A record should only contain recognised symbols,
abbreviations and shorthand.14 Misinterpretation and errors may occur as a result
of using poor or not universally recognised abbreviations.
Correction of errors
Case 12.5 is an example of a not-so-common but plausible mistake that a paramedic
may encounter in their documentation. We explore the correct way to deal with
this type of error and the rationale for this action.
Should Barry go back and scribble out the error? How should the paramedic deal
with the issue? How should it be corrected? We will explore the correct manner of
dealing with this type of error and others in the following text.
In documentation there are a number of errors that commonly occur, and these
are easily dealt with if a few basic principles are applied. It is important to note that
mistakes happen and that everyone makes them, so being clear and open about the
mistake is best practice. Hiding errors (or scribbling them out or using corrective
fluid to change them) only adds complexity to a simple problem, as well as intro-
ducing doubt as to what was written underneath, and opens speculation as to what
is being covered up. Clarity and open corrections are easier to explain.
In the event of writing an incorrect word, figure or statement while making notes,
the best form of correcting the mistake is to put a line through the error – do not
delete, obliterate, obscure or completely block out or use correction fluid or tape.14
Providing an explanation or notation ‘written in error’ or similar14 in the notes and
signing, dating and noting the time on the record before continuing on with the
correct information is the best and most transparent way of correcting an error (see
Figure 12.2). This method identifies that the crossed out section is deliberately
crossed out and provides details of why it was crossed out, the identity of who
corrected it and when it was corrected.
Case 12.5
When terminology matters
Paramedic Barry Smith completes a health care record following a case. The case
involved a semi-conscious traumatic head-injured patient with a difficult airway.
After off-loading the patient, Barry is replenishing the medications kit at the
station at the end of the shift and notices an error where the medication
‘morphine’ was written instead of ‘metoclopramide’. Barry has already lodged the
PHCR as part of the hospital’s records. It appears from the written record that
paramedic Smith administered 10 mg morphine IV to a patient, when in practice
he actually administered metoclopramide.
294
Figure 12.2 Correcting documentation
If the correction is brought into question at a later time, the document is easily
analysed and what was written in error can be identified, removing any doubt or
speculation that what was changed was anything other than a genuine mistake. In
the case of carbonised hand written paramedic records, the corrections will be
transferred to all copies by the carbonated paper, so copies left at the health facility
at handover will corroborate the original documents held by the paramedic service,
further validating that the corrections were made at the time of the incident. With
electronic paramedic notes, corrections made during the creation of the document
will of course be made in the text, up until the record is printed or electronically
transferred to the receiving facility at the handover of the patient.
In the event of an error being identified much later, such as in the case of Barry
mentioned in Case 12.5, the most appropriate action is to make an addendum to
the record by whatever method is possible without changing the original record.14
Changing the original document after it was written would diminish its value as a
contemporaneous note. As most records are copied or shared with the receiving
health facility, any changes to only one copy would also seriously compromise the
reliability of the document as a form of evidence. An element of doubt would be
introduced as to the validity of the document as a true record of events, and any-
thing on it would then be brought into question. The creation of an addendum or
subsequent record provides two clear records, with both individual records standing
alone without being tampered with – one that was made at the time and a second
that was made when new information came to light. The new record requires cross-
referencing information to the older one, with dates, times, signatures and reasons
for changes to ensure that it is linked appropriately. Depending on the systems of
record keeping in use at the paramedic service, and the method of storage, this may
be in hard copy or electronic form.
In Case 12.5 at the beginning of this section, where Barry makes an error and
the record has already been submitted, the first action is to clarify the correct infor-
mation verbally with the receiving facility. This correction of the account would be
recorded by the facility in their health care records. A correct record must also be
lodged within the record system of the paramedic service and, depending on the
type of system used, this may be on a subsequent record, in an electronic system
or some other method of recording and should be clearly cross-referenced to allow
someone reading either record to be made aware of the other.
Conclusion
Patient health care records are an important part of the patient care continuum.
They are used to record all aspects of a patient’s health care and are also used as a
tool to transfer important information from one provider to another. In the case of
295
paramedics, the PHCR is used to collect, collate and record all aspects of the patient
interaction for further use by receiving clinicians. The information is also sometimes
used for other statistical, medical and administrative purposes. The record is an
important record of fact and the information recorded must be objective, concise
and detailed. Any errors made must be dealt with appropriately so as not to reduce
the integrity of the document. The document must be stored and dealt with appro-
priately to maintain the privacy of the individual. Only authorised persons may
access the record and its information can only be used for the purpose for which it
was collected.
Review questions
1 What is a health care record and what are the key characteristics of a good
health care record?
2 Who owns your health care record, and under what circumstances can other
people access your record?
3 What are the correct ways to deal with mistakes and errors on a written
health care record, and why?
4 What jurisdiction do you currently work in (or, if you are a student, imagine
you are working in your local service) and what legislation does a health
care record completed by you need to comply with?
5 Does your organisation have a policy or procedure on how to deal with a
patient or other person asking for a copy of the record you have just com-
pleted? Investigate and consider what you would advise and where you
would direct them if you were asked for a copy.
296
Appendix 12.1
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Endnotes
1 VACIS website. Online. Available: http://www.vacis.com.au/About-VACIS/VACIS-
Collaboration.html (accessed 10 September 2011).
2 Ambulance Service of NSW Capital Works website. Online. Available: http://
www.ambulance.nsw.gov.au/Our-performance/Capital-Works.html (accessed 10
September 2011).
3 Ambulance Service of NSW About Us website. Online. Available: http://
www.ambulance.nsw.gov.au/about-us.html (accessed 10 September 2011).
4 Office of the Australian Information Commissioner. Who owns the records? Online.
Available: http://www.privacy.gov.au/faq/health/q34 (accessed 10 September 2011).
5 Office of the Australian Information Commissioner. Information Privacy Principles.
The Privacy Act 1988 (Cth) Schedule 3 (private), Section 14 (public). Online.
Available: http://www.privacy.gov.au (accessed 20 July 2011).
6 Office of the Australian Information Commissioner. Guidelines on Privacy in the
Private Health Sector. Online. Available: http://www.privacy.gov.au/publications/
hg_01.html (accessed 20 July 2011).
7 Health Information Standards Organisation (2005) Health Information Strategy for
New Zealand. Online. Available: http://www.health.govt.nz/publications/ (accessed
10 September 2011).
8 Staunton, P and Chiarella, M (2008) Nursing and the Law, 6th edn. Sydney:
Elsevier.
9 Office of the Australian Information Commissioner NPP6. Online. Available: http://
www.privacy.gov.au/materials/types/infosheets/view/6583#f (accessed 10 September
2011).
10 Stevens, R (2011) Cole’s medical practice in New Zealand. Online. Available: http://
www.mcnz.org.nz/portals/0/publications/coles/011%20-%20george.pdf (accessed 10
September 2011).
11 Office of the Australian Information Commissioner NPP2. Online. Available: http://
www.privacy.gov.au/materials/types/infosheets/view/6583#npp2 (accessed 10
September 2011).
12 The Council of Ambulance Authorities. Online. Available: http://www.caa.net.au/
(accessed 10 September 2011).
13 Lithgow City Council v Jackson [2009] HCATRans 184.
14 AS/NZS 2828. Paper-based Health Care Records. Online. Available: http://
infostore.saiglobal.com/store/results2.aspx?searchType=simple&publisher=AS&keywor
d=HE-025&gPublisher=AS (accessed 8 June 2012).
298
Chapter 13
The use of drugs in pre-hospital care
Ruth Townsend
Learning objectives
After completing this chapter you will:
• Have been introduced to the laws that govern the use of drugs in Australia and
why they exist
• Have an understanding of drug schedules and how they apply to paramedic
practice
• Know how and why drugs should be stored and recorded
• Know how paramedics are authorised to administer drugs and which drugs
they are authorised to administer
• Have a broader understanding of the key issues affecting paramedics and
drugs including self-prescribing and medication administration errors
opiate. Because it is New Year’s Eve, emergency services are stretched and
There are a number of issues to be concerned about and be aware of with regard
to paramedic practice and the regulation of drugs. This chapter will aim to
introduce you to the main areas of the law that are required to be known and
understood. This will assist paramedics to provide safe care to their patients, to
avoid legal liability with regard to the administration of drugs that may harm a
patient and to comply with the stringent laws that apply to drug storage, recording
and administration.
299
Introduction
All paramedics administer, or at least come into contact with, medication as an
inherent part of their role. Whether transporting a patient from home to hospital
or back again, part of the role of the paramedic is to ensure that there is a continu-
ity of care with respect to the medications that have been prescribed for and/or
administered to the patient. In the pre-hospital care setting this information can
contribute to the paramedic forming a holistic view of what might be going on
with the patient and certainly assists with collecting a medical history about the
patient. Further to this, it assists paramedics to make informed decisions about the
administration of drugs and what the likely impact of drug administration may be
on the patient.
In addition, there are tight legislative controls around medicines in all states and
territories and the ways in which they are used. Only certain professionals are legally
allowed to prescribe drugs, and distributing medications without legal justification
is a criminal offence. This chapter will allow paramedics to understand the rules
regarding the storage, recording, carrying and administration of medication in
paramedic practice.
Regarding the nomenclature used in this chapter, many ambulance services refer
to the drugs they administer as ‘medicines’, whereas the term ‘drugs’ commonly
refers to street drugs. For the purposes of this chapter, medicines will be referred to
as drugs to remain consistent with the legislation.
The governance of drugs

There are laws regarding the supply and use of medications at state and common-
wealth level in Australia. It is the responsibility of each individual health practitioner
to know, understand and comply with these laws. The use of drugs is governed by
a national classification scheme. Drugs are classified according to the Standard for
the Uniform Scheduling of Drugs and Poisons (SUSDP) published by the National
Drugs and Poisons Schedule Committee established under the Therapeutic Goods
Act 1989 (Cth). The Poisons Standard is a commonwealth instrument that is
designed to promote uniform scheduling of substances and uniform labeling and
packaging requirements throughout Australia.
What are the ‘schedules’ of drugs?

Poisons are classified according to the schedules in which they are included. Table
13.1 provides a general description of the schedules. For the legal definitions,
however, it is necessary to check with each relevant state or territory authority.
The scheduled drugs that paramedics most commonly encounter are: schedule 2
or 3, over-the-counter medications (e.g. paracetamol or ibuprofen); schedule 4,
prescription only medications (e.g. midazolam); schedule 8, controlled drugs (e.g.
morphine); and schedule 7, some farm chemicals (e.g. organophosphates).
Who may possess and supply certain drugs?

The term ‘supply’ in the context of drugs has a specific meaning in law. It effectively
means that a person who is licensed to do so may legally make a drug available to
another person. The licensing of a person to supply obviously imposes restrictions
300
13 The use of drugs in pre-hospital care
Table 13.1 General description of the Poison Schedules

Schedule 1 There are no longer any schedule 1 poisons.
Schedule 2 Pharmacy Medicine – Substances, the safe use of which may require advice
from a pharmacist and which should be available from a pharmacy or, where a
pharmacy service is not available, from a licensed person.
Schedule 3 Pharmacist Only Medicine – Substances, the safe use of which requires
professional advice but which should be available to the public from a pharmacist
without a prescription.
Schedule 4 Prescription Only Medicine, or Prescription Animal Remedy – Substances,
the use or supply of which should be by or on the order of persons permitted
by state or territory legislation to prescribe and should be available from a
pharmacist on prescription.
Schedule 5 Caution – Substances with a low potential for causing harm, the extent of which
can be reduced through the use of appropriate packaging with simple warnings
and safety directions on the label.
Schedule 6 Poison – Substances with a moderate potential for causing harm, the extent
of which can be reduced through the use of distinctive packaging with strong
warnings and safety directions on the label.
Schedule 7 Dangerous Poison – Substances with a high potential for causing harm at low
exposure and which require special precautions during manufacture, handling
or use. These poisons should be available only to specialised or authorised
users who have the skills necessary to handle them safely. Special regulations
restricting their availability, possession, storage or use may apply.
Schedule 8 Controlled Drug – Substances which should be available for use but require
restriction of manufacture, supply, distribution, possession and use to reduce
abuse, misuse and physical or psychological dependence.
Schedule 9 Prohibited Substance – Substances which may be abused or misused, the
manufacture, possession, sale or use of which should be prohibited by law except
when required for medical or scientific research, or for analytical, teaching or
training purposes with approval of Commonwealth and/or state or territory health
authorities.1
on the availability of drugs, and that includes restrictions on the amount of a drug
that may be available to supply. In turn, there are restrictions on who may possess
drugs. In legal terms, ‘possess’ means the physical or manual control of a drug. For
example, under the Poisons Regulation 2008 (Tas), an ambulance officer is legally
authorised to have restricted drugs or narcotics in their possession ‘for the purposes
of his or her profession or employment’. In New South Wales the Poisons and Thera-
peutic Goods Regulation 2008 authorises persons who are employed in the Ambu-
lance Service of NSW as an ambulance officer or as an air ambulance flight nurse
to possess and supply schedule 8 drugs (drugs of addiction). In Victoria, an opera-
tional staff member within the meaning of the Ambulance Services Act 1986 is
authorised to use those Schedule 4 poisons or Schedule 8 poisons listed in the health
301
Table 13.2 Legislation on possession and supply of drugs

State/Territory Act
ACT Drugs of Dependence Act 1989; Drugs of Dependence Regulation 2005;
Medicines, Poisons and Therapeutic Goods Regulation 2008 Schedule 1 Part 1.1
NSW Poisons and Therapeutic Goods Act 1966; Poisons and Therapeutic Goods
Regulation 2002 cl 101
NT Poisons and Dangerous Drugs Act 1983 s43; Poisons and Dangerous Drugs
Regulations 2004
Qld Health (Drugs and Poisons) Regulations 1996 s66
SA Controlled Substances Act 1984; Controlled Substances (Poisons) Regulations
1996; Controlled Substances (Prohibited Substances) Regulations 2000; Drugs
Act 1908
Tas Poisons Regulations 2008 s9(d)
Vic Drugs, Poisons and Controlled Substances Act 1981; Drugs, Poisons and
Controlled Substances Regulations 1995 Column 1, Column 2, Part 2 10
WA Poisons Act 1964; Poisons Regulations 1965 s40, s42
services permit held by that ambulance service. In South Australia, the penalties for
the unauthorised prescribing or administering of a drug are heavy with a fine of
$10,000 or a custodial sentence of 2 years. In Western Australia, a person is autho-
rised to possess schedule 4 and schedule 8 drugs with the permission of the chief
executive officer of the Health Service. Table 13.2 outlines the laws with respect to
the possession and supply of drugs that are relevant for paramedics.
The Health (Drugs and Poisons) Regulation 1996 (Qld) states that ambulance
officers are authorised to obtain, possess or administer the drugs benztropine,
frusemide, haloperidol, hydrocortisone, metoclopramide, promethazine and the
others listed in a clinical protocol approved by the Queensland Ambulance Service
and listed in the appendix to the regulation (see Table 13.3).2
However, the Regulation then sets out some more specific criteria in s66.
66 Queensland Ambulance Service3

1) However, an ambulance officer who is a paramedic 3 (ECP) may administer
a controlled drug to a person only if the officer
a) is working in an ECP area; and
b) is acting on a doctor’s oral or written instruction to administer the drug
to a person.
2) An ambulance officer who is undergoing a certified course of training, upon
the successful completion of which the officer would be authorised to obtain,
possess or administer a controlled drug mentioned in appendix 2A, part 1,
column 1, is authorised to administer the controlled drug to a person under
the supervision of someone who
a) has completed the training; and
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Table 13.3 Drugs authorised under Queensland legislation for Queensland paramedics
Column 1 Column 2
1AA atropine paramedic 3 (ECP), paramedic 4
1AAA amiodarone paramedic 4
1 benztropine paramedic 3 (ECP), paramedic 4
2 box jellyfish antivenom paramedics 1, 2 and 3, paramedic 3 (ECP), paramedic 4
2A ceftriaxone paramedic 3, paramedic 4
2AA clopidogrel paramedic 4
2B enoxaparin paramedic 4
3 frusemide paramedic 3 (ECP), paramedic 4
4 haloperidol paramedic 3 (ECP), paramedic 4
4A heparin paramedics 3 and 4
5 hydrocortisone paramedic 3 (ECP), paramedic 4
6 lignocaine paramedic 4
7 methoxyflurane paramedics 1, 2 and 3, paramedic 3 (ECP), paramedic 4
8 metoclopramide paramedic 3, paramedic 3 (ECP), paramedic 4
9 midazolam paramedic 3, paramedic 3 (ECP), paramedic 4
10 naloxone paramedic 3, paramedic 3 (ECP), paramedic 4
11 nitrous oxide paramedics 1, 2 and 3, paramedic 3 (ECP), paramedic 4
12 promethazine paramedic 3 (ECP), paramedic 4
12A reteplase paramedic 4
13 salbutamol paramedics 1, 2 and 3, paramedic 3 (ECP), paramedic 4
14 tenecteplase paramedic 4
b) is
i) acting under a clinical practice protocol approved by the Queensland
Ambulance Service; and
ii) working in an ECP area and acting on a doctor’s oral or written instruc-
tion if required by subsection (2).
3) To the extent necessary to perform ambulance duties for the Queensland
Ambulance Service, an isolated practice area paramedic at an isolated practice
area (paramedics) is authorised to
a) obtain a controlled drug; or
b) possess a controlled drug at a place in the isolated practice area (paramed-
ics); or
c) administer or supply a controlled drug to a person
i) on the oral or written instruction of a doctor, nurse practitioner or
physician’s assistant; or
ii) under a drug therapy protocol.
303
In addition to the possession and supply of drugs, there are laws regarding the
storage and recording of restricted drugs.
Storage and recording of drugs

There are strict regulations regarding the way in which some drugs must be stored,
in particular schedule 8 drugs. They are generally required to be kept in a locked
place that disallows access by those unapproved to access, namely, the public.
However, approval can be given by the appropriate state or territory authority for
schedule 8 drugs to be kept in first aid kits or paramedic kits.
All drugs used by an organisation should be accounted for; however, there are
specific legislative requirements for the recording of some drugs on a register.4 For
example, drugs of addiction are required under the Poisons and Therapeutic Goods
Regulation 2008 (NSW) s111 to be kept in a register:
111 Drug registers to be kept
1) A person who has possession of drugs of addiction at any place must keep a
separate register (a “drug register”) at that place.
2) A drug register is to be in the form of a book:
a) that contains consecutively numbered pages, and
b) that is so bound that the pages cannot be removed or replaced without
trace, and
c) that contains provision on each page for the inclusion of the particulars
required to be entered in the book.
3) Separate pages of the register must be used for each drug of addiction, and
for each form and strength of the drug.
4) The Director-General may from time to time approve the keeping of a drug
register in any other form.
Registers are audited and any discrepancies must be accounted for.
There are some aspects of drug registration that are more difficult to manage in
the pre-hospital care environment than the hospital. However, some jurisdictions
legislate for5 and all service procedures have protocols outlining that the administra-
tion of restricted drugs to patients must be witnessed by another person other than
the person administering the drug. This is sometimes difficult if administration is
required en route and the second officer is driving and unable to witness adminis-
tration. There is also the issue of substitution where the prescribed drug is substi-
tuted by another fluid so that an officer can self-administer the restricted substance.
Consider Case 13.1.
What are the issues to consider with ‘drug substitution’?

There are several areas to be concerned about with regard to the substitution of
drugs with water or other fluid. They include the fact that it is a criminal offence
to substitute, which constitutes theft and unauthorised possession and administra-
tion of a restricted substance. In addition, there is a risk to the public that they do
not get the pain relief they require, that they may be at risk of contamination and
harm from a potentially hazardous unknown substance and that they may be treated
by a paramedic who is under the influence of drugs while administering care.6
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Case 13.1
The drug substitute
You commence work at a new ambulance station and notice the station is lax
with its drug security procedures. You hear a couple of officers talking about
‘drug substitution’. You ask what that means and they explain that some
medications, like the pain reliever fentanyl, are tampered with and ‘substituted
with other fluids’.
What happens if I don’t use all of the schedule 8 drug?

If only part of an ampoule of the drug is used, for example, if pethidine comes in
100-mg ampoules but the patient only requires 75 mg, the remaining 25 mg must
be discarded and recorded as having been discarded in the register. The recording
of this data is necessary so that there is a mechanism available for checking that
drugs are being administered in accordance with legislative intentions.
What happens if I notice a discrepancy?

If a drug of addiction is lost in some way, for example, has been misplaced or incor-
rectly drawn up or the like, a record must be made of this loss. In New South Wales,
there is a statutory requirement that the Director General of Health be notified
immediately if a drug of addiction is stolen or lost.7 This requirement to notify
police and the health department should be set out in each respective ambulance
service’s procedures manual. All drug inventory is subject to auditing, and this is
why it is necessary to keep accurate records of drug use. There have been some
instances where the use and access to drugs has been examined by external authori-
ties. For example, in New South Wales, there was an investigation undertaken by
police with regard to allegations of theft of drugs from the Ambulance Service of
NSW by paramedic employees.6
What if my patient is drug dependent?

It is not infrequent for an ambulance to be called to a patient who is suffering
from a drug addiction and is seeking easy access to a restricted drug. The paramedic
should perform a full patient assessment and never dismiss the complaint of a
patient merely by virtue of the fact that the patient has an addiction. However,
there are laws that prohibit the administration, prescription, selling or supplying
of restricted drugs to people purely for the purposes of supporting their drug
dependency.
Prescribing
The ‘prescription’ of a drug is the authorisation by an authorised person to another
to be supplied a restricted drug. Schedule 4 and schedule 8 drugs require a prescrip-
tion and are consequently referred to as ‘restricted drugs’. In no state or territory
305
are paramedics authorised to prescribe medications. There are specific prohibitions

against the prescription of schedule 8 drugs by anyone other than a doctor, nurse
practitioner, veterinarian or dentist in some jurisdictions. For example, the Victo-
rian Drugs, Poisons and Controlled Substances Regulation 2006 section 25 says:
Persons authorised to write prescriptions
1) A person other than a registered medical practitioner, veterinary practitioner,
dentist or nurse practitioner must not write a prescription for a Schedule
8 poison.
However, paramedics are not required to prescribe drugs, but rather they are
required to administer them.
Medication errors
There is a large body of literature on the ways to manage, and the reason for man-
aging, the adverse events that arise as a result of human error in the delivery of
health care. Medication errors by health practitioners contribute a significant per-
centage to those mistakes that result in harm to the patient.8 A medication error is
defined as:
… any preventable event that may cause or lead to inappropriate medication use or
patient harm while the medication is in the control of the healthcare professional,
patient, or consumer. Such events may be related to professional practice, health care
products, procedures, and systems, including prescribing; order communication;
product labeling, packaging, and nomenclature; compounding; dispensing; distribu-
tion; administration; education; monitoring; and use.9
A study conducted by Vilke et al found that 9% of paramedic respondents admit-

ted to making a medication error in the preceding 12 months.10 Knowledge of
adverse events in health care has led to a redesign of the health care system to allow
for fewer mistakes to be made but also to encourage practitioners to report errors.
The reporting of errors is important, not only so that patients can be made aware
of the potential harms that may have been caused as a result of the error and seek
to have those addressed, but also because it allows for the identification of systems
failures. This, in turn, allows for a redesign of the system in which policies, training,
the environment and even the equipment may be altered to ensure staff are working
in a system that makes it more difficult for them to make mistakes. Lucian Leape11
and others argue that there are a number of factors that contribute to errors being
made, including: working in environments with poor lighting that makes it difficult
to see the medications that are being administered; poor protocols that do not
reflect best practice – for example, adrenaline treatment for anaphylaxis is best
administered via an intramuscular injection rather than intravenously12; poor
equipment – for example, an inappropriately sized syringe for the drawing up and
administration of insulin; poor training that does not provide paramedics with suf-
ficient information to make good clinical decisions – for example, poor medication
calculation skills.13 Leape also argues that another mechanism for limiting medica-
tion error is to involve the patient in the process wherever possible.14 This is
discussed in more detail later on in this chapter.
306
Safety and medication administration

To maximise patient safety and minimise drug administration errors, there are a
number of elements that must be addressed prior to the administration of a drug.
These include gaining the patient’s consent for the drug administration (see the
section ‘Consent’ in Chapter 6, ‘Consent and refusal of treatment’). There are many
occasions where consent is not able to be gained because the patient is unable to
give it, and treatment is required urgently to prevent further harm or to save the
patient’s life. In the case of an emergency where the patient is not competent to
consent and there is no guardian, the drug may be administered. However, where
the patient is competent or there is a guardian present, consent must be sought.
This also involves education and informing the patient about the proposed course
of treatment and the associated benefits and risks of undertaking that treatment.
This requires the paramedic to have a firm knowledge of the range of drugs that
they are authorised to administer and the necessary skills to impart this information
to the patient so that the patient understands it. This process satisfies the legal and
ethical component of autonomy and informed consent, but it also importantly acts
as an additional layer of safety for the patient and the practitioner. For example,
consider Case 13.2.
In this case, the decision by the paramedic to include the patient in the discus-
sion about treatment allowed the paramedic to make a ‘safe’ and informed decision
about treatment.
The five rights of drug administration

Further to involving the patient in a discussion about treatment, you should also
consider the five rights of drug administration, how you will assess, evaluate and
Case 13.2
The safe paramedic
A paramedic arrives on scene to find a 50-year-old male patient having severe
chest pains. The paramedic determines that they should use a glyceryl trinitrate
(GTN) spray, which will lower the patient’s blood pressure and reduce the strain
on the heart.
Before administering this drug, the paramedic realises that she should ask the
patient if he has taken any erectile dysfunction drugs (such as Viagra) in the
previous 24 hours. She explains to him, in a measured and professional manner,
that it is important for him to disclose this, as the drug she would recommend as
treatment for his chest pain may interact with the erectile drug and cause an
adverse reaction (a dangerous drop in blood pressure) that could exacerbate
his dilemma.
The patient responded that he had not had Viagra, and so the paramedic safely
administered the GTN.
307
document the effects of the drug, and how you would respond were you to give a
drug in error or the administration of the drug resulted in an adverse effect.
• Check that you are giving:
- the right patient,
- the right medication, in
- the right dose, at
- the right time, via
- the right route.
• Check that the patient has no allergies to the drug to be administered.
• Consider what an adverse effect of this drug might result in, so that you
are prepared for it; for example, an overdose of a narcotic will require
the quick resuscitation of the patient with naloxone and respiratory
support.15
Each ambulance service will have its own protocols with regard to the safe admin-
istration of medication to a patient and should incorporate risk management sug-
gestions to assist staff to avoid making errors. For example, the Ambulance Service
of NSW provides a list of precautions (see Table 13.4). They also identify the occu-
pational health and safety issues that should be considered to ensure that staff also
remain safe during medication administration.
Assessment and documentation of drug administration

Always ensure documentation of administration including drug given, dose, route,
time given and patient response including any adverse drug reactions. Always ensure
that you have assessed and evaluated the effectiveness of medication administration,
particularly medicines that affect respiratory rate, heart rate, blood pressure, level
of consciousness and blood glucose. The importance of such checks can be illus-
trated by Case 13.3.
Table 13.4 Precautions and OHS issues16

Precautions Name the medication you are about to give and ask whether they
have had it previously and did they have any reactions
Ensure aseptic technique is used at all times
Swab sites, vials and bungs prior to administration
Use ampoule opener with all glass ampoules
Draw up medication with filtered drawing up needle
Apply an approved syringe cap to cover syringe hub between doses to
maintain asepsis
Occupational health Wearing of approved appropriate personal protective equipment
and safety issues during procedure
Do not re-sheath needles
Dispose of sharps into approved sharps containers immediately
Compliance to infection control procedures
Compliance to relevant OH&S and manual handling techniques
308
Case 13.3
The adverse event
A paramedic is called to a patient suffering from an anaphylactic reaction. He
administers adrenaline as per his protocol. The protocol states that the adrenaline
can be given in incremental doses. There is no requirement to check the patient’s
blood pressure in between doses. The patient’s blood pressure rises rapidly and
results in the patient suffering an intracerebral bleed that results in severe
disability.
In this case, a failure to evaluate the effectiveness of the drug in between doses
has led to harm to the patient. The paramedic followed the protocol and could,
therefore, not be found negligent in their treatment of the patient. However, it
could be argued that a foreseeable harm was suffered by the patient because adrena-
line is known to cause a rapid rise in blood pressure. If the paramedic had assessed
the effectiveness of the dose by taking blood pressure measurements in between
doses, the paramedic may have been alerted to the problem prior to it causing
significant damage.
What happens if I give a drug in error?

If a medication administration error occurs, the paramedic should at least undertake
the following:
• Immediately discontinue the medication.
• Treat symptoms of adverse drug reaction (ADR) per protocol.
• Assess for any ADR to the medication including changes in level of
consciousness, allergic reaction.
• Ascertain whether the patient has any known allergy to the medication
given in error.
• Notify the doctor of the medication error, along with any ADR to the
medication.
• Apologise to the patient.
• Document the reaction and response.
Conclusion
Knowledge and understanding of the law with respect to the area of medications is
necessary for the paramedic to ensure that they abide by the rules. The reason for
abiding by the rules with regard to drug possession, supply, storage, recording and
administration goes beyond ensuring that practitioners themselves are safe from
legal action. The reason for abiding by the rules is to ensure that the patient remains
safe. The high rates of harm caused to patients as a result of medication administra-
tion errors emphasise the need to consider the ethical maxim, do no harm, and how
it applies in this area.
309
Review questions
1 What are the most common schedule 4 and schedule 8 drugs used by
paramedics?
2 What are the rules regarding the recording of restricted drugs?
3 Why are the possession and supply of drugs regulated?
4 What is a medication error?
5 What are the elements that should be considered prior to administering a
drug to the patient? (This goes beyond the five rights.)
6 What should you do if you realise that a medication error has been made?
Endnotes
1 Poisons Standard 2010 (Cth) Online. Available: http://www.comlaw.gov.au/Details/
F2011L01612 (accessed 25 September 2011).
2 Health (Drugs and Poisons) Regulations 1996 (Qld) Appendix 2A.
3 Health (Drugs and Poisons) Regulations 1996 (Qld).
4 See also Medicines, Poisons and Therapeutic Goods Regulation 2008 (ACT); Poisons and
Dangerous Drugs Act (NT); Health (Drugs and Poisons) Regulations 1996 (Qld);
Controlled Substances (Poisons) Regulations 1995 (SA); Poisons Regulations 2008 (Tas);
Drugs, Poisons and Controlled Substances Regulations 2006 (Vic); Poisons Regulations
1965 (WA).
5 Medicines, Poisons and Therapeutic Goods Regulation 2008 (ACT) reg 351; Poisons and
Dangerous Drugs Act (NT), s41; Controlled substances (Poisons) Regulations 1995 (SA)
reg 31.
6 Wallace, N (2009) Ambos accused of stealing drugs. Sydney Morning Herald. 12
October 2009; Wallace, N (2010) Ambos slammed over drugs. Sydney Morning
Herald. 23 January 2010.
7 Poisons and Therapeutic Goods Regulation 2008 reg 124.
8 Roughead, L and Semple, S (2009) Medication safety in acute care in Australia:
where are we now? Part 1: a review of the extent and causes of medication problems
2002–2008. Australia and New Zealand Health Policy 6(18).
9 The National Coordinating Council for Medication Error Reporting and Prevention
(2005) The First Ten Years “Defining the Problem and Developing Solutions”, NCC
MERP, United States. Online. Available: http://www.nccmerp.org/pdf/
reportFinal2005-11-29.pdf cited in National Prescribing Service Limited ‘Medication
safety in the community. A review of the literature.’ Department of Health and
Aging. June 2009 viewed December 2011 http://www.nps.org.au/__data/assets/
pdf_file/0008/71675/09060902_Meds_safety_June_2009.pdf (accessed 13 December
2011).
10 Vilke, GM, Tornabene, SV, Stepanski, B et al. (2006) Paramedic self-reported
medication errors. Prehospital Emergency Care 10, pp. 457–462.
11 Leape, LL, Brennan, TA, Laird, N et al. (1991) The nature of adverse events in
hospitalized patients: results of the Harvard Medical Practice Study II. New England
Journal of Medicine 324, pp. 377–384. See also Leape, LL and Berwick, DM (2005)
Five years after ‘To Err Is Human’: what have we learned? Journal of the American
Medical Association 293, pp. 2384–2390.
310
12 Simon, GA, Brown, R, Mullins, J and Gold, MS (2006) Anaphylaxis diagnosis and
treatment. Medical Journal of Australia 185(5), pp. 283–289; Pumphrey, RS (2000)
Lessons for management of anaphylaxis from a study of fatal reactions. Clinical and
Experimental Allergy 30(8), pp. 1144–1150;
13 See also Crossman, M (2009) Technical and environmental impact on medication
error in paramedic practice: a review of causes, consequences and strategies for
prevention. Journal of Emergency Primary Health Care 7(3).
14 See also National Prescribing Service Limited (2009) Medication safety in the
community. A review of the literature. Department of Health and Ageing,
June 2009. Online. Available: http://www.nps.org.au/__data/assets/pdf_
file/0008/71675/09060902_Meds_safety_June_2009.pdf (accessed 13 December
2011).
15 Myers, E (2006) Nurse’s Clinical Guide, 2nd edn. Philadelphia: FA Davis Company.
16 Ambulance Service of NSW (April 2011) Medications and Fluids Pre Administration
Check. Sydney: Australia.
311
Chapter 14
Paramedic practice in New Zealand –
legal issues and current debates
Kate Diesfeld
Learning objectives
• Describe New Zealand’s medico–legal framework
• Explain the legal impact of the New Zealand accident compensation scheme
for paramedics
• Discuss New Zealand’s Code of Health and Disability Services Consumers’
Rights
• Explain the legal impact of a paramedic’s non-registered status in New Zealand
for patients and paramedics
• Discuss the current debates regarding registration of New Zealand’s
paramedics
Definitions
Accident Compensation Act 2001 Legislation defining accident compensation
system and treatment injury.
Code of Health and Disability Services Consumers’ Rights Code defining
consumers’ 10 rights.
Health Practitioners Competence Assurance Act 2003 Legislation governing
registration.
Terminal stages of renal failure
Mrs A, an elderly Maori woman, was in the terminal stages of renal failure. When
her condition deteriorated at home, her daughter phoned the public hospital’s
renal department and was instructed to phone the ambulance. By phone, the
ambulance service attempted to ascertain the patient’s status, but the daughter
was only able to communicate that the patient’s feet were swollen and that her
doctor had instructed the daughter to call an ambulance. When the ambulance
312
14 Paramedic practice in New Zealand – legal issues and current debates
Terminal stages of renal failure continued...
officer entered the house, Mrs A was ‘oozing’ blood and mucus. By the time the
ambulance officer contacted the hospital switchboard, the ambulance had arrived
at the hospital and the officer hung up. The ambulance officer could not recall
where he placed the patient or what he said to the emergency department. He
reported that his standard practice was to hand the patient record form to
emergency department receptionists and wait for them to read and check the
document before he left. In this instance, he told the patient’s daughter that
‘someone will see you shortly’ and he left. Approximately 30 minutes later the
receptionist noticed that the patient appeared unwell. The triage nurse was
unable to obtain a clear history from the patient or her daughter. The patient was
taken to the resuscitation room and died within an hour. The Health Disability
Commissioner issued an opinion that both the New Zealand Ambulance Service
and the public hospital breached the Code of Health and Disability Services
Consumers’ Rights. However, under New Zealand’s novel legal framework, the
case could not progress to a traditional case in medical malpractice. This result
has significant impacts for patients and paramedics.
This chapter provides an overview of New Zealand’s medico–legal framework and
the implications of the registration of paramedics in New Zealand for cases such
as this case.
Introduction
Paramedics in New Zealand face many of the dilemmas encountered by paramedics
abroad. For example, paramedics encounter legal issues surrounding consent,
privacy, criminal law and professional competence. New Zealand has specific legisla-
tion and case law related to all of these topics, but the latter is one of the most
universal and compelling issues that now concerns New Zealand paramedics.
Professional registration is the focus of this chapter because New Zealand’s novel
accident compensation system and the resulting legal framework generate unique
legal issues for New Zealand paramedics. In response to gaps in patient protection,
resulting from the accident compensation system, New Zealand established a code
of rights with corresponding avenues for redress and reformed its legislation to
address the competence of registered health practitioners. However, as a non-
registered occupation, paramedicine is not yet governed by that legislation.
In 2008, the Health Committee initiated an inquiry into the provision of ambu-
lance services at the request of the New Zealand Ambulance Association. The com-
mittee’s chair presented a report, ‘The Inquiry into the Provision of Ambulance
Services in New Zealand’, to the House of Representatives.1
The Association was concerned about public safety because the service coverage
was inadequate and ad hoc, with significant inconsistencies across the sector and
313
regions. Additional factors included single crewing, funding, training and compe-
tence standards. Reportedly, the chair stated that the inquiry revealed that the
nation’s ambulance service was ‘in need of resuscitation’.2 Registration is the
living, breathing legal topic of utmost concern for New Zealand paramedics. As in
Australia’s attempt to professionalise paramedicine, New Zealand is contemplating
registration to improve paramedics’ competence, status, mobility, consistency and
patient safety.
The history of New Zealand paramedics and ambulance services

New Zealanders have enjoyed the benefits of emergency health services since the
first ambulance in 1892.3 In the interim, the occupation has undergone substantial
change and challenges. Al-Shaqsi provides an informative history and overview
of New Zealand’s ambulance services and paramedic practice.4 For example, New
Zealand’s emergency medical services are voluntary and contractual rather than
regulated. In addition, New Zealand’s ambulance services are funded both privately
and publicly.
New Zealand ambulance funding

Private funding is generated from fundraising, trusts, donations and bequests3,
which were 11% of the total annual revenue of St John Ambulance in 2007–08.5
While this is evidence of the community’s strong support, it is a fragile foundation
for pre-hospital care and an inadequate basis for strategic planning and long-term
development.3 According to the Wellington Free Ambulance Annual Report 2010,
the service of this incorporated society costs over $18 million to operate per year.
Approximately 75% of its operational budget is funded by government agencies.
The balance is funded from donations, local authorities, outreach, charitable trusts,
bequests, public appeals and its own resources.
Public funding is provided from contracts between providers and two funders,
the Accident Compensation Commission (ACC) and the Ministry of Health. ACC
covers the funding for all emergency services to injury-related calls (35% of calls)
and the Ministry of Health funds the medical emergency calls (65%).5 Both funders
purchase services under the New Zealand Standards for Ambulance and Paramedical
Services.6 Neither funder monitors these non-mandatory standards. Providers are
only required to show ‘reasonable endeavours’ to comply with the ‘very non-specific’
standards.7 The key performance indicator for funding is response time, but critics
have asserted that performance should be measured according to standards deter-
mined by patients’ outcomes and best clinical practice.7 By way of example, in 2008
a coroner also called for stringent national guidelines after the death of a patient
wrongly assessed as having a virus by paramedics.8 The analysis of quality should
take greater account of patient outcomes, not merely response times. The emphasis
on patients’ safety reflects a primary purpose of, and a justification for the registra-
tion of paramedics under, the Health Practitioners Competence Assurance Act 2003.
A volunteer workforce
Of particular importance is the fact that the majority of New Zealand paramedics
are volunteers. In 2008, St John had 2211 paid staff and 7647 volunteers.5 In that
314
year, this enormous contribution was estimated at $33 million per year.9 New Zea-
land’s reliance on volunteers may account for the relatively low number of informal
and formal complaints against paramedics. Arguably, there are fewer complaints
against paramedics in comparison with other health providers; perhaps those who
use paramedic services rarely complain because the public greatly appreciates the
dedication of volunteers and understands the challenges they face. (However,
Al-Shaqsi7 observed the wider impact of volunteerism, including issues of retention
and high turnover and the potential implications for the quality of service.) Neither
volunteer nor paid paramedics are registered health practitioners in New Zealand.
The impact of that status is of vital concern for paramedics and the people that they
serve because unregulated occupations may have inconsistent and inadequate train-
ing, monitoring and disciplinary processes.
New Zealand’s medico–legal landscape

The provision of health care and paramedic practice in New Zealand are governed
by a wide array of legislation. As elsewhere, New Zealand health providers are legally
required to perform their duties to the standard of reasonable care and skill. ‘At
common law, a health provider may be held liable in the tort of negligence for
failing to exercise reasonable care and skill when death, injury or other damage is
caused to the patient by that failure.’10 However, New Zealand’s unusual health
system incorporates a comprehensive no-fault accident compensation scheme that
is significantly different from the fault-based system that exists in Australia. For a
listing of the legislation and cases relevant to the medico–legal systems in New
Zealand and Australia, see Appendix 14.1. As Skegg11 observed, New Zealand’s
medico–legal system has two distinguishing features: ‘treatment injury’ provisions
under the compensation scheme; and the legislated code of rights for people who
are consumers of health and disability services.
No-fault compensation
Since 1974, New Zealand has implemented a compensation system for victims of
accident and injury that almost entirely bars personal injury litigation, including
medical malpractice.12 As noted by Brazier13, there are benefits and detriments to
malpractice litigation. The merits include potential damage awards for the injured,
which may deter the practitioner and others from further negligence or misconduct.
In addition, tort litigation aims to identify those who are at fault and hold them
accountable. However, one detrimental impact of an adversarial, fault-finding legal
system is that practitioners may resist disclosure of the relevant circumstances
because they ‘are naturally wary of admitting any doubts about their practices’.14
The Australian system has attempted to limit this negative effect by requiring dis-
closure by professionals who cause harmful medical errors without an admission of
liability.15,16 Practitioners have a legal duty to inform so patients have the opportu-
nity to remedy the harm. This approach dissuades practitioners from secreting
errors, expresses that providers do make mistakes and promotes a culture of truth
telling.
Another detrimental result of traditional medical malpractice litigation is the
potential for growth of defensive practices. For example, recent Australian research
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revealed how doctors’ concerns about legal issues impact upon their practices,
particularly for those who have previously experienced a medico–legal matter.17 In
response to a survey, 2999 respondents reported changes in practice due to medico–
legal concerns: 43% of doctors reported that they referred patients more than usual;
55% stated they ordered more tests than usual; and 11% stated that they prescribed
medications more than usual.17 Lawsuits are also financially and emotionally costly
for all parties. Litigation may have damaging effects upon the relationships between
health providers, patients and the public.6
However, while a no-fault system may diminish some of these effects, it is not
without flaws. One concern is that the ‘threat of litigation is removed without the
introduction of stringent measures to ensure accountability’.18 The reality of this
danger was demonstrated by the notorious experiment conducted at the National
Women’s Hospital by a prominent medical academic.
Without gaining his patients’ consent, he withheld standard treatment for patients
with cervical carcinoma in situ, in the belief and hoping it was unnecessary. Some
patients benefitted in consequence, but for others the outcomes were disastrous.19
Subsequently, a Commission of Inquiry was conducted in 1987–88, resulting in
the Cartwright Report.20 Responses to this report influenced New Zealand’s medical
law and ethical protections, including the practice of paramedicine.
New Zealand’s no-fault system does provide cover for treatment injury, while
generally preventing aggrieved persons from pursuing common law damages in civil
proceedings.
Thus, rare claims for exemplary damages and other exceptional situations aside,
patients who have died or suffered physical injury as a result of a health practitioner’s
failure to exercise reasonable care and skill cannot bring a civil claim for negligence
for damages for a practitioner in respect of that injury.21
While there is evidence that some injured persons are dissatisfied with non-
monetary remedies22, the system has endured and the current legislation is the
Accident Compensation Act 2001.
‘Treatment injury’ under the Accident Compensation Act 2001 and paramedics
In New Zealand, patients injured as a result of their medical treatment may make
a claim for compensation under the Accident Compensation Act (the ACA). However,
the provision for treatment injury compensation applies only to injuries suffered
by a person who has sought or received that treatment from a registered health
professional. Section 32 of the ACA states:
Treatment injury means personal injury that is –
a) suffered by a person –
i) seeking treatment from one or more registered health professionals; or
ii) receiving treatment from, or at the direction of, one or more registered
health professionals; or
iii) referred to in subsection (7); and
b) caused by treatment; and
316
c) not a necessary part, or ordinary consequence, of the treatment, taking into

account all the circumstances of the treatment, including –
i) the person’s underlying health condition at the time of the treatment; and
ii) the clinical knowledge at the time of the treatment (emphasis added).
(See Appendix 14.2 for more details.)

Importantly, paramedics are not registered health practitioners. A patient injured
as a result of treatment administered by a paramedic is unable to claim compensa-
tion for that injury under this Act. How would a patient injured by a paramedic’s
negligence claim compensation in New Zealand? The patient’s remedy may lie
within the jurisdiction of the Human Rights Review Tribunal for breach of the Code
of Health and Disability Services Consumers’ Rights (the Code).
Health and Disability Commissioner Act 1994

A significant outcome of the Cartwright Inquiry was the establishment of the
Health and Disability Commissioner (HDC). Pursuant to the Health and Disability
Commissioner Act 1994 (HDCA), the Commissioner promotes and protects the
rights of people who are receiving health or disability services. These protections
are defined as 10 rights within the Code of Health and Disability Services Consumers’
Rights (the Code) (see Appendix 14.3). Any persons who hold themselves out as
providing a health or disability service, whether they are registered or unregistered,
or providing a service for payment or voluntarily, must abide by the Code according
to Clause 4. If they fail to abide by the Code a complaint could be made by the
consumer or other concerned person, investigated, resolved between parties or
referred to the HDC for a determination of whether a breach occurred. However,
the cases heard by the HDC often result in the HDC only requesting that an
apology be made, and few cases have progressed to the independent Director of
Proceedings.23 The Director may refer the case of a serious breach of the Code to
the relevant registration body, disciplinary tribunal or Human Rights Review Tri-
bunal (HRRT). For paramedics, the case cannot progress to a registration body or
disciplinary panel because they do not exist for non-registered occupations. The
HRRT is not a disciplinary body; it is a review body for breaches of human rights
legislation.
Three claims have been made about this regime. First, there is lack of account-
ability under the accident compensation scheme when adverse medical events or
health providers engage in professional misconduct. Secondly, the above regime and
HDC complaints system have been described as ‘cumbersome’ and ‘confusing’
within the Cull Report24, which analysed the processes concerning adverse medical
events. The Cull Report concluded that there was a need for legislative reform to
improve occupational regulation and investigation processes within the health care
context. The reforms resulted in the enactment of the Health Practitioners Compe-
tence Assurance Act 2003 (HPCAA).
Under this Act, and depending on the seriousness of the breach, the case may
proceed to the Director of Proceedings and be referred onward. For registered health
practitioners, this may lead to low level resolution by the registration body or, ulti-
mately, to the Health Practitioners Disciplinary Tribunal (HPDT) for discipline.
317
As described above, a breach of the Code is a breach of human rights in New

Zealand and, therefore, also may be referred to the HRRT. Importantly, disciplinary
penalties from the HPDT do not include compensation to the patient due to the
accident compensation scheme. In contrast, compensation may be awarded by the
HRRT for breach of rights.
As paramedics do not have a registration body or disciplinary tribunal, serious
breaches involving consumers may only proceed to the HRRT. In extraordinary
(and rare) cases the HRRT may award exemplary damages up to $200,000.25
However, the HRRT has not yet awarded damages of this amount for a breach of
consumers’ rights under the Code.
In short, patients harmed as a result of a paramedic’s malpractice or negligence
are unable to bring a claim against them under the Accident Compensation Act
because paramedics are not registered health professionals. However, a complaint
may be filed with the HDC if the paramedic allegedly breaches one or more of the
rights under the Code. If the case proceeds to the HRRT for breach of the Code,
the patient may, in extraordinary circumstances, obtain compensation. In addition,
paramedics may in the ordinary fashion be accountable to their employers and
subject to criminal proceedings, depending on the nature of the breach. However,
paramedics in New Zealand are not currently subject to review by a professional
disciplinary body whereas professionals such as nurses, dentists and osteopaths are.
The core protection for patients treated by paramedics is the Code.
Code of Health and Disability Services’ Consumers Rights

According to section 6 of the HDCA, the purpose of the Act is ‘to promote and
protect the rights of health consumers and, to that end, to facilitate the fair, simple,
speedy and efficient resolution of complaints relating to infringement of those
rights’. The HDC is an independent, statutory ombudsman with authority to
investigate any action of a provider where an action is, or appears to be, a breach
of the Code of Health and Disability Services Consumers’ Rights (the Code). One of
the most far-reaching effects of the HDCA was the creation of the Code, which
has direct application to paramedics.
The Code places obligations upon providers of health and disability services
(providers) and confers rights on people who use health and disability services
(consumers). Duties apply to health professionals, unregistered healthcare provid-
ers (e.g. paramedics) and institutional providers such as hospitals and rest homes.26
The Code addresses rights relating to: respect and privacy; fair treatment; dignity
and independence; appropriate standards; effective communication; information;
choice; consent; support; rights during teaching and research and complaints
procedures.
Importantly, the Commissioner’s jurisdiction is restricted to quality of service
and does not include issues of funding or entitlement to a particular service.23
According to the previous Commissioner, Professor Ron Paterson, the Code and
resulting Commissioner’s opinions have been described as a ‘tool for quality improve-
ment’.26 Although the Commissioner’s decisions are opinions, they are also the
foundation for potential referral to the two tribunals described above. One funda-
mental benefit of the opinions is their preventive potential because paramedics and
318
other providers may find guidance from reviewing and discussing case notes that
illustrate the dilemmas they face.27
Between February 2004 and April 2009, the HDC received 46 complaints about
ambulance services and 25 referred to Right 4, regarding the appropriate standard
of care.28 In the majority of cases, the HDC took no further action. Of the 31
complaints filed between January 2008 and June 2011 regarding ambulance ser-
vices, one was resolved by the HDC, 16 received no further action and 9 were still
open.28
The HDC selectively publishes opinions of educational value and, currently, the
HDC website displays six opinions produced since 1997 that involve complaints
against ambulance officers or ambulance services.29 As in the majority of complaints
across the occupational groups, all of the complaints against ambulance officers
or services referred to Right 4, regarding the right to services of an appropriate
standard. Right 4 establishes that:
1 Every consumer has the right to have services provided with reasonable
care and skill.
2 Every consumer has the right to services provided that comply with legal,
professional, ethical and other relevant standards.
3 Every consumer has the right to services provided in a manner consistent
with his or her needs.
4 Every consumer has the right to have services provided in a manner that
minimises the potential harm to, and optimises the quality of life of,
that consumer.
5 Every consumer has the right to cooperation among providers to ensure
quality and continuity of services.
The following three cases are representative of the six complaints, beginning
with Case 14.1.
Case 14.1
Lifting procedure, air transport and leaving
patient unattended
The complainant in this case reported that an ambulance officer attempted to lift
the complainant’s niece (the consumer) out of a car following an accident, despite
being informed that the consumer was seriously hurt. When the consumer was
lifted by the ambulance officer, the consumer screamed, and the ambulance officer
‘dropped her back on to the seat’. Prior to being lifted by the ambulance officer,
the consumer was able to move her hands and feet. After being moved, she could
not. She is permanently paralysed. She complained that she was not airlifted to
the hospital, although she had a spinal injury, and that she was left unattended by
the ambulance officer for 15 minutes at the hospital.
319
The HDC conducted an investigation and Right 4 was applied. Importantly,

Clause 3 of the Code provides protection for providers based on a ‘reasonableness’
standard, and the following sections applied:
1) A provider is not in breach of the Code if the provider has taken

reasonable actions in the circumstances to give effect to the rights, and
comply with the duties, in this Code.
2) The onus is on the provider to prove that it took reasonable steps.
In the HDC’s opinion, the ambulance officer breached Rights 4(2), 4(3) and
4(4) because she failed to properly consider the option of airlifting the consumer
to hospital. Likewise, the ambulance service as the employer was liable for the
officer’s actions or omissions under section 72(2) of the HDCA and had not pro-
vided evidence that it took the steps reasonably practicable to ensure its employees
were aware of, and complied with, current ambulance service policy. Accordingly,
the ambulance service was in breach of the same rights.
However, there was not a finding of breach regarding the manner in which the
consumer was lifted or that she was left unattended for 15 minutes. These were
deemed to be reasonable given the circumstances.
The HDC recommended that the ambulance officer do the following: apologise
to the consumer for the breach; read the Code and provide an undertaking to the
HDC that she will keep informed of her employer’s policies and provide assurances
that she will abide by them. Similarly, the HDC recommended a range of actions
by the ambulance service. It was directed to apologise to the family. Further, even
though the HDC did not find that there was a breach of the required standard of
care with regard to the patient being left for 15 minutes, it directed the ambulance
service to formulate a nationwide written policy regarding officers’ obligations
to remain with consumers who are being transported by ambulance. The HDC
required evidence to the HDC that all reasonable actions had been taken to ensure
that employees, including volunteer officers, were routinely updated and appropri-
ately trained in current policies. Finally, the ambulance service was directed to
ensure that appropriate hand-over procedures were in place with all hospitals in
New Zealand, including effective transfer of verbal and written information from
officers to hospital staff.
This case demonstrates both the application of the Code to paramedics and the
Commissioner’s decision-making process. It also illuminates the relatively low cost
and less adversarial nature of the HDC’s alternative dispute resolution system in
comparison with other jurisdictions. Importantly, it illustrates the limited remedies
available to a seriously injured consumer under New Zealand’s legal framework and
the HDC’s commitment to establishing systemic preventive measures based on
breaches. Case 14.2 provides another example of the preventive, educative value of
the HDC’s published opinions.
In the opinion of the HDC, the ambulance officer breached Rights 4(2) and
4(5). In assuming the consumer’s condition was psychosomatic, the officer did not
pay adequate attention to other signs and symptoms that the consumer’s partner
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Case 14.2
Toxic shock syndrome
This complaint reported that ambulance staff failed to treat a consumer with the
appropriate standard of care when attending him at his home. In addition, the
staff did not relay information to the hospital that had been reported to them by
the consumer’s partner, instead advising the hospital staff that his condition was
psychosomatic. On the same day, the hospital medical staff failed to appropriately
examine the consumer and diagnose his group A streptococccal toxic shock
syndrome, instead supplying him with painkillers and sending him home in a taxi
still in pain. He died at home later that day.
reported at the time. This interfered with the officer’s ability to assess the consumer
in an objective and professional manner. Consequently, in recording his subjective
judgement, the officer may have contributed to the ‘less than satisfactory treatment’
given by the medical and nursing staff. In addition, the ambulance officer did not
ensure continuity of care during the hand-over to the emergency department staff
because he failed to inform and document the consumer’s hypothermia, low blood
pressure, agitation and confusion. While there was no breach by the ambulance
driver, the ambulance service or the hospital, there was a breach of Right 4 by the
senior house officer.
The HDC recommended that the ambulance officer apologise to the consumer’s
surviving partner. Also, the ambulance officer was directed to refrain from making
and documenting any personal and subjective judgements while assessing patients
in the future. The senior house officer was directed to study the diagnosis and treat-
ment of lower back pain and to approach diagnosis in a systematic manner, elimi-
nating serious systemic illnesses before diagnosing mechanical back pain. She was
also directed to undertake peer review of her note-taking to improve the quality of
clinical notes.
This case demonstrates that the HDC investigates the competence of all the
relevant providers and issues an opinion regarding breaches accordingly. The opin-
ions offer opportunities for paramedics to reflect upon the dilemmas that others
encounter, thereby improving their future practice. Due to the HDC’s limited legal
options, the death of a consumer resulted in relatively lenient directions to each
breaching provider. There is no recourse for referral to a disciplinary body for para-
medics, even when a death has occurred.
Case 14.3 illustrates a complaint relating to review and assessment of a
consumer.
Although there was disagreement about the actions taken by the ambulance
officer, the first time he visited the consumer’s residence, the officer concluded
that the consumer had suffered an anxiety attack that had resolved. There was no
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Case 14.3
Reflux
In this case, the consumer’s wife complained that an ambulance officer did not
appropriately review and assess the consumer. The 55-year-old consumer woke
with pain in his chest and stomach area. The ambulance officer diagnosed
unrelieved reflux exacerbated by hyperventilation. He reported that he gave the
consumer the option of going to hospital, but the consumer was reluctant.
Therefore, after the officer advised the consumer to try a hot Milo to settle his
stomach and to consult his general practitioner to investigate the cause of his
reflux, the officer left. The consumer’s partner did not recall the discussion
regarding the hospital option. Approximately 10 minutes later the consumer
collapsed. The ambulance returned, the officer commenced CPR and defibrillation,
and the consumer was transferred to the hospital. After being in a coma for 36
hours, the consumer suffered brain damage that resulted in severe impairment.
documentation that transport to hospital was offered and refused. The HDC
formed the opinion that a breach of Right 4(1) occurred because the officer did
not further enquire into the consumer’s condition and did not transport him
to hospital for a full assessment. Likewise, the officer breached Right 4(2) by
failing to fully document details relevant to the appropriate assessment of the
consumer.
The ambulance service avoided a breach for vicarious liability under section 72(2)
of the HDCA because it employed Mr B, who was a trained and experienced
ambulance officer and team leader. The officer completed an advanced life support
course through the service, which provides training on the assessment, diagnosis
and treatment of cardiac patients. In addition, the service provided training on, and
requires staff compliance with, the requirements of the Ambulance Education
Council’s ‘Authorised Patient Care Procedures’. Accordingly, the service took
reasonable steps to ensure its officers assess and respond appropriately.
This opinion illuminates how ambulance services may avoid breaches through
stringent employment standards, routine updating of policies and zealous monitor-
ing of their implementation. Regarding the ambulance officer, the HDC’s sole
recommendation was that the ambulance officer ‘review his practice in light of this
report’, and a copy of the report was sent to the New Zealand Ambulance Board.
Under a disciplinary regime, the HPDT may have issued a harsher penalty, accom-
panied by rehabilitative directives to restore the practitioner to practice, in the
interest of public safety.30 However, currently paramedics do not have a national
disciplinary body.
As noted above, consumers are barred from bringing a civil action in medical
malpractice. Although serious cases of Code breaches may be referred to the
Director of Proceedings and progress to the HRRT, none involving ambulance
322
officers has done so. The cases above illustrate issues of paramedics’ competency
and patients’ safety, issues at the heart of the recent debates regarding the potential
registration of paramedics under the Health Practitioners Competence Assurance
Act 2003.
The registration debate

New Zealand is currently contemplating registration of paramedics under the
Health Practitioners Competence Assurance Act 2003 (HPCAA). If added to the exist-
ing 20 occupations governed by the HPCAA, paramedics would join the ranks of
other professionals such as psychologists and doctors. Paramedics would enjoy the
status, and be subject to the surveillance, experienced by members of those profes-
sions. Given the training and expertise that competent paramedic practice requires,
entry into the community of registered health practitioners and the corresponding
recognition may be long overdue.31
Ambulance New Zealand has applied for registration of ambulance services,
including pre-hospital emergency intervention, medical transportation and the
delivery of primary care in homes and communities in some areas of New Zealand.
The application covers ambulance officers and medics working for the following
providers: St John, Wellington Free, Wairarapa DHB Ambulance Service, New
Zealand Defence Forces and private operators. Currently, staff and volunteers are
categorised by their qualifications as: Basic Life Support (BLS) First Responder;
Basic Life Support (BLS); Intermediate Life Support (ILS); and Advanced Life
Support (ALS). Of the approximately 4000 people working in the sector, approxi-
mately 3000 are volunteers working at the BLS level. The application applies to
health services delivered by paramedics and New Zealand Defence Force medics
who practice at the ILS and ALS levels.
The HPCAA aims to deliver a consistent system for protecting public safety
through standards and monitoring of professional competence. Its purpose is to
‘protect the health and safety of members of the public by providing for mechanisms
to ensure health practitioners are competent and fit to practise their professions’
(section 3.1). The HPCAA explicitly placed public safety at the forefront of pro
fessional regulation. Public safety was also a core concern of the Kedgley Inquiry32
in 2008 regarding the standards, qualifications and potential registration of
paramedics.
The application for registration by Ambulance New Zealand incorporated recent
research that took place during the second half of 2010 amongst ambulance
officers and New Zealand Defence Force medics.33 Of the 1709 ambulance officers
who responded, 57% thought at least some levels of ambulance officers and medics
should be registered under the HPCAA, with 50% agreeing it was in the public
interest.33 Ambulance New Zealand observed:
Some additional form of regulation is needed in New Zealand to improve public
health and safety, and regulation of paramedics under the Act would be the most
efficient and effective at this point in time.34
Many benefits of registration were identified in the application by Ambulance
New Zealand28, including the following:
323
1 Paramedics deliver health services that do have the very real potential to
cause patient harm.
2 There is a trend to regulate paramedics as health practitioners in
jurisdictions similar to New Zealand.
3 Registration would ensure consistent, professional development
requirements across New Zealand.
4 The sector would have one registering authority that would be
independent of employers, unions and education providers.
5 It is likely that the public would view paramedics as ‘trained and
registered health practitioners’.
6 The authority would have a more robust process for assessing foreign
providers.
An important feature of registration is maintenance of standards through access

to the Health Practitioners Disciplinary Tribunal in appropriate cases for activities
such as misconduct (including malpractice and negligence), unfitness to practise,
bringing the profession into disrepute and practising outside the designated scope
of practice. The potential penalties range from censure, fines and costs to having
conditions upon practice and de-registration. The merits of registration for para-
medics include consistent standards across the nation for penalties that uphold
the HPCAA’s primary focus on public safety. Cases of serious breaches of the
Code by paramedics, arguably evident within the above HDC’s opinions,
might progress to a disciplinary hearing with benefits to the profession and to
the public.
Ambulance New Zealand reported volunteers’ perspectives on registration:
‘Nearly 75% of the respondents who identified themselves as volunteers agreed there
was high risk that the sector would lose large numbers of volunteers if they were
required to be registered’35 and ‘84% of people working in remote areas thought
regulation would stop volunteers from practicing’.36 However, the result of a ques-
tionnaire sent out by Ambulance New Zealand in 2008 reported that 28% of
volunteers would definitely consider a career as a paid staff member and 31% might
do so.37 It was not clear if more volunteers would be inclined to acquire the requisite
qualifications and register if paramedicine was governed by the HPCAA. However,
if they did, registration might offer a career pathway for volunteers, thereby respond-
ing to the existing shortage in the paid workforce. The issue of volunteer status
remains a challenging issue in the debates regarding paramedic registration.
Likewise, there will be costs associated with registration. Historically, unions have
negotiated into industrial agreements the payment of annual practising certificate
fees and at least a portion of the cost of maintaining competence.28 This arrange-
ment might be altered by the registration regime. It is also not clear whether the
government will contribute, particularly in a sector that has been significantly
funded by donations. Costs are a significant feature; Ambulance New Zealand
estimated that per person, the ‘one-off’ registration could be approximately $350
to $400 with an annual fee of approximately $500.38 Ambulance New Zealand
324
reported that, although the costs of regulation are a concern, ‘the majority of those
consulted accepted that the costs were outweighed by the benefits’.38
The consultation exercise also revealed that paramedics strongly preferred
a paramedic-specific registration authority. The notion of a blended board with,
for example, nurses or doctors was rejected because ‘there was little synergy in
scope or in the way the sector is organised or the training of the professions and
paramedicine’.39
Additional challenges to the future of New Zealand paramedicine were identified
by Shaqsi.40 For example, New Zealand, like other countries, must anticipate the
service requirements of our population. Many older people are resorting to emer-
gency medical services although, if routine health care were readily available, they
‘would have been taken care of adequately with better quality, greater dignity and
lower costs’.40 New Zealand’s ability to deliver competent paramedic services depends
on wider, preventive public health strategies.
The shortage of paramedics in New Zealand also influences the provision of care.
One result is that it is estimated that approximately 70% of emergency cases are
attended by a single crew ambulance in some regions.41 According to Costa-Scorse42,
optimum care requires two staff; single crewing limits the capacity to provide effec-
tive life support and leaves patients unattended during transport. In contrast, double
crewing provides more continuous care, monitoring and safety for both paramedics
and consumers. In turn, this staffing has a direct impact upon the required legal
standard of care required under the Code.
Conclusion
Paramedics face some of the most challenging medical crises, often under extreme
conditions and time limitations. Their responses may have life-sustaining (and life-
threatening) impacts. In many respects, the wider legal, political and economic
context influences how paramedics respond. In part, public safety is guarded by the
HDC and the code of rights. However, as demonstrated by the Cartwright20, Cull24
and Kedgley41 reports, New Zealand remains very concerned about the safety of
health consumers. Of equal import, research by Costa-Scorse42, Al-Shaqsi3, Tye33
and Ambulance New Zealand28 reveals that many of those concerns are intimately
understood and widely shared by New Zealand paramedics. The combined response
has been to debate the merits of legal regulation of paramedicine. While regulation
under the HPCAA may be a partial solution, serious concerns remain regarding the
viability and future of New Zealand’s dedicated volunteers. However, the recent,
substantial discussions regarding the impact of registration upon volunteers dem-
onstrates New Zealand’s appreciation of their historic and future contribution.
More broadly, New Zealand attempted to stem litigation through its accident
compensation scheme.43 For registered health practitioners, the gaps in account-
ability have been partially addressed through legislation and the professional disci-
plinary tribunal. For paramedics and members of other unregistered occupations,
accountability and public safety remain a serious concern. For these reasons, and
because of the multiple benefits to paramedics, registration is the most prominent
legal debate paramedics currently face in New Zealand.44
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Review questions
1 What is the primary legal method for protecting patients’ rights in New
Zealand?
2 Which right under the Code is most frequently the basis of a finding of
breach by the HDC and what are the implications of that right for compe-
tent practice?
3 What additional legal recourse does an aggrieved patient have when there
has been a breach of a right under the Code by a paramedic?
4 What is the current legal impact of New Zealand’s accident compensation
system for patients who suffer harm from negligent treatment by a
paramedic?
5 Based on the research, what are the arguments for, and against, registration
of paramedics in New Zealand?
6 What legal impact will registration have upon New Zealand paramedics and
their patients?
Appendix 14.1
Legislation and cases relevant to paramedics in New Zealand and Australia
New Zealand Australia
Legislation Accident Compensation Act 2001 Civil Law (Wrongs) Act 2002 Pt 2 (ACT)
Health and Disability Commissioner Act Civil Liability Act 2002 Pt 10 (NSW)
1994 Personal Injuries (Liabilities and
Health and Disability Commissioner Damages) Act 2003 Pt 2 Div 2 (NT)
(Code of Health and Disability Services Civil Liability Act 2003 Ct 4 Pt 1 (Qld)
Consumers’ Rights) Regulations 1996, Civil Liability Act 1936 Pt 9 Div 12 (SA)
Schedule Civil Liability Act 2002 Pt 4 (Tas)
Health Practitioners Competence Wrongs Act 1958 Pt IIC (Vic)
Assurance Act 2003 Civil Liability Act 2002 Pt IE (WA)
(Available: http://www.nzlii.org.nz)
Cases Health and Disability Commissioner Wighton v Arnott [2005] NSWSC 637
cases: (Available: http://www.austlii.edu.au/)
97HDC5922
97HDC9983
98HDC15374
99HDC02269
01HDC15000/02HDC00077
03HDC00153
(Available: http://www.hdc.org.nz/
decisions--case-notes)
326
Appendix 14.2
Definition of ‘treatment injury’ under the Accident Compensation Act 2001
Section 32 Treatment injury
(1) Treatment injury means personal injury that is –
(a) suffered by a person –
(i) seeking treatment from 1 or more registered health professionals; or
(ii) receiving treatment from, or at the direction of, 1 or more registered health
professionals; or
(iii) referred to in subsection (7); and
(b) caused by treatment; and
(c) not a necessary part, or ordinary consequence, of the treatment, taking into account all the
circumstances of the treatment, including –
(i) the person’s underlying health condition at the time of the treatment; and
(ii) the clinical knowledge at the time of the treatment.
(2) Treatment injury does not include the following kinds of personal injury:
(a) personal injury that is wholly or substantially caused by a person’s underlying health
condition;
(b) personal injury that is solely attributable to a resource allocation decision;
(c) personal injury that is a result of a person unreasonably withholding or delaying their
consent to undergo treatment.
(3) The fact that the treatment did not achieve a desired result does not, of itself, constitute
treatment injury.
(4) Treatment injury includes personal injury suffered by a person as a result of treatment given
as part of a clinical trial, in the circumstances described in subsection (5) or subsection (6).
(5) One of the circumstances referred to in subsection (4) is where the claimant did not agree, in
writing, to participate in the trial.
Appendix 14.3
Code of Health and Disability Services Consumers’ Rights
Right 1: Right to be Treated with Respect
Right 2: Right to Freedom from Discrimination, Coercion, Harassment, and Exploitation
Right 3: Right to Dignity and Independence
Right 4: Right to Services of an Appropriate Standard
Right 5: Right to Effective Communication
Right 6: Right to be Fully Informed
Right 7: Right to Make an Informed Choice and Give Informed Consent
Right 8: Right to Support
Right 9: Right in Respect of Teaching or Research
Right 10: Right to Complain
(Full text available at: http://www.hdc.org.nz/the-act--code)
327
Endnotes
1 Kedgley, S (2008) Inquiry into the Provision of Ambulance Services in New Zealand.
Report of the Health Committee. Presented to the New Zealand House of
Representatives. Online. Available: http://www.parliament.nz/enNZ/SC/Reports/f/b/
b/48DBSCH_Inquiry-into-the-provision-of-amulance-services.htm (accessed 10
October 2011).
2 ThreeNews (2008) Inquiry shows ambulance services in a desperate situation. (8 July
2008). Online. Available: http://www.3news.co.nz/Inquiry-shows-ambulance-services-
in-a-desperate-situation/tabid/209/articleID/62340/Default.aspx (accessed 28
October 2011).
3 Al-Shaqsi, S (2010) Current challenges in the provision of ambulance services in
New Zealand. International Journal of Emergency Medicine 3, pp. 213–217.
New Zealand. International Journal of Emergency Medicine 3, pp. 213–217, citing
Hodgson, H (2008) Ambulance Services Sustainable Funding Review. Wellington:
Ministry of Health.
5 St John Ambulance (2008) St John Annual Report 2008. Wellington: St John.
Online. Available: http://www.stjohn.org.nz/files/201477_2009423958.PDF
(accessed 10 October 2011).
6 New Zealand Standards (2008) New Zealand Standards for ambulance and
paramedical services 8156. Online. Available: http://www.standards.co.nz/news/
Media+archive/July+-+Sept+07/Ambulance+Services.htm (accessed 28 November
2011). See also St John (2008) Authorised Patient Care Procedures 2008–2010.
Wellington: St John.
New Zealand. International Journal of Emergency Medicine 3, p. 215.
8 Beaumont, N (2008) Coroner calls for ambulance guidelines. Dominion Post, 22
February 2008. Online. Available: http://www.stuff.co.nz/dominion-post/archive/
national-news/280294/Coroner-calls-for-ambulance-guidelines (accessed 27
November 2011).
9 Hodgson, H (2008) Ambulance Services Sustainable Funding Review. Wellington:
Ministry of Health.
10 Manning, J (2006) The required standard of care for treatment. In: Skegg, PDG and
Paterson, R (eds), Medical Law in New Zealand. Wellington: Thomson Brookers,
p. 61.
11 Skegg, PDG (2011) A fortunate experiment? New Zealand’s experience with a
legislated code of patients’ rights. Medical Law Review 19(2), pp. 236–266.
12 Paterson, R (2006) Regulation of health care. In: Skegg, PDG and Paterson, R (eds),
Medical Law in New Zealand. Wellington: Thomson Brookers, pp. 3–22.
13 Brazier, M (1992) Medicine, Patients and the Law, 2nd edn. London: Penguin.
14 Brazier, M (1992) Medicine, Patients and the Law, 2nd edn. London: Penguin,
p. 221.
15 Civil Law (Wrongs) Act 2002 Pt 2 (ACT), Civil Liability Act 2002 Pt 10 (NSW),
Personal Injuries (Liabilities and Damages) Act 2003 Pt 2 Div 2 (NT), Civil Liability
Act 2003 Ct 4 Pt 1 (Qld), Civil Liability Act 1936 Pt 9 Div 12 (SA), Civil Liability
Act 2002 Pt 4 (Tas), Wrongs Act 1958 Pt IIC (Vic), Civil Liability Act 2002 Pt IE
(WA), Wighton v Arnott [2005] NSWSC 637.
328
16 See further, Madden, B and Cockburn, T (2007) Bundaberg and beyond:

duty to disclose adverse events to patients. Journal of Law and Medicine 14(4),
pp. 501–527.
17 Nash, LM, Walton, MM, Daly, MG, Kelly, PJ, Walter, G, van Ekert, EH, Willcock,
SM and Tennant, CC (2010) Perceived practice change in Australian doctors as a
result of medicolegal concerns. Medical Journal of Australia 193(10), pp. 579–583.
18 Brazier, M (1992) Medicine, Patients and the Law, 2nd edn. London: Penguin,
p. 430.
19 Skegg, PDG (2011) A fortunate experiment? New Zealand’s experience with a
legislated code of patients’ rights. Medical Law Review 19(2), p. 235.
20 Cartwright, S (1988) The Report of the Committee of Inquiry into Allegations
Concerning the Treatment of Cervical Cancer at National Women’s Hospital and
into other related matters. Online. Available: http://www.moh.govt.nz/moh.nsf/
indexmh/cartwright-inquiry (accessed 24 November 2011).
21 Manning, J (2006) The required standard of care for treatment. In: Skegg, PDG
and Paterson, R (eds), Medical law in New Zealand. Wellington: Thomson Brookers,
pp. 61, 62.
22 Bismark, M, Dauer, E, Paterson, R and Studdert, D (2006) Accountability sought by
patients following adverse events from medical care: the New Zealand experience.
Canadian Medical Association Journal 175(8), pp. 889–894.
23 Paterson, R (2002) Health professionals – institutional structures, regulation and
complaints. Auckland District Law Society Health Law Seminar October 2002.
Online. Available: http://www.hdc.org.nz/education/presentations/health-
professionals--institutional-structures,-regulation-and-complaints (accessed 27
November 2011).
24 Cull, H QC (2001) Review of Processes Concerning Adverse Medical Events.
Wellington: Ministry of Health.
25 Baker, T (2008) The Human Rights Review Tribunal and the rights of health and
disability consumers in New Zealand. Journal of Law and Medicine 16(1), pp. 85–102.
26 Paterson, R (2001) The patients’ complaint system in New Zealand. Health Affairs
3(21), pp. 70–79.
27 Diesfeld, K (2003) Patients’ rights and procedures: international perspectives.
International Journal of Therapy and Rehabilitation 10(11), pp. 497–503.
28 Ambulance New Zealand (2011) Application for the regulation of paramedics under
the Health Practitioners Competence Assurance Act 2003. Wellington: Ambulance New
Zealand.
29 Relevant opinions of the Health and Disability Commissioner are: 97HDC5922;
97HDC9983; 98HDC15374; 99HDC02269; 01HDC15000/02HDC00077;
03HDC00153.
30 Diesfeld, K and Godbold, R (2010) Legal rehabilitation of health professionals in
New Zealand. International Journal of Therapy and Rehabilitation 17(4), pp. 40–47.
31 Reynolds, L and Adelaide, S (2004) Is prehospital care really a profession?
International Journal of Prehospital Care Research, Education, Clinical Practice,
Policy and Service Delivery Online. Available: http://www.jephccom/uploads/
9908opdt2004 (accessed 10 October 2011).
Representatives. Online. Available: http://www.parliament.nz/enNZ/SC/
329
Reports/f/b/b/48DBSCH_Inquiry-into-the-provision-of-amulance-services.htm
(accessed 10 October 2011).
33 Tye, S (2011) Final Report: Registration of Ambulance Officers and New Zealand
Defence Force Medics under the HPCA Act 2003, Consulting the Profession. Cited
in: Ambulance New Zealand (2011) Application for Regulation of Paramedics and
New Zealand Defence Force Medics under the Health Practitioners Competence
Assurance Act 2003. Wellington: Ambulance New Zealand, p. 4.
Zealand, p. 16.
Zealand, p. 5.
Zealand, p. 6.
Zealand, p. 25.
Zealand, p. 27.
Zealand, p. 28.
New Zealand. International Journal of Emergency Medicine 3, p. 213.
Representatives. Online. Available: http://www.parliament.nz/enNZ/SC/Reports/f/b/
b/48DBSCH_Inquiry-into-the-provision-of-amulance-services.htm (accessed 10
October 2011).
42 Costa-Scorse, B (2008) Submission on the Provision of Ambulance Services in New
Zealand. Emergency Primary Health Care. Article 990321. Online. Available: http://
www.jephc.com/full_article.cfm?content_id=492 (accessed 10 October 2011). See
also Diesfeld, K (2008) Commentary on the AUT Submission and Inquiry into the
Provision of Services in New Zealand. Journal of Emergency Primary Health 6(3),
pp. 9–10. Online. Available: http://www.jephc.com/full_article.cfm?content_id=493
(accessed 27 November 2011).
43 Keenan, R, ed (2010) Health Care and the Law, 4th NZ edn. Wellington: Thomson
Reuters.
44 I gratefully acknowledge assistance, advice and/or inspiration from the following: Em
Pooley, BSocSc (Hons) MSocSc (Hons) MLIS, of the University of Waikato; David
Waters, Chief Executive of Ambulance New Zealand; AUT University including
Brenda Costa-Scorse, Paul Davies, paramedic staff and BHSc paramedic students; the
staff of St John Dunedin, Blenheim and Nelson; Major Brendan Wood, OStJ, DSD,
RNZAMC; and Ruth Townsend. The analysis is the author’s.
330
Glossary
Accident Compensation Act 2001 (NZ): Legislation defining accident compensation system
and treatment injury.
Act of Parliament: See legislation.
Actus reus: Latin for guilty act.
Adult: A person who has reached full legal capacity – 18 years of age in Australia and 20
in New Zealand. In South Australia, an adult is someone who is 16 years or over for
medical purposes.
Advance directive: A document that expresses a person’s wishes in relation to medical
treatment in the event of becoming incapacitated.
Alternative argument: The best argument you can conceive of for an alternative course of
action.
Assault: Unlawful touching of a person without consent giving rise to criminal charges
and prosecution.
Attorney: A person who has been appointed by another to make decisions for, and on
their behalf, at a time when they are no longer capable of making decisions.
Beyond reasonable doubt: The standard of proof required to find a person guilty of a
criminal offence.
Bioethics, four principles of: The view that holds that an action is ethical if it is the action
that best upholds the principles of autonomy, non-maleficence, beneficence and justice.
Bullying and harassment: Distinct from discrimination, 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.
Capacity: The ability to understand the nature, purpose and consequences of a decision.
Case law: The principles of law arising from judicial decisions of legal cases.
Child: A child or minor (see below) is a person who has not yet reached the age of
majority; however, the definition of a ‘child’ for the purposes of providing consent for
medical treatment may vary as between jurisdictions.
Child abuse: In terms of defining abuse, section 4(1) of the federal Family Law Act states
that: ‘Abuse, in relation to a child, means: a) an assault, including a sexual assault, of the
child which is an offence under a law, written or unwritten, in force in the State or
Territory in which the act constituting the assault occurs; or b) a person involving the child
in a sexual activity with that person or another person in which the child is used, directly
or indirectly, as a sexual object by the first-mentioned person or the other person, and
where there is unequal power in the relationship between the child and the first-
mentioned person’.
Code of conduct: The published basis for the guidance of ethical and professional
behaviour.
Code of Health and Disability Services Consumers’ Rights (NZ): Code defining consumers’
10 rights.
Common law: Unwritten law derived from decisions by the judiciary. Developed by courts
over the ages, it is applied in similar cases to provide consistency and certainty in law
making.
331
Glossary
Competence: Used interchangeably with capacity. A person who is deemed to have the
capacity to make decisions about a matter is deemed to be competent. In end-of-life
decision making, a person is competent or has decision-making capacity if they are able to
understand the nature, purpose and consequences of a decision. This is demonstrated
when the patient can ‘comprehend, retain and weigh up relevant information’ and make a
decision regarding their future healthcare treatment and then communicate that decision
to others. There is a presumption of competence in adults. It is a matter for healthcare
staff to demonstrate otherwise.
Consequentialist ethics: The view that holds that an action is ethical if, as a consequence
of the action, the maximum overall amount of happiness results.
Criminal law: The body of rules and legislation that prohibits certain conduct and imposes
a penalty or punishment on those who are found to have committed such conduct.
Defendant: The party who responds to proceedings initiated by another seeking relief.
Deontological ethics: The view that holds that an action is ethical if it is guided by a set of
universal moral rules.
Duty of care: The obligation owed to anyone who could be injured by a person’s lack of
care. It must be ‘reasonably foreseeable’ that an injury could result from the lack of care.
Employee: Someone who performs tasks under the control and direction of an employer in
return for remuneration.
Employment contract: A legally binding agreement between an employer and employee,
who have come together freely for the purpose of exchange or to provide a service.
Ethical dilemma: A case that requires you, in responding to it, to make a choice between
equally unfavourable options.
Ethical governance: Control that is exercised through the creation of regulations or
guidelines based on moral principles.
Ethics: The study of what it means for something to be morally right or wrong.
Fair Work Act 2009 (Cth): A federal instrument that legislates to provide for significant
changes on a number of levels, including National Employment Standards, unfair dismissal
and enterprise agreements.
Four principles of bioethics: The view that holds that an action is ethical if it is the action
that best upholds the principles of autonomy, non-maleficence, beneficence and justice.
Guardian: A person appointed, usually by a court or tribunal, to make decisions on behalf
of another who has impaired decision-making capacity.
Health Practitioners Competence Assurance Act 2003 (NZ): Legislation governing
registration.
Illegal: Describes behaviour that is contrary to criminal law.
In loco parentis: In place of a parent.
Judiciary: Those people who adjudicate legal disputes in courts of law.
Jurisdiction: The scope or area the law’s authority covers.
Law: ‘The system of rules which a particular country or community recognises as
regulating the actions of its members and which it may enforce by the imposition of
penalties.’ (endnote 1, Chapter 1)
Legislation: A law or body of laws made and enacted by the Parliament (known as a
statute or an Act of Parliament).
Mandatory reporting: The law generally phrases mandatory reporting in this way: ‘If
personnel have reasonable grounds for suspecting that a child has been abused, or is at
332
Glossary
risk of being abused, the person must, as soon as practicable, notify a prescribed child
welfare authority of his or her suspicion and the basis for the suspicion.’
Mens rea: Latin for guilty mind.
Mental health emergency: A circumstance in which an individual’s mental illness presents
an immediate danger to the individual or others, often characterised by delusions,
hallucinations and/or serious disorders of thought, mood or perception.
Mental illness: A clinically significant disturbance of thought, mood, perception or
memory.
Minor: A person who has not yet reached the age of majority – 18 years in Australia and
20 in New Zealand.
Natural justice: The notion that proceedings are conducted impartially, fairly and without
prejudice.
Negligence: The failure to exercise appropriate levels of care, which causes reasonably
foreseeable harm.
On the balance of probabilities: The standard of proof required to establish liability in a
civil matter.
Parens patriae: The jurisdiction of the court to intervene and make decisions to ensure
the welfare of those who are vulnerable and unable to care for themselves.
Patient health care record: A document containing personal, sensitive and health care
information including a patient’s medical history and the health care provided by health
professionals.
Plaintiff: The party who initiates court proceedings seeking relief against another party.
Precedent: A decision that interprets law and acts as a guide for future cases. It is an
important doctrine that ensures there is a stable legal framework on which to consider
each new legal case.
Principles: Accepted postulates, values or standards employed to form a basis for
evaluation.
Profession: ‘An occupation whose core element is work, based on the mastery of a
complex body of knowledge and skills. It is a vocation in which knowledge of some
department of science or learning, or the practice of an art founded on it, is used in the
service of others. Its members profess a commitment to competence, integrity, morality,
altruism, and the promotion of the public good within their domain. These commitments
form the basis of a social contract between a profession and society.’ (endnote 2,
Chapter 1)
Reconnaissance: The process of going out into the field to gather salient facts in order to
gain some advantage.
Statute: See legislation.
Strict liability: Where liability is not based on any form of culpability or fault but only proof
that the act in question occurred.
Substitute decision maker: A person appointed to make decisions for and on behalf of
another with impaired decision-making capacity.
Tort: A civil wrong or wrongful act.
Trespass: Tort of trespass. Touching a person without his/her consent, or a threat or
conduct that creates an apprehension that the said conduct will occur.
Unlawful: An action that is in breach of civil law (can also be used in reference to breach
of criminal law).
333
Glossary
Unlawful discrimination: Less than favourable treatment of an individual based on race,

sex, disability, age, sexuality or religion.
VACIS system: A computerised patient health care record system designed by Ambulance
Victoria that is now used by a number of Australian ambulance services (VACIS is an
acronym for Victorian Ambulance Clinical Information System).
Vicarious liability: The liability imposed on one person or corporation for the wrongful act
of another on the basis of the legal relationship between them. With respect to
employment law, it is the liability imposed on the employer (although not technically at
fault) for unlawful actions (such as torts and crimes) committed by an employee in the
course of the employee’s work.
Virtue ethics: The view that holds that an action is ethical if it is motivated by virtue.
334
Index
Page numbers followed by ‘f ’ indicate figures, ‘t’ indicate tables and ‘b’ indicate boxes.
A default decision maker and 165–167 AHPRA see Australian Health

abortion definition of 157 Practitioner Regulation Agency
ethical relativism and 16 enduring attorney and 175 AIDS see acquired immune deficiency
tolerance and 17 Guardianship Act 1987 and 180t syndrome
ACC see Accident Compensation Guardianship and Administration Act air transport, for patients 319b
Commission 1990 and 178t AIRC see Australian Industrial
Accident Compensation Act 1985 (Vic) Guardianship and Administration Act Relations Commission
259t, 318 1993 and 174t alcohol
Accident Compensation Act 2001 (NZ) Guardianship and Administration Act capacity and 104
259t, 264t, 326t 2000 and 177t car crash and 52b
definition of 312 legislation for 173t–182t civil liability and 53–54
medical treatment injury in liability with 163–164 duty of care and 140–141
316–317, 327t medical power of attorney and 161, infants and 203
Accident Compensation Commission 174 law about 53
(ACC) 314 Medical Treatment Act 1988 and negligence and 131b
accountability 175t ALS see Advanced Life Support
of paramedic 84 Medical Treatment (Health alternative argument
in Paramedics Australasia Code of Directions) Act 2006 and consequentialist ethics and 41
Conduct 39–40, 60 175t–176t definition of 33
ACD see advance care directive Natural Death Act 1988 and 174t deontological ethics and 41
acquired immune deficiency syndrome pain and 167–168 ethical dilemmas and 37
(AIDS) 226 palliative care and 161, 167–168, evaluate and 44
Act see legislation 175 in PRECARE 35, 40–41, 44
Act of Parliament see legislation persistent vegetative state and 173 virtue ethics and 41
actus reus 87 Powers of Attorney Act 1988 and altruism 2–3
definition of 67 177t as virtue 24
administrative courts 69 PRECARE and 162 ambulance services 81
Administrative Decisions Tribunal 76 refusal of treatment and 175 Ambulance Service Act 1991 (Qld)
administrative law 74, 76 suicide and 167 72–73, 234–237
Adoption Act 1988 (SA) 210t–211t surrogate decision maker and Ambulance Service of NSW
Adoption Act 1993 (ACT) 210t–211t 165–167 case study with 62–64, 62b–63b
Adoption Act 1994 (WA) 210t–211t voluntary 162–163 Code of Conduct 2006 of 56
ADR see adverse drug reaction Advanced Life Support (ALS) 323 Ambulance Service of NSW v Worley
adrenaline, for anaphylactic reaction adverse drug reaction (ADR) 309 142–144, 142b–143b
68b, 309b Africa, FGM in 15b contributory negligence in 144
adult age of consent court of appeal and 144
definition of 92, 157 laws for 214t Ambulance Service Regulation 2003
refusal of treatment by 96b–97b, for sex 197, 214t 72–73
105b, 107b Age of Majority Act 1970 (NZ) 113t Ambulance Services Act 1986 (Vic)
see also majority Age of Majority Act 1972 (WA) 113t 300–302
Adult Guardianship Act 2009 (NT) Age of Majority Act 1974 (ACT) 113t Ambulance Tasmania
110t–111t Age of Majority Act 1981 (NT) 113t State Service Code of Conduct of
advance care directive (ACD) Age of Majority Act 1993 (Vic and Tas) 57
161–165 113t State Service Principles of 57
agent and 173 agent amiodarone 303t
anticipatory decisions and 161 ACD and 173 anaphylactic reaction
attorney and 173 capacity of 173t–182t adrenaline for 68b, 309b
autonomy and 160 Consent to Medical Treatment and from bee stings 142–144,
capacity and 165–167, 174 Palliative Care Act 1995 and 142b–143b
case law and 160 173t–174t negligence with 68b
clinical practice guidelines with for informed consent 26 Anti-Discrimination Act 1977 (NSW)
164–165 as substitute decision maker 109 268t
common law and 160–161 AHMC see Australian Health Anti-Discrimination Act 1991 (Qld)
competence and 160–162 Ministers’ Conference 268t
335
Index
Anti-Discrimination Act 1992 (NT) Bailey v Peakhurst Bowling and Brown, T 2–3
268t Recreation Club Ltd 265 bullying
Anti-Discrimination Act 1998 (Tas) balance of probabilities, causation and definition of 250
268t 137 harassment and 265
anti-smacking legislation 190 bare value terms, principles as 55 suicide and 265
applied principles 55 basic assumptions, principles as 55 in workplace 269–271
appropriate person, as substitute Basic Life Support (BLS) 323 Burdekin Report 230
decision maker 109 battered child 191 ‘but for’ test, for causation 137–138
assault battery, torts of 131 BWV, Re 166
child abuse as 187, 190 Beauchamp, T 25
definition of 92 ‘beauty is in the eye of the beholder’ C
by doctors 163b 15 calculus of negligence 134
hepatitis C and 34b, 35 bee stings, anaphylactic reaction from cancer 226
torts of 131 142–144, 142b–143b capacity
assessment beliefs ACD and 165–167, 174
of capacity 104–106 culture and 202–203 of agent 173t–182t
outcome for 106–107 about ethics 3 to assess risk 136–137
for drug administration 308–309 ethical objectivism and 16–17 assessment of 104–106
of duty of care 134 ethical relativism and 16 outcome for 106–107
for mental illness 228, 231–237 refusal of treatment and 105 of child 117–119, 120b, 180
involuntary 229, 234–237 about rights 22 common law and 104–105
voluntary 229 tolerance and 16–17 competence and 98
in PHCR 293 Bell, Max 160 consent and 98
for workplace safety 265–267 Bendall, J 81 Consent to Medical Treatment and
Atkin (Lord) 133 beneficence Palliative Care Act 1995 and
atropine 303t definition of 27–28 174
attorney in four principles of bioethics 8, definition of 92
ACD and 173 25, 27–28, 37 factors that reduce 104
definition of 92 non-maleficence and 28 lack of 165–167
as substitute decision maker 109 overdose and 30, 30t majority and 113t
see also enduring attorney; statutory PRECARE and 38 mental illness and 105b
health attorney benztropine 303t presumption of 104
Austlii see Australian Legal Information best interests, of child 116, 117b refusal of treatment and 103–107
Institute better off overall test (BOOT) 258 sliding scale for 106
Australian Health Ministers’ Advisory beyond reasonable doubt 67 substitute decision maker and
Council 82 bias, freedom from 70 107–109
Australian Health Ministers’ Bill 72 sufficient understanding for 106
Conference (AHMC) 82, 239 development process for 73t car crash
Australian Health Practitioner see also specific Bills alcohol and 52b
Regulation Agency (AHPRA) blindness 136b blood relatives in 20b, 25b
135 vicarious liability for 138b celebrities in 20, 20b, 24b
Australian Industrial Relations blood relatives Jehovah’s Witnesses and 13b, 75b,
Commission (AIRC) 254 in car crash 20b, 25b 104b
Australian Iron & Steel v Banovic 269 consequentialist ethics and 20b cardiopulmonary resuscitation (CPR)
Australian Legal Information Institute as enduring attorney 112b 158
(Austlii) 80 professional boundaries with Care and Protection of Children Act
Australian Medical Association 160 48b–49b 2007 (NT)
authority virtue ethics and 25, 25b child definition in 209t
for ethics 17 blood transfusion, Jehovah’s Witnesses child protection and 210t–211t
ethical relativism and 16 and 13b, 14, 75b, 96b–97b, intervention threshold for
law from 69 104b 215t
professionals and 83 BLS see Basic Life Support mandatory reporting for
autonomy 3 body, after death 171 216t–220t
ACD and 160 BOOT see better off overall test Care of Children Act (NZ) 114, 119
confidentiality and 38 bound 53–54 Cartwright Report 316
definition of 26–27 box jellyfish antivenom 303t case law 73
in four principles of bioethics 8, BP Refinery (Westernport) Pty v Shire of ACD and 160
25–27, 37 Hastings 253 definition of 67
informed consent and 26–27, 30 Brazier, M 315 employee and 253
overdose and 30, 30t breach of duty of care 134 see also specific cases
of patients 5 causation and 137 causation
PRECARE and 38 civil liability and 152 balance of probabilities and 137
as principle 55 explanation of 134–137 breach of duty of care and 137
with surrogate decision maker 165 Brightwater Care Group (Inc) v Rossiter ‘but for’ test for 137–138
103 definition of 137–138
B British General Medical Council 3 factual 138, 152
Babylonia, code of conduct in 49 broken leg, non-maleficence and 27b, futile treatment and 170
back street procedures 202 28 legal 138
336
Index
in Neal v Ambulance Service of laws for 203–207 mandatory reporting for

New South Wales 153 legislation for 210t–211t 216t–220t
negligence and 132, 137–138 mandatory reporting and 186–224 Childress, J 25
caution, in poison schedule 301t legislation for 216t–220t Christianity
ceftriaxone 303t overview of 188–192 rights in 22
celebrities privacy and 207 Ten Commandments and 22
in car crash 20, 20b, 24b responsibility for 189–191 murder in 22
consequentialist ethics and 20, 20b statutory authorities for 212t circles of control, governance and 51
virtue ethics and 24b unlawful discrimination and civil law 74–76
charities 19 202–203 for disputes 75
in Ethiopia 19b Child Protection Act 1999 (Qld) 209t, standard of proof in 75
opiate overdose and 21b 216t–220t see also specific cases
Charter of Human Rights 77 Child Protection (Offenders Registration) Civil Law (Wrongs) Act 2002 (ACT)
The Charter of Human Rights and Act 2000 (NSW) 210t–211t 133t, 326t
Responsibilities Act 2006 (Vic) Child Protection and Family Services civil liability
210t–211t 212t alcohol and 53–54
chastity, as female virtue 24 Child Safety Services 212t breach of duty of care and 152
Chiarella, M 25, 34–35, 43 Child Wellbeing and Safety Act 2005 contributory negligence and 141
Chief Constable of Lincolnshire Police v (Vic) 210t–211t intoxication and 140–141
Stubbs 270 child definition in 209t of Samaritans 53–54, 140
Chief Health Officer, infectious Children, Young Persons and Their Civil Liability Act 1936 (SA) 53–54,
diseases and 42–43 Families Act 1989 (NZ) 133t, 326t
child child definition in 209t Civil Liability Act 2002 (NSW) 133t,
best interests of 116, 117b child protection and, intervention 326t
capacity of 117–119, 120b, 180 threshold for 215t Civil Liability Act 2003 (Qld) 133t,
consent and 109–120 Children, Young Persons and Their 262, 326t
definition of 92, 112–114, 186 Families Act 1997 (Tas) civil rights 2, 77
legislation on 209t 210t–211t clitoridectomy see female genital
emergencies with 115 child definition in 209t mutilation
ethical dilemma with 116 child protection and clopidogrel 303t
human rights of 186 intervention threshold for 215t code of conduct
neglect of 199–200 mandatory reporting for application of 61–65
non-emergencies with 115 216t–220t confidentiality and 62–65,
possible accidental injuries by 212t Children, Youth and Families Act 2005 62b–63b
possible non-accidental injuries by (Vic) 210t–211t definition of 33, 48
213t–214t child protection and ethical governance and 49–50
refusal of treatment by 119–120 intervention threshold for 215t evaluate and 44
refusal of treatment for 115–116 mandatory reporting for integrity and 54
responsible person for 180 216t–220t knowledge of 4–5
see also infants Children and Community Services Act morality and 54
child abuse 2004 (WA) in PRECARE 35, 39–40, 44
as assault 187, 190 child definition in 209t principles of 60–65
defences for 190 child protection and professional and 4
definition of 186–187 intervention threshold for 215t quality of relationship and
discipline and 190, 195 mandatory reporting for 60–61
emotional/psychological 194, 216t–220t values in 60–61
197–199, 198b Children and Young People Act 2008 Code of Conduct, of Paramedics
FII and 200–201 (ACT) 209t Australasia 39–40, 42, 59–60
identification of 192–194 child protection and, mandatory accountability in 39–40, 60
mandatory reporting of 186–224 reporting for 216t–220t competence in 39–40, 60
paramedic and 193–194 child definition in 209t confidentiality in 39–40, 60
parents and 195 child protection and 210t–211t consent in 39–40, 60
physical 194–195 intervention threshold for 215t ethical review in 39–40, 60
pornography and 187b, 195–196 Children and Young Persons (Care and integrity in 39–40, 59
reasonable force and 190 Protection) Act 1998 (NSW) privacy in 42
rule of optimism and 204–205 100t–101t, 216t–220t research in 39–40, 60
sex as 187, 194–197 child definition in 209t respect in 39–40, 60
suspected 193b child protection and 210t–211t responsibility in 39–40, 60
reporting of 206 intervention threshold for trust in 42
types of 194–203 215t Code of Conduct 2006, of Ambulance
unacceptable risk of apprehended Children and Young Persons (Care and Service of NSW 56
harm for 204 Protection) Amendment (Parental Code of Conduct 2010, of Queensland
child protection Responsibility Contracts) Act 2006 Public Service 57
culture and 201–203 (NSW) 210t–211t Code of Conduct for Victorian Public
history of 191–192 Children’s Protection Act 1993 (SA) Sector Employees 57
immigrants and 201 210t–211t Code of Ethics and Conduct 2010, of
intervention threshold for 204, child protection and SA Ambulance Service 56
215t intervention threshold for 215t Code of Hammurabi 49
337
Index
Code of Health and Disability Services compliance, to rules and regulations 3 constructive dismissal, from
Consumers’ Rights 93, 103, confidentiality 2–3 employment contract 259–260
318–323 autonomy and 26, 38 contract law
definition of 312 code of conduct and 62–65, good faith in 257
informed consent and 97 62b–63b see also employment contract
medical treatment injury and 317 about hepatitis C 34b, 35 contributory negligence 141–142
specific rights in 327t in Paramedics Australasia Code of in Ambulance Service of NSW v
Code of Justinian 49 Conduct 39–40, 60 Worley 144
Code of Practice, of St John Ambulance patient–doctor 22 civil liability and 141
WA 57 with PHCR 282, 285 defences for 153
Commission for Children and Young see also privacy control see governance
People Act 1998 (NSW) confusion, capacity and 104 controlled drug, in poison schedule
210t–211t consent 92–129 301t
Commission for Children and Young autonomy and 26 Controlled Substances Act 1984 (SA)
People and Child Guardian Act capacity and 98 302t
2000 (Qld) 210t–211t child and 109–120 Controlled Substances (Poisons)
child protection and, mandatory common law and 99 Regulations 1996 302t
reporting for 216t–220t culture and 96 Controlled Substances (Prohibited
Commission of Inquiry into the Care for drugs 307–309 Substances) Regulations 2000
and Treatment of Patients in the elements of validity for 95–98 302t
Psychiatric Unit of the Townsville emergencies and 98–99, 100t–101t Convention on the Rights of the
General Hospital 230 forms of 94–95 Child (CROC) 209t
common law 72–73 implied 94–95 coroner’s courts 78–79
ACD and 160–161 jurisdiction and 99 corporal punishment 190
capacity and 104–105 law for 4–5, 94–102 county courts 79
consent and 99 legislation and 100t–101t courage 2
consistency and 73–74 majority and 113t as virtue 24
definition of 67, 130 for medical treatment 98 court of appeal 79
employee and 264–265 non-emergencies and 99–102 Ambulance Service of NSW v Worley
intoxication and 140–141 in Paramedics Australasia Code of and 144
legislation and 73–74 Conduct 39–40, 60 Neal v Ambulance Service of New
negligence and 132–133, 135, by parents 114 South Wales and 149–151
264–265 personal relationship and 96 court system
parent rights in 114 principle of necessity and 99 end-of-life care and 164, 172
precedent and 73–74 religion and 96 law and 78–80
suicide and 169 verbal 95 paramedic and 84
transparency and 73–74 voluntary decision for 95–96 PHCR and 287
voluntary assumption of risk and when not required 98–102 structure of 78f
141–142 written 95 CPR see cardiopulmonary resuscitation
commonsense morality 19 see also age of consent; informed Crimes Act 74
Commonwealth Commissioner for consent Crimes Act 1900 (NSW) 214t
Children and Young People Bill Consent to Medical Treatment and Crimes Act 1958 (Vic) 214t
2010 209t Palliative Care Act 1995 (SA) Crimes Act 1961 (NZ) 214t
Commonwealth of Australia 119, 173t–182t Crimes Act 2000 210t–211t
Constitution Act 1900 (Cth) 71 agent and 173 Criminal Code Act 1983 (NT) 214t
community expectation duty 139 capacity and 174 Criminal Code Act 2006 (NT)
Community Priorities for National consent and 100t–101t 210t–211t
Health Policy 2003-2008 medical power of attorney and 174 Criminal Code Act Compilation 1913
230–231 substitute decision makers and (WA) 214t
community sanctions, professionals 110t–111t criminal law 74–75
and 83 consequentialist ethics 18–21 definition of 67
Community Services 212t alternative argument and 41 morality and 74
compassion 2–3, 23 blood relatives and 20b punishment and 74
law and 51 celebrities and 20, 20b suicide and 169
as principle 55 definition of 8, 19, 31, 41 torts and 131
as virtue 24 deontological ethics and 21 Criminal Law Act (SA) 74
competence infectious diseases and 42 Criminal Law Consolidation Act 1935
ACD and 160–162 objections against 19–20 (SA) 214t
capacity and 98 overdose and 18b Criminal Law Consolidation
definition of 92, 157 consistency (Medical Defences – End of Life
end-of-life care and 157 common law and 73–74 Arrangements) Amendment Bill
guardian and 180 deontological ethics and 22 2011 (SA) 160
in Paramedics Australasia Code of constitution 71 critical legal studies 69
Conduct 39–40, 60 law and 72 CROC see Convention on the Rights
of professional 68 mental health services and of the Child
refusal of treatment and 165 228–229 cruelty, freedom from 77
responsible person and 180 Constitution Act 1986 (NZ) 228–229 Cruzan, Nancy 172
338
Index
cultural relativism defendant assessment and documentation

definition of 15 definition of 130 for 308–309
FGM and 15, 15b duty of care of 134 five rights of 307–308
cultural rights 77 in mercy killing 168 authorised in 303t
culture deliberation, autonomy and 26 capacity and 104
beliefs and 202–203 democracy 61 consent for 307–309
child protection and 201–203 Deoki, Mark 60 discrepancies with 305
consent and 96 deontological ethics 21–23 duty of care and 140–141
ethics in 16 alternative argument and 41 errors with 306–309
moral codes of 16 consequentialist ethics and 21 governance of 300–304
opinions in 16 consistency and 22 infants and 203
professionals and 83 definition of 8, 22, 31, 41 leftovers 305
tolerance and 17 moral dilemmas with 21 legislation for 302t
of workplace 271–272 objections against 22–23 occupational health and safety with
customary laws 74, 76–77 privacy and 22 307–309, 308t
rigidness and 22 in PHCR 293
D Department of Child Protection 212t possession and supply of 300–304
damages Department of Communities 212t in PRECARE 299–311
caps on 132 Department of Community Services prescription for 305–306
definition of 137 210t–211t register for 304
economic loss as 137 Department of Disability, Housing safe administration of 307–309
facts for 152 and Community Services schedules of 300
from negligence 132, 137 210t–211t storage and recording of 304–305
no-fault compensation for Derse, AR 11 substitution for 304
315–316 developmentally disabled 191 case study for 305b
non-economic loss as 137 diagnosis, in PHCR 292–293 see also specific drugs
to plaintiff 152 Diagnostic and Statistical Manual of Drugs, Poisons and Controlled
significant injury for 137 Mental Disorders, Fourth Edition Substances Act 1981 (Vic) 302t
workers’ compensation for 258 Text Revision (DSM-IV-TR) Drugs, Poisons and Controlled
dangerous poisons, in poison schedule 226–227 Substances Regulations 1995 302t
301t difficult cases, ethics and 12–13 Drugs Act 1908 (SA) 302t
dangerous recreational activities 142 dilemma see ethical dilemma; moral Drugs of Dependence Act 1989 (ACT)
dangerous situations, paramedic at dilemma 302t
267 direct discrimination 269 Drugs of Dependence Regulation 2005
De Ville, Kenneth 11–12 Disability Discrimination Act 1992 302t
death (Cth) 268t DSM-IV-TR see Diagnostic and
definition of 171 disciplinary actions, against paramedic Statistical Manual of Mental
see also end-of-life care 82–84 Disorders, Fourth Edition Text
death certificate 171 discipline, child abuse and 190, 195 Revision
futile treatment and 170 discrimination see unlawful Du contrat social ou Principes du droit
Deatons Pty Ltd v Flew 138b discrimination politique (Rousseau) 70
decision making Discrimination Act 1991 (ACT) 268t due diligence 50
end-of-life care and 5 dismissal, from employment contract duty
ethical standard of care and 5 258–260 community expectation 139
legal standard of care and 5 disputes rights and 21–22
with mental illness 232–233 civil law for 75 of skill 135, 253
patients and 5 law for 69 theory 22
PRECARE and 34–45 district courts 79 duty of care
refusal of treatment and 102 Neal v Ambulance Service of alcohol and 140–141
standard of care and 136 New South Wales and 149 assessment of 134
see also capacity; default decision ‘do no harm’ see non-maleficence breach of 134–137
maker; substitute decision ‘do not resuscitate,’ tattoo of 12b causation and 137
maker; surrogate doctors civil liability and 152
decision maker assault by 163b explanation of 134–137
decision trees 232 in end-of-life care 160 of defendant 134
Declaration of Geneva 2 patient–doctor confidentiality and definition of 67, 130, 133–134
Declarations of the Rights of 22 drugs and 140–141
the Child 186 professional obligations of 4 in employment contract 260
default decision maker 109 doctrine of double effect 28 epilepsy and 139b
ACD and 165–167 doctrine of precedent 73 High Court and 134
Guardianship Act 1987 and doctrine of privity of contract intoxication and 140–141
166 254–255 mental illness and 139
personal relationship with 166 Donoghue v Stevenson 133 negligence and 132
defences double effect, doctrine of 28 non-delegable 138
for child abuse 190 drugs of off-duty paramedic 134,
for contributory negligence 153 addiction to 305 139–140
for negligence 132, 141–142 administration of for plaintiff 134
339
Index
duty of care (Continued) decision making and 5 problem and 35

of professionals 134–135, 151 doctors in 160 reconnaissance and 36
risk and 133 futile treatment in 170–171, ethical governance 48–66
of Samaritans 140 170b–171b code of conduct and 49–50
waiver of 141–142 murder and 167 definition of 48
Dworkin, Ronald 172 NSW Health Guidelines on legal governance and 51–55
179 morality and 51–55
E Tasmanian Palliative Care principles in 55–56
Eburn, M 81 Management Guidelines and ethical objectivism
economic loss, as damages 137 181 beliefs and 16–17
economic rights 77 see also advance care directive rape and 16–17
Edelsten, Geoffrey 86 enduring attorney tolerance and 16–17
elderly 191 ACD and 175 ethical principles 55
electronic records, for PHCR blood relatives as 112b ethical relativism 15–17
283–284 as substitute decision maker 109 abortion and 16
email, in workplace 270 enforcement, of regulations 51 authority and 16
embarrassment 10, 93b, 97b enoxaparin 303t beliefs and 16
emergencies enterprise agreement 252–257 fascism and 17
with child 115 doctrine of privity of contract and Holocaust and 17
consent and 98–99, 100t–101t 254–255 of Nazis 16
mental health 230–231 Fair Work Act 2009 and 255 tolerance and 16–17
off-duty paramedic and 139–140 Fair Work Australia and 256 ethical review, in Paramedics
emergency examination order 235 National Employment Standards Australasia Code of Conduct
Emergency Medical Operations Act and 257 39–40, 60
(NT), consent and 100t–101t enterprise bargaining 254–257 ethical standard of care, decision
emergency medical technician (EMT) good faith in 257 making and 5
253–254 epilepsy, duty of care and 139b Ethiopia, charities in 19b
emotional/psychological child abuse Equal Opportunity Act 1984 (SA) 268t Euclid 55
194, 197–199, 198b Equal Opportunity Act 2011 (Vic) euthanasia 157b–158b, 167
empathy 2–3 268t definition of 157
as virtue 24 equal treatment, justice and 29 involuntary
employee equality before the law 70 definition of 158
case law and 253 erectile dysfunction 10b, 93b, 97b, passive euthanasia and 167–169
common law and 264–265 307b passive
compensation of 258 error correction, in PHCR 294–295, involuntary euthanasia and
definition of 250 294b 167–169
employment contract and 250 ethics suicide and 167–169
paramedic as 253–254 authority for 17 voluntary euthanasia and
unions and 255 beliefs about 3 167–169
vicarious liability and 254 in culture 16 withdrawal of treatment and
workers’ compensation for 258 definition of 1, 9–17 167–169
working hours for 257–258 difficult cases and 12–13 religion and 160
employer/employee relationship, ethical relativism in 15–17 transparency with 160
vicarious liability in 138 hedonism and 18–19 voluntary 160
employment contract helping people and 10–11 definition of 158
constructive dismissal from in Hippocratic Oath 2 passive euthanasia and 167–169
259–260 insensitivity to 12 as unlawful 167
definition of 250, 252–253 justice and 12 evaluate, in PRECARE 35, 43–45
dismissal from 258–260 knowledge of 4–5 express, in employment contract 253
duty of care in 260 law and 11–12, 41
express in 253 main theories of 17–25 F
good faith in 260 with mental health emergency fabricated or induced illness by carers
Greenfield agreements 255–257 230–231 (FII) 200–201
implied in 253 moral dilemmas and 13–15 facts
negligence in 260 morality and 9–10 for damage 152
termination of 258–260 in PRECARE 33–47 see also reconnaissance
unlawful discrimination with 260 see also consequentialist ethics; factual causation 138, 152
unlawful dismissal from 259 deontological ethics; reasonably foreseeable and 152
employment law 250–279 virtue ethics Fair Work Act 2009 (Cth)
Employment Relations Act 2000 (NZ) ethical codes 51–52 definition of 250
268t moral codes and 50 enterprise agreement and 254–255
EMT see emergency medical moral principles and 52 whistleblowing and 271t
technician professionals and 83 Fair Work Australia
end-of-life care 157–185 ethical dilemma enterprise agreement and 256
background for 159–161 alternative argument and 37 National Employment Standards
competence and 157 with child 116 of 256–257
court system and 164, 172 definition of 33 unlawful and 258
340
Index
fairness G H
definition of 70 Gardner, Ex parte 166 haloperidol 303t
justice and 28, 38 generosity 24 Hamilton v Nuroff (WA) Pty Ltd 261
as virtue 24 law and 51 Hand, Derrick 267
fall from horse, fracture from 120b as virtue 24 happiness
false imprisonment, torts of 131 genocide, of Jews 16–17 consequentialist ethics and 8
Family and Community Services Act Gillich v West Norfold Area Health hedonism and 18–19
1972 (SA) 210t–211t Authority 116–117, 118b, 119 maximising 20–21
family court 79 glyceryl trinitrate (GTN) 10b, 93b, should we maximise? 20–21
Family Court Act 1997 (WA) 97b, 307b harassment
210t–211t God, rights from 22 bullying and 265
child protection and, mandatory good faith definition of 250
reporting for 216t–220t in contract law 257 in workplace 269–271
Family Law Act (Cth) 114 in employment contract 260 Health and Disability Commissioner Act
on child abuse 186–187 in enterprise bargaining 257 1994 (NZ) 317–318, 326t
Family Law Act 1975 (Cth) Good Samaritan Act 140 Health and Disability Commissioner
child definition in 209t governance (Code of Health and Disability
child protection and 210t–211t circles of control and 51 Services Consumers’ Rights)
mandatory reporting for definition of 50 Regulations 1996 326t
216t–220t legal Health and Safety in Employment Act
fascism, ethical relativism and 17 ethical governance and 51–55 1992 (NZ) 264t
fatigue, capacity and 104 through laws 55 health care record see patient health
federal court 79 through principles 50 care record
female genital mutilation (FGM) through rule of law 50 Health Information Privacy Code
201 self-control and 50 287–288
in Africa 15b see also ethical governance; Health Practitioners Competence
case study of 202b self-governance Assurance Act 2003 (NZ) 317,
cultural relativism and 15, Greenfield agreements 255–257 326t
15b Greenwood, E 83 definition of 312
female virtues 24 GTN see glyceryl trinitrate paramedic registration under 323
FGM see female genital mutilation guardian Health Practitioners Disciplinary
FII see fabricated or induced illness by competence and 180 Tribunal (HPDT) 317–318
carers definition of 92 Health Records (Privacy and Access) Act
First Responder 323 as substitute decision maker 109 1997 (ACT) 286t
fit and proper person 85 Guardianship Act 1987 (NSW) 76 Health Records and Information Privacy
Flexner, Abraham 2, 4, 82–83 ACD and 180 Act 2002 (NSW) 62–63, 286t
forgiveness, as virtue 24 consent and 100t–101t Health (Drugs and Poisons) Regulations
four principles of bioethics 25–31 default decision maker and 166 1996 302, 302t
application of 29–31, 30t, 44t substitute decision makers and heart attack 12b
definition of 8, 31, 33 110t–111t heart disease 226
evaluate and 44 Guardianship and Administration Act hedonism 18–19
overdose and 29, 30b, 30t 1986 (Vic) Hegarty v Queensland Ambulance
PRECARE and 37, 38t, 44t consent and 100t–101t Service 265
as rules 25 substitute decision makers and helping people, ethics and 10–11
as standards 25 110t–111t heparin 303t
fracture, from fall from horse Guardianship and Administration Act hepatitis C
120b 1990 (WA) assault and 34b, 35
freedom from bias 70 ACD and 178 confidentiality about 34b, 35
freedom from torture or cruel, consent and 100t–101t imminent threat with 42
inhumane or degrading treatment substitute decision makers and medical information about 36
or punishment 77 110t–111t problem and 35
freedom of movement 77 Guardianship and Administration Act reconnaissance and 36
Freedom’s Law: The Moral Reading of 1991 (ACT) 100t–101t Hickie, H 230–231
the American Constitution Guardianship and Administration Act High Court 79
(Dworkin) 172 1993 (SA) duty of care and 134
Freegard (quoted) 38 ACD and 173t–182t Highmoor Cross, shootings at 267
friendship, as virtue 24 substitute decision makers and Hippocratic Oath 2
frusemide 303t 110t–111t HIV
futile treatment Guardianship and Administration Act medical information about 22
causation and 170 1995 (Tas) privacy and 22
death certificate and 170 consent and 100t–101t Hobbes, Thomas 70
definition of 158 substitute decision makers and Hoffman, Toni 270–271
in end-of-life care 170–171, 110t–111t Holocaust 16
170b–171b Guardianship and Administration Act ethical relativism and 17
law and 170 2000 (Qld) 100t–101t homeless 191
withdrawal of treatment and 170, guardianship regime 108 homicide see murder
171b Guardianship Tribunal 80 homosexuality, decriminalisation of 74
341
Index
honesty 24 insensitivity, to ethics 12 in mercy killing 168

Horgan, Stuart 267 integrity morphine and 28–29, 28b–29b
hospital policy 11b code of conduct and 54 overdose and 30t, 31
HPDT see Health Practitioners in Paramedics Australasia Code of PRECARE and 38
Disciplinary Tribunal Conduct 39–40, 59 as principle 55
HRRT see Human Rights interdisciplinary teamwork 3
Review Tribunal Intermediate Life Support (ILS) K
human rights 2, 61 323 Kant, Immanuel 22
of child 186 International Covenant on Civil and Kantianism see deontological ethics
law and 69, 74, 77 Political Rights (ICCPR) 78 Katelaris, A 159
moral rules from 21–22 International Labour Organization Kelly v TPG Internet 269
types of 77 Occupational Safety and Health Kempe, Henry 191
Human Rights Act 1993 (NZ) 268t Convention 1981 of 261 Kerridge, I 34–35, 41, 134–135
Human Rights Act 2004 (ACT) 77, of United Nations 258–259 kindness
210t–211t, 268t international law 74, 78 law and 51
Human Rights and Equal Opportunity intolerance see tolerance as virtue 24
Commission 77 intoxication knowledge
Human Rights Commission Act 2005 civil liability and 140–141 advantage of 2
(ACT) 210t–211t common law and 140–141 of code of conduct 4–5
Human Rights Review Tribunal duty of care and 140–141 of ethics 4–5
(HRRT) 327 infants and 203 of law 4–5
Hunter v New England Area Health negligence and 147, 148b of professional 3
Service 162–163 occupational health and safety and of regulations 2–3
Hursthouse, R 24 261 of rules 2–3
hydrocortisone 303t see also alcohol; drugs Koehler v Cerebos (Australia) Limited
hypoxia, capacity and 104 involuntary assessment, for mental 260
illness 229, 234–237 Koehn, D 34–35
I involuntary euthanasia Kuhse, H 168
ICCPR see International Covenant on definition of 158
Civil and Political Rights passive euthanasia and 167–169 L
illegal 67 Ipp Report see Review of the Law of Larrey, Dominique Jean 231–232
ILS see Intermediate Life Support Negligence Report last on, first off 269
immigrants 191 laws
child protection and 201 J for age of consent 214t
imminent threat, with hepatitis C 42 Japan, samurai code in 49–50 about alcohol 53
implied, in employment contract 253 Jehovah’s Witnesses from authority 69
implied consent 94–95 blood transfusion and 13b, 14, for child protection 203–207
implied powers 228–229 75b, 96b–97b, 104b compassion and 51
in loco parentis 115 car crash and 13b, 75b, 104b for consent 4–5, 94–102
definition of 92 refusal of treatment by 96b–97b constitution and 72
independent contract 254 Jews court system and 78–80
Indigenous Australians, property rights genocide of 16–17 creation of 71–74
of 76–77 rights of 22 current debates with 312–330
indirect discrimination 269 self-governance by 51 case study of 312b–313b
individual relativism 15 Ten Commandments and 22 definition of 1, 69–70
indoctrination, by religions 16 murder in 22 for disputes 69
industrial law 250–279 Johnstone, Megan-Jane 12 employment 250–279
list of specific legislation Johnstone v Bloomsbury Health ethics and 11–12, 41
274t–277t Authority 260 futile treatment and 170
infants Jonsen, AR 34–35 generosity and 51
alcohol and 203 judiciary how to read 80–81
drugs and 203 definition of 67 human rights and 69, 74, 77
intoxication and 203 see also court system industrial 250–279, 274t–277t
infectious diseases jurisdictions justice and 12, 28
Chief Health Officer and 42–43 consent and 99 kindness and 51
consequentialist ethics and 42 definition of 67 knowledge of 4–5
see also specific diseases guardianship regime in 108 legal governance through 55
Information Act 2002 (NT) 286t mental illness and 229 from legislation 72
Information Act 2006 (NT) 210t–211t negligence and 134 loyalty and 51
information technology, in workplace PHCR and 290 moral dilemmas and 14
270 justice of negligence 131
informed consent 97 definition of 28–29 philosophy of 69–70
agent for 26 equal treatment and 29 professional and 67–91
autonomy and 26–27, 30 ethics and 12 from regulations 69
refusal of treatment and 102–103 fairness and 28, 38 from rules 68–69
Injury Prevention, Rehabilitation and in four principles of bioethics 8, state governance through 51
Compensation Act 2001 25, 28–29, 37 sympathy and 51
(NZ) 259t law and 12, 28 types of 74–78
342
Index
see also regulations; rules; specific love, as virtue 24 Mental Health (Compulsory Assessment
categories; specific laws; specific Lowe, M 34–35, 41 and Treatment) Act 1992 (NZ)
types Lowns & Anor v Woods & Ors 139b 245
Law Reform Act 1995 (Qld) 113t Lowthian, J 159 Mental Health (Treatment and Care)
lawful correction 190 loyalty, law and 51 Act 1994 (ACT) 240
legal causation 138 Mental Health Act 1996 (Tas) 241,
legal governance M 243
ethical governance and 51–55 Mabo v The State of Queensland 76–77 Mental Health Act 2000 (Qld) 229,
through laws 55 magistrate’s courts 79 235–236, 241
legal standard of care 5 majority Mental Health Act 2007 (NSW) 241
legally bound 53–54 capacity and 113t Mental Health Act 2009 (SA) 243
legislation 72 consent and 113t Mental Health and Related Services Act
for ACD 173t–182t malaria 226 2009 (NT) 243
anti-smacking 190 male virtues 24 mental health emergency
applicable to paramedic practice mandatory reporting challenges of 230–231
87t–89t of child abuse 186–224 definition of 225
on child definition 209t child protection and 186–224 ethics with 230–231
for child protection 210t–211t legislation for 216t–220t Mental Health Review Tribunal 80
common law and 73–74 definition of 187 mental health services
consent and 100t–101t manslaughter 167 constitution and 228–229
definition of 67, 130 McPhee, J 34–35, 41 contemporary principles and
for drugs 302t Meadow, Roy 200 frameworks for 228–229
law from 72 medical agent see agent legislation for 240t–245t
for mental health services medical history, in PHCR 293 mental illness 225–249
240t–245t medical information assessment of 228, 231–237
on mental illness 227–228 about hepatitis C 36 capacity and 105b
for negligence 132–133, 133t about HIV 22 case study of 225b–226b,
for occupational health and safety privacy and 22 228b
264t Public Health Act 1997 and 42–43 challenges with 229–230
for paramedic 326t about STD 22, 23b decision making with 232–233
for PHCR 286t see also patient health care record definition of 225–228
regulations and 72–73 medical power of attorney duty of care and 139
for substitute decision maker ACD and 161, 174 general classifications of 227t
110t–111t Consent to Medical Treatment and involuntary assessment for 229,
for unlawful discrimination 268t Palliative Care Act 1995 and 234–237
for whistleblowing 271t 173t–182t jurisdictions and 229
for workers’ compensation 259t medical treatment legislation on 227–228
see also specific laws consent for 98 medical treatment for 231–237
LHMU v Queensland Ambulance definition of 175 paramedic and 231–237
Service 271–272 injury from case study of 234b
liability in Accident Compensation Act practice tips for 237–238
with ACD 163–164 2001 316–317, 327t public policy for 227–228
civil Code of Health and Disability voluntary assessment for 229
alcohol and 53–54 Services Consumers’ Rights see also specific illnesses
breach of duty of care and 152 and 317 mercy killing 168
contributory negligence and 141 life-sustaining 158 Messiha, Isaac 170b
intoxication and 140–141 for mental illness 231–237 methoxyflurane 303t
of Samaritans 53–54, 140 in PHCR 293 metoclopramide 303t
insurance for, for negligence 132 weigh up for 106 midazolam 303t
Powers of Attorney Act and 164 see also futile treatment; refusal of Ministerial Inquiry in respect of Certain
scope of 138 treatment; withdrawal of Mental Health Services 230
strict treatment minor
definition of 130 Medical Treatment Act 1988 (Vic) definition of 92
torts and 131 ACD and 173t–182t see also child
vicarious refusal of treatment and 165 Minors (Property and Contracts) Act
definition of 130, 138–139, 250 Medical Treatment (Health Directions) 1970 (NSW) 113t
employee and 254 Act 2006 (ACT) 72 Model Work Health and Safety
in employer/employee ACD and 173t–182t Bill 261–262, 264t
relationship 138 substitute decision makers and moral blindness 12
negligence and 138–139 110t–111t moral codes
waivers of 132 medications see drugs of culture 16
life-sustaining treatment 158 Medicines, Poisons and Therapeutic ethical codes and 50
lignocaine 303t Goods Regulation 2008 302t moral contract 3
Lister v Helsley Hall 254 Mendelson, D 136 moral dilemma
Livingstone v Raywards Coal Company mens rea 87 avoidance of 15
258 definition of 67 with deontological ethics 23
local courts 79 Mental Health Act 1986 (Vic) 139, ethics and 13–15
Lock, John 70 242 law and 14
343
Index
moral principles in Ambulance Service of NSW v O

ethical codes and 52 Worley 144 objective relativism 17
self-governance through 51 civil liability and 141 objectivism, ethical
moral rules defences for 153 beliefs and 16–17
deontological ethics and 8, 21 damages from 132, 137 rape and 16–17
from human rights 21–22 defences for 132, 141–142 tolerance and 16–17
morality definition of 130, 132–142 obsessive compulsive disorder 265
code of conduct and 54 duty of care and 132 occupational health and
criminal law and 74 in employment contract 260 safety 260–267
ethics and 9–10 hypothetical case for 151–153, with drugs 307–309, 308t
ethical governance and 51–55 151b intoxication and 261
self-governance and 50 intoxication and 147, 148b legislation for 264t
truth in 16 jurisdiction and 134 risk and 260–261
morality-as-self-governance 52 law of 131 Occupational Health and Safety Act
morphine legislation for 132–133, 133t 1986 (SA) 264t
justice and 28–29, 28b–29b liability insurance for 132 Occupational Health and Safety Act
for suicide 26b neighbour principle in 133 1991 (Cth) 264t
Motto, Mission and Values, of St John personal relationship and 133 Occupational Health and Safety Act
Ambulance WA 57 plaintiff for 132 2000 (NSW) 264t
Münchausen syndrome by proxy reasonable standard and 132 Occupational Health and Safety Act
187 remoteness and 137–138 2004 (Vic) 265
murder risk and 132 Occupational Safety and Health
end-of-life care and 167 standard of care and 132 Convention 1981 261
mercy killing and 168 torts of 130–156 off-duty paramedic 35
moral rule for 21–22 vicarious liability and 138–139 duty of care of 134, 139–140
in Ten Commandments 22 neighbour principle, in negligence emergencies and 139–140
Mussolini, Benito 17 133 as Samaritans 140
New Zealand Bill of Rights Act 119, Office for Children, Youth and Family
N 268t Support 210t–212t
naloxone 9b, 18b, 299b, 303t Newton, Isaac 55 on the balance of probabilities 67
National Action Plan for Mental Health nitrous oxide 303t opiate overdose 9b, 18b
2006-2011 238–239 no disadvantage test 258 charities and 21b
National Employment Standards, of no-fault compensation, for damages opinions, in culture 16
Fair Work Australia 256–257 315–316 Out of Hospital, Out of Mind!: A
National Inquiry into the Human Rights non-delegable duty of care 138 Report Detailing Mental Health
of People with Mental Illness 230 non-economic loss, as damages Services in Australia in 2002
National Mental Health Policy 230 137 230–231
National Privacy Principles (NPPs) non-emergencies overdose
285 with child 115 autonomy and 30, 30t
National Registration and consent and 99–102 beneficence and 30, 30t
Accreditation Scheme 82 non-interference, autonomy and case study of 299b
National Standards for Mental Health 26 charities and 21b
Services 229 non-maleficence 2 consequentialist ethics and 18, 18b
National Statement on Ethical Conduct beneficence and 28 four principles of bioethics and 29,
in Human Research 55 broken leg and 27b, 28 30b, 30t
Natural Death Act 1988 (NT) definition of 27 justice and 30t, 31
173t–182t in four principles of bioethics 8, non-maleficence and 31
natural justice 67 25, 27, 37 for suicide 26b
natural law theory 68 overdose and 30t, 31 overtime 251b, 257
Nazis PRECARE and 38
ethical relativism of 16 as principle 55 P
war criminals 14 non-organic failure to thrive 200 pain
Neal v Ambulance Service of New South Not for Service: Experiences of Injustice ACD and 167–168
Wales 147, 148b and Despair in Mental Health capacity and 104
causation in 153 Care in Australia 230–231 palliative care
court of appeal and 149–151 not-for-resuscitation orders 170 ACD and 161, 167–168, 175
district courts and 149 notifiable conditions, in Public Health definition of 173t–182t, 175
necessity, principle of 99 Act 1997 43, 46t–47t Palmer Report 230
neglect, of child 199–200 NPPs see National Privacy paramedic
negligence 27 Principles accountability of 84
alcohol and 131b NSW Attorney-General’s Department v child abuse and 193–194
with anaphylactic reaction 68b Miller 270 court system and 84
calculus of 134 NSW Health Guidelines, on at dangerous situations 267
case study for 142–151 end-of-life care 179 disciplinary actions against 82–84
causation and 132, 137–138 NSW v Fahy 265 as employee 253–254
common law and 132–133, 135, Nuremberg defence 14 exposure to trauma by 265
264–265 Nurses and Midwives Professional history of 314–315
contributory 141–142 Standards Committee 80 legal use of term for 81–82
344
Index
legislation for 326t inconsistencies in 289b Powers of Attorney Act 1998 (Qld)
mental illness and 231–237 jurisdictions and 290 ACD and 177
case study of 234b legislation for 286t statutory health attorney and 177
as professionals 82–84 medical history in 293 PPE see personal protective equipment
registration for 82 medical treatment in 293 PRECARE
debate over 323–325 other considerations with ACD and 162
as volunteers 314–315 293–294 alternative argument in 40–41, 44
as witnesses 280b–281b ownership of 284–285 autonomy and 38
Paramedic Professional Competency patient access to 286–288 beneficence and 38
Standards 9 presenting problem in 292–293 code of conduct in 39–40, 44
Paramedics Australasia 83–84 privacy with 285 decision making and 34–45
Code of Conduct of 59–60 provisional diagnosis in 292–293 drugs in 299–311
accountability in 39–40, 60 patient–doctor confidentiality 22 ethics in 33–47
competence in 39–40, 60 Paton v British Pregnancy Advisory evaluate in 35, 43–45
confidentiality in 39–40, 60 Service 186 four principles of bioethics and 37,
consent in 39–40, 60 PD2005_362 62–63 38t, 44t
ethical review in 39–40, 60 Pellegrino, ED 4–5, 34–35 justice and 38
integrity in 39–40, 59 permanent vegetative state 172 non-maleficence and 38
privacy in 42 persistent vegetative state 173 problem in 35–36
research in 39–40, 60 Personal Injuries Act 2003 (NT) 133t reconnaissance in 35–37
respect in 39–40, 60 Personal Injuries (Liabilities and regulations in 35, 41–44
responsibility in 39–40, 60 Damages) Act 2003 (NT) 326t precedent 73–74
trust in 42 personal integrity, as virtue 24 common law and 73–74
paranoid schizophrenia 105b personal protective equipment (PPE) definition of 68, 130
parens patriae 116 263–264 doctrine of 73
definition of 92 personal relationship prescription, for drugs 305–306
parents consent and 96 prescription animal remedy 301t
child abuse and 195 with default decision maker 166 prescription only medicine 301t
consent by 114 negligence and 133 presenting problem, in PHCR
refusal of treatment by 115–116, responsible person in 181 292–293
117b see also blood relatives primary commitments 61
rights of, in common law 114 persuasion, self-regulation and 51 principles
PAS see Privacy, Authentication and pharmacist only medicine 301t application of 61–65
Security Guide pharmacy medicine 301t as bare value terms 55
passive euthanasia PHCR see patient health care record as basic assumptions 55
involuntary euthanasia and physical child abuse 194–195 in code of conduct 60–65
167–169 physician-assisted suicide 160 definition of 48
suicide and 167–169 plaintiff ethical 55
voluntary euthanasia and 167–169 damage to 152 in ethical governance 55–56
withdrawal of treatment and definition of 130 governance through 50
167–169 duty of care for 134 moral
Patel, Jayant 270–271 for negligence 132 ethical codes and 52
patients poisons, schedules for 300, 301t self-governance through 51
air transport for 319b Poisons Act 1964 (WA) 302t of necessity 99
autonomy of 5 Poisons and Dangerous Drugs Act 1983 neighbour 133
at centre of care 3 (NT) 302t NPPs 285
decision making and 5 Poisons and Dangerous Drugs Regulation professional governance through
identification of 292 2004 302t 51
leaving unattended 319b Poisons and Therapeutic Goods Act 1966 State Service Principles, of
PHCR access for 286–288 (NSW) 302t Ambulance Tasmania 57
case study for 287b Poisons and Therapeutic Goods theory 69
patient health care record (PHCR) Regulation 2002 302t United Nations Principles for the
280–298, 297f Poisons and Therapeutic Goods Protection of People with Mental
access to 285–289 Regulation 2008 300–302, Illness and for the Improvement
assessment in 293 304 of Mental Health Care
conditions in 292–293 Poisons Regulation 2008 300–302, 227–229
confidentiality with 282, 285 302t see also four principles of bioethics
contents of 289–294 Poisons Regulations 1965 302t privacy
court system and 287 political rights 77 autonomy and 26
critical information in 292 pornography child protection and 207
current medications in 293 child abuse and 187b, 195–196 deontological ethics and 22
definition of 280, 282–283 in workplace 270 HIV and 22
drugs in 293 positivism 69 medical information and 22
electronic records for 283–284 post-traumatic stress disorder 265 in Paramedics Australasia Code of
error correction in 294–295 Powers of Attorney Act (Qld) Conduct 42
case study of 294b liability and 164 with PHCR 285
important and relevant information substitute decision makers and STD and 22, 23b
in 292 110t–111t see also specific related laws
345
Index
Privacy, Authentication and Security public policy 5 registration, for paramedic 82

Guide (PAS) 285 for mental illness 227–228 debate over 323–325
Privacy Act 1988 (Cth) 42, 285, 286t, Public Sector Management Act 1994 regulations
287 (ACT) 58–59 compliance to 3
Privacy Act 1993 (NZ) 285, 286t, Public Service Act 1999 (Cth) 271t enforcement of 51
287–288 punishment evaluate and 44
Privacy Act 1998 (Cth) 285 corporal 190 knowledge of 2–3
Privacy Amendment (Private Sector) Act criminal law and 74 law from 69
2000 (Cth) 285, 287 freedom from 77 legislation and 72–73
Privacy and Personal Information in PRECARE 35, 41–44
Protection Act 1998 (NSW) Q Rehnquist, William 172
62–63 quality of relationship, code of relativism
privity of contract, doctrine of 254–255 conduct and 60–61 cultural
problem Queensland Public Service, Code of definition of 15
ethical dilemma and 35 Conduct 2010 of 57 female genital mutilation and 15,
hepatitis C and 35 Qumsieh v Guardianship and 15b
in PRECARE 35–36 Administration Board 166 ethical 15–17
professional abortion and 16
boundaries R authority and 16
with blood relatives 48b–49b R v Hood 168 beliefs and 16
sex and 48b–49b R v Maxwell 168 fascism and 17
code of conduct and 4 R v Terry 190, 195 Holocaust and 17
common traits of 4 Rachels, J 16 of Nazis 16
competence of 68 Rachels, S 16 tolerance and 16–17
definition of 1, 134–135 Racial and Religious Tolerance Act 2001 individual 15
duty of care of 134–135, 151 (Vic) 268t objective 17
governance 51 Racial Discrimination Act 1975 (Cth) religion
knowledge of 3 268t consent and 96
law and 67–91 Racial Vilification Act 1996 (SA) 268t euthanasia and 160
misconduct 85 rape 16–17 indoctrination by 16
obligations, of doctors 4 Rau, Cornelia 230 remoteness
paramedic as 82–84 reasonable chastisement 190 definition of 137–138
prudence 54 reasonable direction 53–54 negligence and 137–138
prohibited substance, in poison reasonable force 190 renal failure 312b–313b
schedule 301t reasonable person 53–54 Report of an Inquiry Conducted by The
promethazine 303t sexual harassment and 269–270 Honourable D G Steward into the
property rights, of Indigenous reasonable standard, negligence and Allegations of Official Misconduct
Australians 76–77 132 at the Basil Stafford Centre 230
Protected Disclosures Act 2000 (NZ) reasonably foreseeable, factual research, in Paramedics Australasia
271t causation and 152 Code of Conduct 39–40, 60
Protection and Personal Property Rights reasonably practicable 261 respect
Act 1988 (NZ) 110t–111t standards for 262 in Paramedics Australasia Code of
provisional diagnosis, in PHCR reconnaissance Conduct 39–40, 60
292–293 definition of 33 as virtue 24
Public Administration Act 2004 (Vic) ethical dilemma and 36 responsibility
57 hepatitis C and 36 for child protection 189–191
Public Advocate Act 2005 (ACT) in PRECARE 35–37 in Paramedics Australasia Code of
210t–211t recreational activities Conduct 39–40, 60
public good 61 voluntary assumption of risk with responsible person
Public Health Act 1997 (Tas) 72 142 for child 180
medical information and 42–43 waivers of liability for 132 competence and 180
notifiable conditions in 43, 46t–47t reflux 322b definition of 43
responsible person and 43 refusal of treatment 92–129 in personal relationship 181
on tobacco 262–263 ACD and 175 Public Health Act 1997 and 43
Public Health Act 2005 (Qld) by adult 96b–97b, 105b, 107b as substitute decision maker 109
210t–211t beliefs and 105 see also default decision maker
child protection and, mandatory capacity and 103–107 reteplase 303t
reporting for 216t–220t by child 119–120 Review of the Law of Negligence Report
Public Interest Disclosures Act 1994 for child 115–116 132
(ACT) 271t competence and 165 Reynolds, L 83–84
Public Interest Disclosures Act 2002 decision making and 102 rights
(Tas) 271t informed consent and 102–103 beliefs about 22
Public Interest Disclosures Act 2003 by Jehovah’s Witnesses 96b–97b in Christianity 22
(WA) 271t Medical Treatment Act 1988 and duties and 21–22
Public Interest Disclosures Act 2008 165 from God 22
(NT) 271t by parents 115–116, 117b of Jews 22
Public Interest Disclosures Act 2010 for specific situation 103 to patient–doctor confidentiality
(Qld) 271t validity of 102 22
346
Index
universality of 22 through moral principles 51 Stevens v Brodribb Sawmilling Co Pty

see also specific types morality and 50 254
right to be heard 70 morality-as-self-governance 52 Stewart Report 230
right to life, liberty and security of self-regulation 3 strict liability
person 77 persuasion and 51 definition of 130
right-based ethics 22 Sercye, Christopher 11b torts and 131
Rights of the Terminally Ill Act 1995 servility, as female virtue 24 Stuart v Kirkland-Veenstra 139
(NT) 159–160 sex students, standard of care for 135
rigidness, deontological ethics and 22 age of consent for 197, 214t subjectivism see ethical relativism
risk professional boundaries and substitute decision maker
capacity and 136–137 48b–49b agent as 109
duty of care and 133 self-asphyxiation and 62b–63b appointment of 108–109
negligence and 132 sex abuse, of child 187, 194–197 capacity and 107–109
occupational health and safety and Sex Discrimination Act 1984 (Cth) definition of 92, 158
260–261 268t, 269–270 legislation for 110t–111t
unacceptable risk of apprehended sexual harassment 269–270 terms for 109
harm, for child abuse 204 Shaban, R 232–234 times for decision making 109
voluntary assumption of 141–142 Shafer-Landau, R 15 types of decisions to make 109
common law and 141–142 shootings, at Highmoor Cross 267 sudden infant death syndrome 203
with recreational activities 142 Siegler, M 34–35 sufficient understanding, for capacity
Road Transport Act 74 significant injury, for damages 137 106
Rogers v Whitaker 80–81, 81f, 135, Singer, P 168 suicide 158b–159b
136b skills, duty of 135, 253 ACD and 167
Roman Empire, code of conduct in snake bite 117b aiding and abetting 167–169
49 social contract theory 70 bullying and 265
Rousseau, Jean-Jacques 70 social media 270 common law and 169
Royal Commission on Hospital and social rights 77 criminal law and 169
Related Services 230 St John Ambulance WA morphine for 26b
rules Code of Practice of 57 overdose for 26b
compliance to 3 Motto, Mission and Values of 57 passive euthanasia and 167–169
four principles of bioethics as 25 standards Supreme Court 79
knowledge of 2–3 four principles of bioethics as 25 Administrative Decisions Tribunal
law from 68–69 objective relativism and 17 and 76
moral for reasonably practicable 262 surrogate decision maker
deontological ethics and 8, 21 for unlawful dismissal 259 ACD and 165–167
from human rights 21–22 see also code of conduct; specific types autonomy with 165
virtue ethics and 23 Standard for the Uniform Scheduling of lack of 165–167
rule of law 50 Drugs and Poisons (SUSMP) 300 SUSMP see Standard for the Uniform
rule of optimism 204–205 standard of care Scheduling of Drugs and Poisons
Russell, Bertand 55 decision making and 136 sympathetic ophthalmia 136b
ethical 5 sympathy 23
S explanation of 134–137 law and 51
SA Ambulance Service, Code of Ethics giving of information and 135–137 as virtue 24
and Conduct 2010 of 56 legal 5 systematic body of theory,
Safe Work Australia Act 2008 (Cth) negligence and 132 professionals and 83
264t for students 135
Safety, Rehabilitation and Compensation tests for 132 T
Act 1988 (Cth) 264t standard of proof, in civil law 75 Tasmanian Palliative Care
salbutamol 303t state governance, through laws 51 Management Guidelines,
Samaritans 231–232 State Health Act 1911 (WA) 285 end-of-life care and 181
civil liability of 53–54, 140 State Service Act 2000 (Tas) 57 tattoo, of ‘do not resuscitate’ 12b
duty of care of 140 State Service Code of Conduct and teleological ethics see consequentialist
off-duty paramedic as 140 58 ethics
samurai code, in Japan 49–50 State Service Code of Conduct Templeton (Lord) 116
schizophrenia 105b, 228, 230 of Ambulance Tasmania 57 Ten Commandments 22
Schloendorff v society of New York contents of 58 murder in 22
hospital 163b State Service Act 2000 and 58 tenecteplase 303t
scope of liability 138 State Service Principles, of Ambulance terminal illness 158
Secretary, Department of Health and Tasmania 57 termination
Community Services v JWB and statute see legislation of employment contract 258–260
SMB 117 statutory health attorney workers’ compensation for 258–259
self-asphyxiation, sex and 62b–63b Powers of Attorney Act 1998 and Termination of Employment
self-control, governance and 50 177 Convention 1982 258–259
self-determination, autonomy and 26 as substitute decision maker 109 tests
self-development 3 Staunton, P 25, 34–35, 43 BOOT 258
self-evaluation 55 STD ‘but for’ 137–138
self-governance medical information about 22, 23b no disadvantage 258
by Jews 51 privacy and 22, 23b for standard of care 132
347
Index
Therapeutic Goods Act 1989 (Cth) 300 definition of 250 withdrawal of life-sustaining measure
Thomasma, DC 34–35 direct 269 177
threats, in workplace 270–271 with employment contract 260 withdrawal of treatment
tobacco indirect 269 futile treatment and 170, 171b
Public Health Act 1997 on 262–263 legislation for 268t passive euthanasia and 167–169
in workplace 262–263, 263b in workplace 267–269 witnesses, paramedic as 280b–281b
tolerance unlawful dismissal, from employment WK v Public Guardian 166
abortion and 17 contract 259 women 191
beliefs and 16–17 unsatisfactory professional performance virtues of 24
culture and 17 84–85 see also female genital mutilation
ethical objectivism and 16–17 utilitarianism see consequentialist ethics Work Health and Safety Act 2011
ethical relativism and 16–17 (ACT) 264t
torts 76 V Work Safety Act 2008 (ACT) 264t
of assault 131 VACIS see Victorian Ambulance workers’ compensation 258
of battery 131 Clinical Information System for damages 258
criminal law and 131 values, in code of conduct 60–61 legislation for 259t
definition of 130–131 veracity, autonomy and 26 for termination 258–259
of false imprisonment 131 verbal consent 95 Workers’ Compensation Act 1951 (ACT)
of negligence 130–156 Viagra 10b, 307b 259t
strict liability and 131 vicarious liability Workers’ Compensation Act 1987
torture, freedom from 77 definition of 130, 138–139, 250 (NSW) 259t, 264t
toxic shock syndrome 321b employee and 254 Workers’ Compensation Act 1988 (Tas)
transparency in employer/employee 264t
common law and 73–74 relationship 138 Workers’ Compensation and Injury
definition of 70 negligence and 138–139 Management Act 1981 (WA)
with euthanasia 160 Victorian Ambulance Clinical 259t
trauma Information System (VACIS) Workers’ Compensation and
capacity and 104 283–284 Rehabilitation Act 2003 (Qld)
paramedic exposure to 265 definition of 280 259t, 264t
treatment see medical treatment virtue ethics 23–25 Workers’ Rehabilitation and
trespass 92 alternative argument and 41 Compensation Act 1986 (SA)
tribunals 79–80 blood relatives and 25, 25b 259t, 264t
see also specific tribunals celebrities and 24b Workers’ Rehabilitation and
trust 3 definition of 8, 24, 31, 41 Compensation Act 1988 (Tas)
in Paramedics Australasia Code of objections against 24–25 259t
Conduct 42 rules and 23 working hours, for employee
as virtue 24 universality in 24 257–258
truth, in morality 16 volenti non fit injuria see voluntary Working with Children (Criminal
tuberculosis 226 assumption of risk Record Checking) Act 2004 (WA)
voluntary ACD 162–163 210t–211t
U voluntary assessment, of mental Working with Children Act 2005 (Vic)
unacceptable risk of apprehended illness 229 210t–211t
harm, for child abuse 204 voluntary assumption of risk 141–142 workplace
understanding, for informed consent common law and 141–142 bullying in 269–271
26 with recreational activities 142 culture of 271–272
unions voluntary decision, for consent 95–96 definition of 262
employee and 255 voluntary euthanasia 160 email in 270
recognition of 258 definition of 158 harassment in 269–271
United Nations, International Labour passive euthanasia and 167–169 information technology in 270
Organization of 258–259 as unlawful 167 pornography in 270
United Nations Convention on the volunteers, paramedic as 314–315 safety assessment for 265–267
Rights of the Child 186, 189 vulnerable groups 191 threats in 270–271
United Nations Principles for the tobacco in 262–263, 263b
Protection of People with Mental W unlawful discrimination in
Illness and for the Improvement of waivers, of liability 132 267–269
Mental Health Care 227–229 weigh up, of treatment risk and Workplace Health and Safety Act 1995
Universal Declaration of Human benefits 106 (Qld) 264t
Rights 22 Whistleblowers Protection Act 1993 (SA) Workplace Injury Management and
universality 271t Workers Compensation Act 1998
of rights 22 Whistleblowers Protection Act 2001 (NSW) 259t
in virtue ethics 24 (Vic) 271t WorkSafe Victoria v Map Foundation
unlawful whistleblowing 270–271 265
definition of 68 legislation for 271t written consent 95
Fair Work Australia and 258 Whitehead, Alfred North 55 Wrongs Act 1958 (Vic) 133t, 326t
FGM as 201 Wighton v Arnott 326t
voluntary euthanasia as 167 Williams, B 2–3 Y
unlawful discrimination Winslade, WJ 34–35 Young Offenders Act 1994 (SA)
child protection and 202–203 wisdom, as virtue 24 210t–211t
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• Multiple choice questions • Image collection

• Case studies • PowerPoints

• Short answer questions

• Additional case studies

Sydney Edinburgh London New York Philadelphia St Louis Toronto

Elsevier Australia. ACN 001 002 357

This edition © 2013 Elsevier Australia

National Library of Australia Cataloguing-in-Publication Data

Author: Townsend, Ruth.

Publisher: Melinda McEvoy

2 Questions for asking in front of the mirror where personal judgements

Stephen Bartlett LLB, LLM

Bronwyn Betts ASM, LLM, LLB, BAppSc(Nursing), RN

J Joy Cumming BA, BEdSt, Med, PhD, JD, GradDipLegalPractice

Kate Diesfeld BS, JD

Peter Jurkovsky LLB(Hons), Grad Cert Higher Education,

Peter Lang BHlthSc(PreHospCare), BNurs, DipParaSc, MACAP

Morgan Luck BA, BComm, BA(Hons), MA, PGCE, PhD

Ramon Z Shaban RN, EMT-P, CICP, PhD, FRCNA

Brian Steer BA(Hons), ThA, DipEd, BParamedStudies

Brian Stoffell BA(Hons1), LLB(Hons1), PhD

Ruth Townsend BN, LLB, LLM, GradDipLegalPrac, GradCertVET, DipParaSc

Claire Wyatt-Smith BA, MEd(Research), PhD

Lisa Bowerman MHlthSc(Ed), BHlthSc(Pre-hospital Care)

Lucinda Mayor AssDipApSc, AdvDipMICP, GradCertTertEd, BParamedicStud,

Joe Monk, BSc, MOHS, CPSIA

Kim Walker RN, PhD

Alan Wilson ICP, DipTeach, DipNurs, GradCert Intensive Care Paramedics,

There is no doubt that health care is a complex system composed of a myriad of

• ensuring that students know the main professional obligations of doctors in

challenging situations.13 Knowledge of both ethics and law provides paramedics

What is ethics? And what isn’t it?

Misunderstanding: ‘Acting ethically just means helping people’

Misunderstanding: ‘Acting ethically just means following the law’

To illustrate this point, consider Case 2.2 provided by Derse.3

Misunderstanding: ‘Acting ethically is only something to worry about

Misunderstanding: ‘Acting ethically is about avoiding moral dilemmas’

Misunderstanding: ‘Acting ethically is relative’

To help illustrate ethical relativism, consider Case 2.6.

In short, a paramedic who rejects ethical relativism is no more in danger of

The three main ethical theories

attempt to classify actions as either morally right or wrong, in an objective sense.

Objection: Does consequentialist ethics demand too much from us?

Objection: Should we always try to maximise happiness?

Consequentialist ethics asserts that whether or not an action is ethical depends

Objection: Is deontological ethics too rigid?

Objection: What do we do in the meantime?

The four principles of bioethics

What is the principle of autonomy?

What is the principle of non-maleficence?

What is the principle of beneficence?

The principles of beneficence and non-maleficence sometimes need to be weighed

What is the principle of justice?

Applying the four principles

With respect to the principle of non-maleficence, it seems action 1 again performs

Finally, by seriously considering hypothetical cases, you should be better prepared

The PRECARE decision-making model

Alternative: consider an argument for an alternative course of action.

R is for regulations: consider the relevant legal regulations.

Ethics – Consider the four principles of bioethics.

How ethical governance is distinguished from morality and legal governance

Principles and the role of moral principles in ethical governance

Given this, principles should be understood as accepted postulates, values or

Applied Paramedic Law and Ethic - Townsend & Luck

Applied Paramedic Law and Ethic - Townsend & Luck

• Multiple choice questions • Image collection

• Case studies • PowerPoints