EXPLORE PAST ISSUES
Evidence
Vol. 14 No 2 | Winter 2012
Women's Health
Legal implications of fatigue


This article is 8 years old and may no longer reflect current clinical practice.

In the medico-legal arena, fatigue is more than just feeling tired or drowsy: it affects performance, which provides the foundation for a civil claim for damages and, arguably, might become the basis of a criminal charge.

Not many years ago, clinicians took pride in the ability to work 60–80 hours a week without any noticeable incidence of adverse outcomes. Some of us are still making such a claim and with good reason, as such claims are usually true. The sentinel change is not the clinical outcomes, but rather society’s perspective towards medical outcomes measurement and fatigue-management issues. Any doubts regarding this shift in societal perspective should be quickly dispelled by the reminder that the State of Queensland sentenced a technically competent surgeon to seven years in prison for the statutory crime of failing to use reasonable care while undertaking to administer surgical or medical treatment. Now consider the wording of the 2004 Occupational Health & Safety Act, which leaves little room for interpretation. Section 21(1) Employer’s duty:

  • to provide and maintain, so far as reasonably practicable, a working environment that is safe and without risk to health.

Section 25 provides employees duties to take care of their own health and safety and the safety of others. Section 25 says that while at work, an employee must:

  • take reasonable care for his or her own health and safety;
  • 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
  • co-operate 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.

If you think you are immune to these regulations because you are self-employed, or functioning as a contractor, Section 24 says:

  • a self-employed person must ensure, so far as is reasonably practicable, that persons are not exposed to risks to their health or safety arising from the conduct of the undertaking of the self-employed person.

If you are an unpaid volunteer, Section 32 outlines your duty not to recklessly endanger persons at workplaces. A person who, without lawful excuse, recklessly engages in conduct that places or may place another person who is at a workplace in danger of serious injury is guilty of an indictable offence and liable to:

  • in the case of a natural person, a term of imprisonment not exceeding five years, or a fine not exceeding 1800 penalty units, or both; and
  • in the case of a body corporate, a fine not exceeding 9000 penalty units.

There exists a combination of case law precedent and legislated regulations that directly affects every workplace in Australia. I can describe the response taken by Queensland Health: ‘When a medical practitioner engaged by Queensland Health is required by Queensland Health to continue working due to operational requirements, the medical practitioner is or may become fatigued. Legal assistance, representation and indemnity are to be provided by Queensland Health at the request of the practitioner, when the incident subject to the claim would not have, on the balance of probabilities, occurred but for the fatigue. Written advice from an agreed independent fatigue management expert may be used to assess whether fatigue existed.’

Corporate administrators will insist that this means there is absolutely nothing to be worried about, as the fatigued clinician is covered by indemnity insurance. These same administrators do not want to talk about the possibility that the clinician might become excluded from coverage. Clause 7.3 states that a medical practitioner is not to be entitled to indemnity from a claim when:

  • The medical practitioner’s conduct that is the subject of the claim has been proven, to the satisfaction of Queensland Health, to constitute ‘wilful neglect’.
  • The medical practitioner has been convicted of a criminal offence arising from the conduct that is the subject of the claim (except where the conviction has arisen out of an incident subject to section 7.6).

This seems as though the clinician is truly indemnified, as long as any fatigue is ‘due to operational requirements’, even though nobody seems to have defined what constitutes operational requirements. Assume for a moment that this employer might want an escape clause in order to distance themselves from any perceived malpractice event in the media. Such an escape clause would easily be found in the term ‘wilful neglect’. Wilful neglect might be defined as an individual’s failure to abide by the rules, regulations, policies, procedures, guidelines and/or protocols relating to the mitigation of fatigue risk. After all, an employee’s obligation to follow the policies and procedures of the employer is clearly agreed by the contract of employment. But at the time of this writing, Queensland Health references 811 pages of supporting documents pertaining to workplace fatigue. If there is a violation any one of those 811 pages, the employee might be considered to be committing wilful neglect. Remember, most of these documents are coming from the same source that said doctors could mitigate fatigue by drinking six cups of coffee while working fatigued.

Introduced on 1 July 2010, AHPRA has enacted a mandatory reporting obligation:

  • Section 140 of the National Law requires that a registered health practitioner must notify the Board if, in the course of practising their profession, they form a reasonable belief that another registered health practitioner has behaved in a way that constitutes ‘notifiable conduct’.

Notifiable conduct is defined as when a practitioner has:

  1. practised the profession while intoxicated by alcohol or drugs;
  2. engaged in sexual misconduct in connection with their profession;
  3. placed the public at risk of substantial harm in their practice because they have an impairment; or
  4. placed the public at risk of harm during their practice because of a significant departure from professional standards.

Could it be possible that working while fatigued is a deviation from professional standards? In order to address this question, we must explore the relevant standards from a variety of professional bodies that have impact upon our practices. Starting with the Australia Medical Association (AMA) guidelines regarding fatigue (see Table 1), I submit that relatively few of us are consistently in the left-side column of ‘lower risk’. Most of us are routinely (multiple times per month) working in the centre column of ‘significant risk’. I will publically admit to having worked in the right-side column of ‘higher risk’ at least ten or 20 times per year, pretty much every year for the last 20 years. The primary issue is that society will no longer accept this behaviour as an explanation for any fatigue-related error.

Table 1. National Code of Practice – Hours of Work, Shiftwork and Rostering for Hospital Doctors (AMA).

Lower risk Significant risk Higher risk
Less than 50 hours worked
No more than 10 consecutive hours in any one period
Scheduled shift hours worked
Three or more short breaks taken during shift
Little or no overtime
Rostered for on-call less than 3 days in 7 days
No night shift or extended hours into night shift
50 to 70 hours worked
Up to 14 consecutive hours in any one period
Scheduled shift plus part of next shift worked One or two short breaks taken during shift More than 10 hours overtime
Rostered for on-call duty three days or more in a seven-day period
At least two night shifts or extended hours into night shift
More than 70 hours worked
14 or more consecutive hours worked at least twice
A full shift cycle worked of at least 24 hours. No short breaks taken during shift
More than 20 hours overtime
Rostered on-call continuously for more than a seven-day period
At least three night shifts or extended hours into night shift

 

Referring to the RANZCOG College statement (July 2009), ‘Individual practitioners and Departments are also encouraged to familiarise themselves with the AMA’s National Code of Practice – Hours of Work, Shiftwork and Rostering for Hospital Doctors’. All of the medical colleges in Australia have guidelines that are either in agreement with the AMA or are more restrictive, in an effort to ensure patient safety.

It is noteworthy to look at other, non-medical professions in order to establish the concept of professional standards. The Australia Marine Pilots Association, supervising the moving of commercial cargo ships into and out of Australia’s harbours, has a definitive program for avoiding fatigue at the workplace. The following list of workplace standards is somewhat extensive, but they have delineated solutions to fatigue-related issues facing us in the medical arena.

  • A period of marine pilotage duties shall be preceded by a rest period, at home or the pilot’s place of residence, of at least:
    (a) nine consecutive hours embracing the hours between 2200 and 0600 local time; or
    (b) 12 consecutive hours.
  • A period of marine pilotage duties shall not exceed 12 hours in any 24 consecutive hours.
  • A marine pilot shall not be assigned to a ship where it is anticipated that the movement will be of a duration such that the pilot will be required to perform marine pilotage duties for a period of duty of more than 12 hours.
  • Where a pilotage act has commenced…and the movement is delayed for reasons beyond the pilot’s control the period of pilotage duty may be extended beyond 12 hours.
  • Where extensions have been made…the pilot shall receive a rest period of 12 hours plus four hours for each hour or part thereof that the pilot’s period of duty exceeds 12 hours.
  • Where extensions have been made, the period of marine pilotage duties shall not exceed 16 hours.
  • Where a pilot is required to perform a marine pilotage act or acts, a minimum of four hours marine pilotage duties is recorded irrespective of the actual hours worked.
  • A marine pilot shall not be required to perform marine pilotage duties in excess of seven consecutive days without an uninterrupted rest period of not less than 24 hours.
  • A marine pilot shall not be required to perform marine pilotage duties in excess of 120 hours in any three-week period.
  • Where a pilot is on standby, a minimum of four hours marine pilotage duties is recorded irrespective of the actual hours worked.
  • A marine pilot roster period shall be preceded by a rest period of not less than two days for each seven days worked in the preceding roster period.
  • A marine pilot shall not be rostered on duty for more than 15 consecutive days.
  • A marine pilot shall not perform pilotage acts on more than 200 days per annum.
  • All marine pilots to whom this fatigue management plan applies shall keep a log of the hours worked and shall inform their employers of their rest requirements.
  • The limitations on hours may be exceeded in cases of emergency and in all circumstances where the safety of life is concerned.

One of the most amazing aspects of this fatigue policy is that it was first presented in 1978!

In the USA, the Federal Aviation Administration (FAA) is attempting to avoid fatigue in the cockpit. A summary of the FAA limitation on actual flying hours (not hours of work time) is that a crewmember must not exceed total flying time maximum of: 15-hour duty-day, with eight hours’ rest between required work periods; 30 hours in any seven consecutive days; 100 hours in any calendar month; and 1000 hours in any calendar year.

The FAA regulations go on to state that there must be pre-flight rest for scheduled flight during the 24 hours preceding the completion of any flight segment:

  • Nine consecutive of hours of rest for less than eight hours of scheduled flight time;
  • Ten hours of rest for eight hours or more, but less than nine hours, of scheduled flight time; or
  • 11 hours of rest for nine hours or more scheduled flight time.

Considering airline pilots and marine pilots have developed duty-day limitations that have been approved or mandated by the government, we can assume these limitations represent the gold standard of human endurance in potentially dangerous occupations. It is only logical for doctors to acknowledge the comparison.

Another source of authority regarding fatigue management, especially significant to the plaintiff’s solicitor or to the prosecution, would be the previously mentioned fatigue management experts. Prof Drew Dawson is the Director of the Centre for Sleep Research at the University of South Australia. This Centre is within the School of Psychology. Prof Dawson’s group has generated a variety of intriguing and potentially meaningful experimental results. As an example, an article titled Fatigue, Alcohol and Performance Impairment, published in 1997, indicated that each hour of wakefulness is comparable to an accumulation of 0.004 rise in blood alcohol levels. After 14 hours of wakefulness, there was an impairment of the subjects’ motor skills performance equivalent to a blood alcohol level of 0.056. This means that fatigue can cause deterioration in motor function that would preclude the driving of an automobile anywhere in Australia, if it were induced by alcohol.

As a corollary to fatigue-verses-alcohol in loss of motor function, research demonstrates that perhaps the first human trait to be lost to fatigue is ‘judgement’. So after a long night on-call, when your supervisor asks if you are feeling well enough to finish the day of scheduled clinics or the theatre list, choose your answer wisely. If you have been awake for 16 hours or more, the only appropriate answer to be given to such a question is: ‘Don’t ask me, I am too fatigued to judge.’ Once again, the effect of fatigue might be worse than having a shot of spirits with breakfast. This emphasises that the total number of hours awake (without a period of adequate sleep) is more important than the number of hours slept during the last sleep period.

One of the complexities in requesting evidence-based medicine before important decision-making is that the evidence is often contrary to our previously held biases and beliefs. Consider a US military opinion paper titled Stimulant Use in Extended Flight Operations. This study concluded: ‘In light of their value to mission accomplishment – especially in the absence of demonstrable negative effects – the ban on ampethetamines should be rescinded.’ This was followed in 2000 by Performance Maintenance During Continuous Flight Operations: A Guide For Flight Surgeons. The US military differentiated between the concepts of ‘continuous operations’ versus ‘sustained operations’. Continuous operations: extending over 24 hours at a ‘normal’ rate, not necessarily longer hours per individual; workers are relieved at the end of a shift and return later; the individual may work different hours that may conflict with the circadian rhythm; and sleep may be intermittent, interrupted and un-restorative. In contrast, sustained operations: involve individual continuous performance longer than 24 hours; work is continued until a goal is reached; and sleep deprivation is common.

This concept directly relates to a hospital. Although the operation of a hospital is continuous, the individual surgeon must have the opportunity to obtain necessary rest. However, when on-call for a three- or four-day weekend, the individual’s performance is converted to a condition of sustained operations. Surprisingly, the directive to flight surgeons is that ‘during sustained operations, an intermittent low-dose regimen of amphetamines has the capability of maintaining aviator performance yet avoiding undesired medication effects’. Perhaps the interpretation of this evidence is that all hospitals should be dispensing amphetamines to surgeons who are working fatigued. Conversely, the alternative is to limit the surgeons’ duty-day to 16 hours as the only mechanism to guarantee an avoidance of fatigue.In conclusion, there are five major points to be considered in any rational approach to fatigue management in your workplace:

  1. Society, by virtue of contemporary legislation, is intolerant to errors resultant from fatigue. It no longer matters whatever the individual surgeon thinks about the time-on-duty verses their capacity to work a little bit longer. It doesn’t matter that you have been working like this for 20 years without a problem. It is not that your endurance has changed. It is the rules of the game that have changed.
  2. There is a consensus of opinion, being expressed by our licensing body, our professional colleges, comparable non-medical professions and the scientific research investigators that an eight- to ten-hour day is a normal work day; a 12-hour day is acceptable; and a 16-hour day is the absolute maximum that can be defended. Any performance of duties after a 16-hour duty-day can only be justified by offering compelling proof of an emergency. With the combined wisdom of the entire western world on the record stating that a 16-hour day is the maximum allowed, how can we doctors possible justify a 48- or 72- or 96-hour roster of scheduled on-call time?
  3. The objective, both legally and ethically, is not a pursuit of a policy that defines how work will be performed by a fatigued doctor; the objective is to deny the fatigued doctor access to work. Exceptions can be made for natural disasters and poly-traumas from accidents, but one cannot work fatigued simply because the hospital administration uses the term ‘operational requirement’ (without providing an adequate definition). Since the on-call roster is published in advance, you have no option to say ‘I didn’t know’. Our opinions on this socially important matter must be heard now, when we are well rested. Don’t ask my opinion during the crisis, as my judgement is the first to go.
  4. Any bad outcome, whether real or imagined, cannot be defended when fatigue is a factor (excepting true emergencies). Working while fatigued will generate an increasing volume of complaints from the patient population and your co-workers in the hospital, ostensibly because you are ‘rude’ or ‘short-tempered’, when in fact you are merely fatigued. You are at risk of being in violation of your hospital’s policies and owing to this wilful neglect you can loose your indemnity. You might become the defendant in a civil liability suit that has little chance of being defended, as your rostered hours on-duty and your presence in the theatre are well recorded. Although none of us wishes to acknowledge this potential reality, you might be found guilty of a statutory crime and be sentenced to prison. Queensland prosecutors have recently proven that they are willing to use a 150-year-old law to put a surgeon in prison for seven years. Imagine what they can do with these new laws.
  5. As an experienced doctor, you are one of the very few people who simply cannot claim that you didn’t understand the circumstances surrounding fatigue. We know the physiology of fatigue well. And, after reading this article, you also understand the legal implications. You are no longer in a position of plausible deniability. In short, the only explanation you can offer in regards to a fatigue related mal-occurrence is ‘I allowed this bad thing to happen’.

Criminal Code 1899 (Queensland) Reprinted as in force on 6 December 2011 Chapter 27 Section 288: Duty of persons doing dangerous acts

It is the duty of every person who, except in a case of necessity, undertakes to administer surgical or medical treatment to any other person, or to do any other lawful act which is or may be dangerous to human life or health, to have reasonable skill and to use reasonable care in doing such act, and the person is held to have caused any consequences that result to the life or health of any person by reason of any omission to observe or perform that duty.


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