A District Court of NSW judgment this month, involving the prosecution of the Ambulance Service of NSW, raised the question of the steps an employer must take to prevent knowingly unlawful conduct.

In SafeWork NSW v Crown in the Right of New South Wales in respect of the Ambulance Service of NSW (2023), the defendant agency was fined $250,000, less 25% for a guilty plea, for a breach of the Category 3 offence under the Work Health & Safety Act 2011 (WHS Act). A Category 3 offence is one involving a failure to comply with the duty to ensure safety, so far as is reasonably practicable. Unlike a Category 2 or Category 1 offence, however, there is no element of the offence that requires the failures to result in a risk of death, serious illness or injury.

Nature of the offence

The offence related to failures to ensure that paramedics did not act in an unlawful manner to obtain, and take for personal use, restricted medications, in particular fentanyl. Although the Ambulance Service had in place systems and processes, including audit processes, to determine if there was unauthorised access to fentanyl in its Hunter Region ambulance stations, these processes failed to promptly detect the unauthorised access by a paramedic of large quantities of fentanyl for personal use.

In considering the appropriate penalty to the plea of guilty, Judge Strathdee noted the unique situation and stated that:

• the reasonable practicability of any measures to address the risk of misappropriation of the fentanyl must be analysed in a context where the fact of criminal sanction and permanent loss of employment as a paramedic had been an insufficient deterrent for the worker’s behaviour;
• the measures required were not ones to prevent the negligence, inadvertence or carelessness or a worker, but rather taking precautions to prevent intentional criminal conduct of trained professionals who are determined to conceal their actions; and
• the risk was not able to be eliminated because access was required to discharge the life-saving role of the paramedic.

The judgment is an important decision as it demonstrates that an employer may still be guilty of an offence under the WHS Act in cases where an employee actively and knowingly breaches criminal laws.