Emergency declarations for NSW and Queensland

Michael Eburn: Australian Emergency Law - 11 November, 2019 - 17:52

The NSW Premier has declared a state of emergency for the next seven days whilst in Queensland a state of fire emergency has been declared (and you can read the actual Queensland declaration here).

New South Wales

In New South Wales, a state of emergency may be declared when the ‘Premier is satisfied that an emergency constitutes a significant and widespread danger to life or property in New South Wales’ (State Emergency and Rescue Management Act 1989 (NSW) (SERM Act) s 33).  A declaration can be in force for up to 30 days (s 35(2)) but as noted, this declaration is to last for seven days but it can be followed by further declarations if required (s 35(3)).

The declaration gives various powers to the Minister, but it appears that the Minister has delegated his powers to the Commissioner of the Rural Fire Service.

With the declaration the Minister (s 36):

(1)… is responsible for controlling and co-ordinating the activities of such government agencies, and the allocation of such available resources of the Government, as the Minister considers necessary or desirable for responding to the emergency.

(2) For that purpose, the Minister may direct any government agency to do or refrain from doing any act, or to exercise or refrain from exercising any function.

That effectively allows the Minister (or in this case, the Commissioner) to exercise supreme executive authority over the agencies of the NSW government.

The declaration gives the Minister the power to

… direct, or authorise an emergency services officer to direct, a person to do any or all of the following:

(a) to leave any particular premises and to move out of an emergency area or any part of an emergency area,

(b) to take any children or adults present in any particular premises who are in the person’s care and to move them outside the emergency area or any part of the emergency area,

(c) not to enter the emergency area or any part of the emergency area.

The relevant emergency services officer may use force to ensure compliance in effect providing for enforced evacuations, noting that agencies are unlikely to use force given the resources that would take (see Legality of forced evacuations during NSW Bushfires (January 10, 2014)).

An emergency services officer is (s 32A):

(a) a police officer,

(b) an officer of Fire and Rescue NSW of or above the position of station commander,

(c) an officer of the State Emergency Service of or above the position of unit commander,

(d) a member of a rural fire brigade of or above the position of deputy captain,

(e) a Regional Emergency Management Officer,

(f) a member of the Ambulance Service of NSW of or above the rank of station officer.

The Minister may also (s 37A):

… direct, or authorise an emergency services officer to direct, the doing of any one or more of the following:

(a) the closure to traffic of any street, road, lane, thoroughfare or footpath or place open to or used by the public, in an emergency area or any part of an emergency area,

(b) the closure of any other public or private place in an emergency area or any part of an emergency area,

(c) the pulling down, destruction or shoring up of any wall or premises that have been damaged or rendered insecure in an emergency area or any part of an emergency area,

(d) the shutting off or disconnecting of the supply of any water, gas, liquid, solid, grain, powder or other substance in or from any main, pipeline, container or storage facility in an emergency area or any part of an emergency area,

(e) the shutting off or disconnecting of the supply of gas or electricity to any premises in an emergency area or any part of an emergency area,

(f) the taking possession of, and removal or destruction of any material or thing in an emergency area or any part of an emergency area that may be dangerous to life or property or that may interfere with the response of emergency services to the emergency.

Those powers are not so different from those that can be exercised by an officer in charge at a fire or other emergency (see for example, Rural Fires Act 1997 (NSW) ss 22-26) but under that Act these sorts of decisions can only be made in response to an actual fire or ‘imminent danger’.  With the state of emergency declaration these actions can be taken pre-emptively, ie before there is a fire or before a fire impacts an area and without having to quibble about what constitutes ‘imminent’ danger.

The unique power, not normally available to fire and emergency services, is the power to commandeer private assets.  With this declaration (s 38(1)) ‘…  the Minister may, for the purposes of responding to the emergency, take possession and make use of any person’s property’.  The Minister may determine the amount (if any) compensation to be paid to the owner of any property used but there is no ‘entitlement’ to compensation (s 38(2)). A person dissatisfied with the Minister’s determination as to compensation may apply to the Premier (not a court) for a review of the Minister’s decision.

It is an offence to ‘obstruct or hinder the Minister, or any other person acting with the authority of the Minister’ (s 40).

Finally s 41 says:

A person may not bring proceedings against the Crown, a Minister or any body or person acting in the execution of this Division for any damage, loss, death or injury sustained because of anything done or omitted to be done in good faith under this Division during a state of emergency.

That wording is stronger than other provisions.  For example, the Rural Fires Act 1997 (NSW) s 128 says:

A matter or thing done or omitted to be done by a protected person or body does not, if the matter or thing was done in good faith for the purpose of executing any provision (other than section 33) of this or any other Act, subject such person personally, or the Crown, to any action, liability, claim or demand.

That establishes a defence but does not prohibit the plaintiff from commencing a legal action, which is what s 41 of the SERM Act purports to do.    Of course, if a plaintiff were to allege that some loss was caused due to action or inaction that was not done ‘in the execution of this Division’ or ‘in good faith’ then the bar would not apply. If a legal action was framed in those terms it would have to proceed to allow the court to determine if the allegation is made out, but if it is not the action would be dismissed.

Queensland

A state of fire emergency is made under the Fire and Emergency Services Act 1990 (Qld), not the Disaster Management Act 2003 (Qld).   The declaration of a state of fire emergency is made by the Commissioner, with the approval of the Minister (s 87).  The declaration stands for the period set out in the declaration or if there is no defined period, until it is revoked (s 89). The current declaration does not have a time period so it remains in force until revoked.

With this declaration, all existing authorities to light fires cease to have effect during the period of the fire emergency (s 90).

‘While a state of fire emergency remains in force, the commissioner may take any reasonable measure to abate the fire emergency’ which includes the power to requisition ‘any premises, plant, equipment, materials or substance for fire fighting or fire prevention’ (s 91).

It is an offence to fail to comply with the requirements of the declaration or to provide equipment that has been requestioned (s 92).

Conclusion

It is hoped that these declarations give confidence to the Commissioners and those acting under their authority, to take whatever action is required to face the forecast catastrophic fire conditions, and to convey to those in at risk areas of the seriousness of the risk that they face tomorrow and in the next few days.

Australian Emergency Law joins with the entire Australian community in hoping for the best outcomes for affected communities and in thanking those volunteers, both on the fire ground and those behind the lines providing support to fire fighters and communities, for their service.  Stay as safe as possible and may good planning and good fortune be on your side.

Categories: Researchers

Coroner’s inquiry into the 2017 NSW ‘Sir Ivan’ fire

Michael Eburn: Australian Emergency Law - 10 November, 2019 - 16:28

At a time when NSW and Queensland are again being impacted by severe and destructive bushfires, I can report on a NSW deputy state coroner’s findings following an Inquiry into the ‘Fire at ‘Flagview South’, Sir Ivan Dougherty Drive, Leadville February 2017 (the Sir Ivan fire).

The fire started on 11 February 2017 and was finally declared ‘out’ on 6 March 2017 ([1]).  The coroner reported (at [2]) that:

The Commissioner of the NSW Rural Fire Service, Mr Shane Fitzsimmons (‘the Commissioner’), stated that the fire burnt during the worse fire weather conditions ever recorded in NSW. The fire consumed 55,372 hectares of land, destroyed 35 houses and damaged 11 others. People suffered huge losses; together with the loss of their homes, there was also loss of sheds, farming machinery, fencing and agricultural land. Over 4,700 sheep were lost, 440 cattle, 4 horses, 325 goats, 35 poultry, 4 alpacas and 20 domestic animals. Miraculously, no persons were killed or seriously injured as a result of the fire. The emotional, physical and financial impact on the people who suffered losses and assisted in fighting the fire should not be underestimated.

Mr Fitzsimmons had requested an inquiry because (at [5]), in his view, there is:

… there is a need for a broader understanding that in declared catastrophic fire conditions, no home or structure is designed or constructed to withstand such fire conditions. Fires in these rare conditions burn aggressively and simply cannot be controlled.

The NSW Farmers Federation (known as NSW Farmers) also asked the coroner to conduct an inquiry.   They (at [7]):

… expressed the view that farmers affected by this fire have reported feeling a sense of isolation and disengagement from the RFS and that an inquiry would be an opportunity for them to put their story forward and to have their questions answered in a public forum. A particular area of concern was communication breakdowns between the RFS and landholders, which may have played a part in the initial responses and strategic management of the fire.

The coroner reminds readers (at [11]):

A coronial general fire inquiry is intended to be an independent, objective, fair examination of the available evidence that relates to the fire. It is not the function of this inquiry to apportion blame but rather, to make findings as to the origin and cause of the fire, and also to make recommendations that are considered necessary or appropriate as a result of the circumstances surrounding the fire.

The cause of the fire

It was determined (at [99]) that the fire was caused by lightning striking a wooden fence strainer post. This probably occurred some days before the fire leaving the fence post to smoulder until the weather conditions of 11 February ‘were conducive to a fire starting in the grass surrounding the strainer post’ ([93]).

The fire spread and the response

The evidence (at [19] and [20]) was that in the period January to October 2016 there had been significant rainfall in the areas affected by the fires, and this had allowed significant vegetation growth, both pastures and in timber and scrub areas.  At the end of that period there was no opportunity for effective hazard reduction burns prior to the fire in February. An RFS deputy captain gave evidence that there was no opportunity to complete hazard reductions prior to the Sir Ivan fire. He said (at [21]):

I don’t know in what area you would do the hazard reduction, they’re mostly all grazing properties around. No one’s going to … burn the feed, burn the grass. But certainly there’s an operation that needs to take place in the winter months, not spring or summer.

With respect to hazard reduction, the coroner noted (at [18]):

The RFS provides advice to landholders on managing fuel loads on their properties but this is ultimately a matter for the individuals concerned. Healthy pastures are assets in their own right that land holders might be reluctant to reduce in order to try and mitigate fire risk.

Having reviewed the evidence presented, Mr Geoff Conway, an independent court appointed expert in fire investigation said (at [22]):

There was significant variation in the fire prevention and mitigation works undertaken by landholders on those properties impacted or at threat from the fire…some images provided with these statements show areas of fuel reduction around homesteads and farm buildings. These appear to be the exception rather than the rule.

The weather forecast for 11 February 2017 was for extreme fire weather conditions.  The forecast for 12 February was for catastrophic fire conditions.  These conditions affected much of the state, not just the area where the Sir Ivan fire started (see [35]).  The coroner said (at [33]-[34]):

This inquiry is conducted with the benefit of hindsight. Those involved in making preparations in advance of 11 February 2017 had no way of knowing if, let alone where, fires might eventuate under the difficult conditions. Indeed there was an earlier fire within the Castlereagh District that started on Saturday morning before the Sir Ivan fire. This was near New Merrigal, west of Gilgandra and crews were deployed. This fire was successfully contained but was at ‘patrol’ status at the time the Sir Ivan fire commenced.

A number of incidents eventuated across the state. Between 10 and 19 February 2017, RFS crews in NSW attended 697 bush/grass fires, including 223 incidents across the weekend of 11-12 February 2017. Over 1,800 fire fighters (the vast majority of them volunteers) were deployed per day between 10 and 19 February, including an estimated 2,500 fire fighters deployed on 12 February 2017.

Around midday on 11 February smoke was observed on the property ‘Flagview South’. Neighbours, RFS brigades and RFS firefighting aircraft attended and extinguished the grass fire however (at [40]-[41]) :

… nearby scrub was already well alight. The fire burnt predominantly east under a westerly wind towards the village of Uarbry. The terrain varied from grassland to undulating rocky hills and thick wooded scrub that is largely inaccessible to vehicles.

The prevailing winds also pushed the fire from ‘Flagview South’ out to the north east. Initial efforts to fight the blaze included attempts to get in front of the fire through a property owned by Mr Coe and mount a direct attack on the fire edge.

The fire behaviour was erratic as it passed through different geography and fuel loads and was affected by wind shifts ([42]-[46]).  At [47]:

Mr Conway, the independent expert, gave evidence that even though the strategies applied in the initial period from detection to about 1900 hours were appropriate, they were not successful. The combination of terrain, vegetation and weather made it unlikely that any strategy would have been successful in containing the fire until weather conditions moderated.

Further (at [50]):

Mr Conway agreed that the strategy adopted on 12 February 2017 was appropriate even though there was a real prospect that it would not be successful because of the terrible conditions.

The fire conditions were indeed terrible and the fire was predicted to form a pyro-convection column ([69]) with the risk of ‘fire thunderstorm events’ ([73]).  At [78]-[83]) the coroner said:

It was the risk of the pyro-cumulonimbus cloud giving rise to a fire thunderstorm over the fireground that prompted a red message from the RFS at about 1705 hours.

Mr Jones [Superintendent and District Manager RFS and appointed Incident Controller] directed the message to all fire fighters working on the fire ground, including those now reporting to the Liverpool Range and Cudgegong Fire Control Centres. In doing so, he was “instructing fire fighters to ensure they had safe refuge, to expect erratic fire behaviour and to work from a safe refuge.”

This is the only red message he has had to send in his 25 year career.

Some RFS personnel then communicated the message to local landholders on the fire ground, with mixed results. Some locals thought that the advice to seek safe refuge was ridiculous in circumstances where they were fighting to preserve their homes and livelihood.

In these circumstances, individual landholders were entitled to assume their own risk and disregard the warnings if they chose. Many with no experience of a fire of this magnitude made decisions based upon their previous experience in smaller fires and thought that the RFS was overreacting.

The RFS warnings were however necessary and appropriate, and the RFS would be subject to criticism if they had issued warnings to their members which were not then passed onto other people on the fire ground.

At [87]:

Mr Conway observed that the implementation of the IAP was:

“…as effective as the circumstances allowed given the resources available. Protection of life was identified as a priority…the protection of property in the fire conditions that were present on the Sunday was always going to be challenging. The efforts of firefighters in these circumstances only plays a small part in the success of asset protection tactics. The ability for firefighters to access properties, fuel loads and fuel conditions around the assets, and any fire protection measures taken by residents prior to the arrival of the fire front contribute significantly to the fire suppression effort.”

Criticism of the RFS response

These were summarised at [100]:

Various local landholders expressed concerns by way of written statements and oral evidence that the RFS is disengaged with the local community. The primary concerns raised were; that when the RFS took control of the fire to Coonabarabran that control was too removed from what was happening on the fire ground and too removed to receive input from local landholders who were also involved in fighting the fire and who had important local knowledge and experience. A particular area of concern was communication breakdowns between the RFS and landholders that may have played a part in the initial responses and strategic management of the fire.

The coroner said (at 102]-[104]):

I am satisfied that once the Sir Ivan fire had escaped into scrub in difficult terrain on the afternoon of 11 February 2017, no one on the fire ground had a clear view of the circumference of the fire. It was too big to see from a single vantage point. Decision makers needed to communicate with each other to try and appreciate what was happening at different parts of the fire ground.

The Fire Control Centre needed to be big enough to provide (amongst other things) a number of fixed phone lines, a backup exchange in the event of power loss, radios, computer terminals and internet access, display boards for maps, electronic display facilities (including as at the time of hearing, footage showing a birds eye view over the fire ground), room for representatives from Police and Local Government, and room for volunteer members organising food and facilities for RFS crews (including out of area crews).

A fire of this size, where crews were operating out of line of sight from other crews, where there were considerable communication difficulties across the fire ground because of a ridge that effectively separated the area into a northern and southern division on 11 to 12 February 2017, where there were out of area crews fighting in unfamiliar territory, where there were unknown numbers of local private crews working on the fire ground, and where conditions were predicted to become much worse on 12 February 2017, the people on the ground were not necessarily the best informed to make decisions about anything other than the fire immediately in front of them. There needed to be a hub that could collate information coming in from different parts of the fire ground and step back to look at the bigger picture including resources and predicted weather.

Whilst local knowledge is important it can be influenced both by the limited perspective and the need for those with local knowledge to protect their own interests.

This is demonstrated [at [113]-[115]] by the evidence of Mr Fergusson [a Dunedoo resident], where he said that at the time when he was asking for a back burn to be lit on his property he was unaware, for instance, of the location of fire crews on the ground. Mr Fergusson said “I was doing my own little patch. I wasn’t in charge of the fire. I didn’t want to know what everyone else was doing.”

When asked whether, in making a decision about introducing a back burn, it would be important to understand where the crews were Mr Fergusson said “not from my perspective.”

This illustrates the importance of having someone other than local landholders making decisions about when to introduce a back burn on a fire of this scale. That decision maker needs to be impartial to the extent he or she makes decisions without looking to minimise, for example, loss of country belonging to family or friends. That person needs to have situational awareness across the fire in terms of where crews are located and how terrain might hamper or assist efforts. That person needs information about predicted weather and feedback from the fire ground as to actual conditions.

The local landholders say that the decision maker should be present on the fire ground. The RFS say that in a fire of this size, that person should be in the Fire Control Centre.

With respect to a back burn, the IC was using graders to establish wide fire breaks before authorising local firefighters to light a back burn.  At [155]-[157] the conflict between landholders and the RFS is described:

Mr Fergusson wanted the RFS to “light it up”, including lighting up “the whole scrub …with an incendiary helicopter at midnight.” This was a view apparently shared by other local landholders with their own personal history in fighting fires on this country.

According to Mr Conway “burning out operations should be commenced as early as possible once control line construction commences and weather conditions are suitable. It should be undertaken slowly and incrementally, keeping the fire well back from the point where control lines might still be under construction.”

However, Mr Conway did not support the use of incendiaries or “lighting it up” because “introducing more fire into the landscape in these conditions is a strategy that must be very carefully considered, and only undertaken with control lines in place and sufficient resources to deal with any fire that may start outside the control lines due to spotting or failure of those control lines.”

Another concern was the communication between RFS brigades and locals.  At Cassilis ([160]-[162]):

A common theme … was that there was a lack of any RFS presence at important points.

Local landholders alleged that on occasions, RFS crews were present but did not offer adequate assistance or engage with locals to tell them what was planned and the potential ramifications of those plans.

One matter of obvious significance to the people at this end of the fire ground was a RFS decision on 12 February 2017 to prioritise protecting the village of Cassilis at the expense of deploying appliances to properties that stood between the approaching fire and the village.

The fire did not reach Cassilis but that outcome could not have been known when the decision was made to prioritise the village. Fire spread predictions did indicate that the village was likely to be impacted by the fire. At [170] the coroner said:

The decision to deploy the strike teams to Cassilis took into account that:

a. People had been earlier advised to evacuate to Cassilis. Precise numbers are not known but Mr Jones estimates around 40 people travelled there for that purpose, in addition to any residents.

b. There was greater infrastructure to protect there (including a greater number of homes) than on surrounding properties.

c. Even if the fire front didn’t reach Cassilis, the main concern was that spot over fires could put the village at risk spotting over the fire breaks that landholders had established on their properties in between the fire front and the village.

d. Cassilis later lost power which meant that residents lost the ability to monitor fire progress via ABC or other communications. This became more difficult once the Telstra tower was lost. Mr Jones sent a third strike team to the town once told that the power was down.

e. A local government representative then advised that loss of electricity would mean that the pumps were out and no reticulated water would be available. Mr Jones sent a fourth strike team to the village in response to this development.

The coroner (at [172]) accepted that ‘the decision to prioritise Cassilis over individual properties was appropriate based upon what was known at the time’.

The coroner’s concluding comments and recommendations

The coroner made a number of concluding comments.  Two that I rate as most significant were his comments at [197]:

Communication and co-ordination between the RFS, the volunteer fighters, and the local landholders proved to be difficult at times. At the conclusion of this inquiry it was agreed between the RFS and the local landholders that improvements could be made. I will make a number of recommendations that the RFS and NSW Farmers agreed upon, given that those two bodies will have primary responsibility for facilitating attempts to improve communication and co-ordination.

And at [199]:

During the course of fighting the fire, it appears that possibly an unauthorised back burn resulted in the unexpected need to relocate firefighting resources and forced the unintended amendment of the Incident Action Plan. The evidence in this inquiry strongly supports the RFS concerns that unauthorised back burning can significantly impact the effectiveness of firefighting operations, the duration of a fire and safety on the fire ground. The RFS would like to see a legislative review of penalties and offence provisions in this regard. That is a law reform proposal that sits beyond the scope of this inquiry. I do however take this opportunity to stress that back burns cannot be undertaken during a total fire ban without the knowledge and consent of the RFS and any unauthorised back burns cannot be condoned.

My summary of those comments is that communication is essential for everyone to understand the other’s perspective, but landholders should not and cannot engage in their own, uncoordinated firefighting efforts.

The coroner made 5 recommendations to the Commissioner of the Rural Fire Service including (at [208]):

That the RFS undertake a community engagement campaign (including information specifically targeted at farming communities) to reflect any revision of the Fire Danger Ratings system following the current review by the National Social Research Project. Such a campaign to include notice that in large fire events the RFS cannot guarantee that every landholder will receive assistance from the RFS and such a campaign to be repeated (even in a modified form) prior to the start of each statutory bush fire danger period.

A further 4 recommendations were made to both the Commissioner and NSW Farmers.   These included:

That the RFS and NSW Farmers consider a joint approach to the Bushfire and Natural Hazards Cooperative Research Centre (or similar organisation) to conduct social research into best developing a “shared responsibility” to hazard reduction, community engagement outside of bushfire season, information sharing around predictions for more extreme fire behaviour, and the delineation of decision making responsibilities on the fire ground when RFS and private vehicles respond to a fire.

That the RFS, in consultation with NSW Farmers, extend and expand primary producer engagement strategies to include a focus on how private landholders within farming communities can work with the RFS, including a focus on information sharing outside of bushfire season, fire ground communication during a fire, fire ground management structure and firefighter safety.

Conclusion

This summary does not do justice to the Coroner’s report, and the Coroner’s report does not do justice to the more than 2000 pages of evidence and submissions and the oral testimony of witnesses.  That process demonstrates the complexity of reviewing these events particularly when there is conflict between those involved.   As the coroner said (at [10]):

Due to the volume of the material, I have referred in these findings only to the issues, evidence and submissions that I consider most significant. This inquiry and to some extent the investigation focussed on examining the fire’s cause and origin and the circumstances in the first two days of the fire that highlighted the issues of concern raised by both the RFS and the local landholders.

In this blog I have further reduced that to refer ‘only to the issues, evidence and submissions that I consider most significant.’

If there is any ‘take home’ message it seems to be the importance of communication both prior to and during the fire season and during active fires, but communication is difficult due to time constraints, the ‘fog of war’ and technological limitations.  Exploring these issues has been the subject of numerous prior findings (see https://www.bnhcrc.com.au/utilisation/ddr) and will no doubt continue to pose complex and difficult problems for fire fighting agencies and those affected or potentially affected by bushfire.

 

Categories: Researchers

NSW Coroner reports on two deaths at horse riding events

Michael Eburn: Australian Emergency Law - 8 November, 2019 - 22:51

On 4 October 2019, the NSW Deputy Coroner delivered his findings into the deaths of Olivia Inglis (who died on 6 March 2016) and Caitlyn Fischer (who died on 30 April 2016). Although the accidents occurred at separate horse-riding events, they were only seven weeks apart.  Because they raised similar issues, concurrent inquests were held.   This blog is concerned with what the coroner had to say about the emergency medical planning and response rather than matters to do with the organisation of equestrian events.

Inquest into the death of Olivia Inglis

On 6 March 2016 Ms Inglis was taking part in a cross-country jumping event.  At 9.13am she and her horse fell whilst attempting a jump with the horse landing on top of her.  It was immediately clear that she had been seriously injured.  David Keys was described as a paramedic who was on duty at the event, but as the coroner noted, prior to paramedic registration in 2018, who or what was a paramedic was unclear.  On p. 11 (footnote 10) he said:

It will become apparent that the inquest considered certain issues related to the level of medical cover that was available at the event, and whether that cover could be described as paramedic services. For convenience, the terms “paramedic” and “ambulance” have been used in these findings. However, consideration of the precise matters related to these issues will be discussed later.

Mr Keys attempted to treat Ms Inglis but found that his suction equipment malfunctioned.  He did not have equipment to intubate or to decompress her tension pneumothorax even though he was trained and experienced in those procedures.  Ms Inglis’ mother gave evidence (at [8.16]) that:

“Mr Keys was struggling to work his equipment and so he was sitting beside Olivia and he had a machine that was needed to clear her airways and he was putting it in and out and he was turning it off and on and fiddling with it…He was very, very nervous and he just kept fiddling with his equipment”.

Mr Keys was assisted by Dr Taylor, a medical practitioner who was also a competitor in the event.   The presence of Dr Taylor allowed him to try to ventilate Ms Inglis with a bag and mask whilst the Dr Taylor performed chest compressions.  A NSW Ambulance helicopter landed near the scene.  The ambulance retrieval team took over patient care but were unable to resuscitate her and she was pronounced deceased at the scene at 10.05am.

Preparation

Health Services International (HSI) was the preferred supplier of event health services for Equestrian Australia (EA).  HSI was contracted to provide ‘paramedical services’ for the event.   At [11.14]:

The President of the organising committee for the 2016 Scone Trials, Blair Richardson, said that he did not turn his mind to what level of medical services was actually going to be provided. Nor did Mr Richardson turn his mind to the number of paramedics that would be present. Mr Richardson said that he was unaware of any difference in the level of paramedic services. He explained: “I didn’t know they were different levels so I presumed ‘Paramedic’ means someone who, if you have a fall, is equipped, who can help you. I, I didn’t know there was different levels”.

Mr Keys was an experienced army combat medic who worked for HSI on a casual basis.  At [11.7]:

Following the booking request … Mr Keys was engaged by HSI to be present at the Scone Horse Trials…  Mr Keys sought clarification … as to whether he would be working in a first aid or physician assistant capacity. Mr Keys sought this clarification so that he could understand his scope for the use of medication. According to Mr Keys, Mr Taylor informed him he would be working in a first aid capacity at the 2016 Scone Trials

The Coroner found that the EA rules required that a doctor or paramedic be engaged for these types of events.  The NSW Handbook did not however mention the need for a doctor and, as for a paramedic, the coroner found ([11.10]-[11.11]):

It is arguable whether the presence of Mr Keys at the 2016 Scone Trials satisfied the mandatory provisions. This is because the evidence established that he was being employed in a first aid, as opposed to a paramedic (or physician assistant), capacity. This is contrary to the quote provided by HSI which indicated that paramedical services would be provided for the event.

Notwithstanding, it was fortuitous that Mr Keys brought a care skillset to the event that was actually higher than had been requested or contemplated. Conversely, it is most troubling to know that the equipment which was available to him did not match this skillset

It was believed that a Dr Janson would be on site as the event doctor, but this had not been confirmed with him and he was not in fact there.  This was discovered only by chance when a member of the organising committee bumped into Dr Taylor, Dr Janson’s wife, that they discovered he was not there.  Dr Taylor, agreed to fulfil the role of event doctor even though at an event safety meeting, held on 4 March, she had already been listed as the event doctor.  Neither Mr Keys nor Dr Tayler were at the 4 March ‘safety briefing’.  At [12.16]-[12.17] the Coroner said:

Dr Taylor said that the committee also knew that she was present as a competitor, and not the event doctor… Dr Taylor explained that although she had previously been asked to be the event doctor at other events she had only performed the role once or twice. This is because she was usually competing at events and thought it inappropriate to provide medical cover at the same time.

After Ms Inglis’ fall calls were being made on the radio for Dr Janson even though he was not there and this had been known at the safety briefing, indicating a lack of communication to those in the field and running the event: ‘Mr Bates [who convened the pre-event safety meeting] agreed that this demonstrated a breakdown in communications’ ([12.10]).

The coroner made the following findings ([12.13]-[12.16]):

As noted above, neither the NSW Eventing Organisers Handbook nor the 2016 EA Rules mandated that a doctor was to be present during the cross country test at the 2016 Scone Trials. The indication that Dr Janson was to be the event doctor seems to have been a product of the regular practice of organising committees to request medical practitioners to volunteer their time and services in this capacity. Whilst the willingness of medical practitioners to assist in a volunteer capacity is to be commended, it appears that the absence of a formal process that attended such arrangements caused some shortcomings, and created ambiguity at the 2016 Scone Trials.

It is unclear exactly how Dr Janson came to be nominated as the event doctor. What is clear, however, is that as late as 4 March 2016 there was an expectation that he would be present. Up until this point there is no evidence to suggest that any confirmation was sought by the organising committee or event officials that he would be present. It was only through a chance encounter with Dr Taylor that it became evident that he would not be present. It is also not entirely clear how Dr Taylor came to be listed as the event doctor. Clearly, this determination was made prior to the pre-event safety meeting, given that Dr Taylor’s name was already included on the checklist used by Mr Bates. It seems that Dr Taylor’s presence at the event as a competitor was seized on as an opportunity to regard her as the replacement event doctor, even though the evidence establishes that this was never confirmed with Dr Taylor herself. Dr Taylor’s evidence suggests that if confirmation had been sought it is likely she would have declined to volunteer as she was competing at the event.

What is troubling is that despite the change of event doctor, it is clear that this was not communicated to all relevant event officials. At the time of Olivia’s fall, attempts were still being made to locate Dr Janson in order to have him attend fence 8A/8B. Again, it was only by chance that Dr Taylor heard a radio broadcast in this regard, advised that Dr Janson was not present, but that she was available to assist.

The absence of both Mr Keys and Dr Taylor (who was believed to be the event doctor) from the pre-event safety meeting seems incongruous if the purpose of the meeting was to ensure that the cross country test was to be conducted as safely as possible. It can be accepted that financial constraints and the dependence on volunteers are limitations. However, it seems that there is scope to improve this process.

Inquest into the death of Caitlyn Fischer

Ms Fischer was also taking part in a jumping event when she and her horse fell.   Ms Carr, Ms Fischer’s mother and a registered nurse, was the first person to reach her after the fall. She

… saw that Caitlyn was lying on her left side, facing away from her, and was motionless. Ms Carr ran around the fence and leaned over her daughter. She saw that Caitlyn’s pupils were fixed and dilated and that the left side of her left orbit appeared fractured, with the left side of her head appearing “crushed and bloody” but with no obvious active bleeding. The left side of Caitlyn’s helmet, which she was still wearing, had been crushed into the ground.

Ms Carr felt for a pulse and could not find one. She also saw no signs of respiratory effort. Ms Carr realised that, tragically, Caitlyn was already deceased.

Even so officials attempted CPR until the on site medical team arrived and confirmed that Ms Fischer was deceased and CPR was terminated.

Medical coverage

Moving from the specifics of these deaths to events generally the coroner considered the issue of medical services at events.  (The discussion below, and paragraph numbers are taken from the report of the Inquest into the death of Olivia Inglis but the text appears in both reports).

It was noted that prior to 2007 medical coverage was provided by NSW Ambulance but fee changes had meant that NSW Ambulance was priced out of the market and event organisers had turned to the private ambulance market.

FEI is the International Federation for Equestrian Sports. FEI recognises a single national federation for each country. In Australia the national federation is Equestrian Australia (EA).

At [23.5]-[23.6] the coroner said:

Both the FEI Rules and the EA Rules contemplate the provision of paramedical services during the cross country test. Annex D to the FEI Rules refers to “a paramedic with Pre-Hospital Trauma Life Support (PHTLS) or International Trauma Life Support (ITLS) certification” and that “the Cross Country Test will require [sic] Pre-Hospital Trauma Care Specialist”. Similarly, Annex D.1 to the EA Rules provides that “an ambulance (or paramedic equivalent) MUST be present during the cross-country test” (original emphasis).

However, in 2016 there was no national registration or accreditation for the paramedic profession in Australia. Accordingly, at that time registration varied between jurisdictions, employers and practice settings…

And at [23.10]:

The evidence during the inquest established that most of the witnesses, including experienced riders such as Ms Bishop, were unaware of the change in medical service providers after 2007. Mrs Inglis said that until hearing the evidence in the inquest she was unaware of the change in level of paramedic services at events. She said: “As a member of EA, I had never realised that there’d been a point when that happened and we had suddenly different ambulance, different level of care at the events. That quite shocked me”.

Ms Fasher, former chair of the EA board said ([23.13]):

“Yes, look, I think it’s fair to say that as a result of this inquest a lot of us have become acutely aware as to what was the situation. I don’t believe the organising committees understood that, nor did very many of the rest of us. We assumed as laypeople that paramedics were in fact paramedics, with all of the things that you assumed in terms of their skill.”

The coroner said (23.15] and [23.17]):

The evidence suggests that following the change from public to private medical service providers in 2007, no re-evaluation was conducted on a general level by organising committees as to (a) whether the provisions of the NSW Eventing Organisers Handbook and the 2016 EA Rules could be complied with; and (b) whether an appropriate level of medical services could be provided. Certainly it is clear that no specific re-evaluation was conducted prior to 2016 at Scone or at the Sydney International Horse Trials. Rather, it is evident that past practices (probably dating back to 2007/2008) had been adopted regarding this aspect of preparation for the event…

Notwithstanding, in this context it can be accepted that organising committees, and event officials, having been advised of a preferred medical service provider, could assume that such a provider was capable of providing an appropriate level of medical care. Until the tragic deaths of Caitlyn and Olivia in 2016 there was no direct basis to query whether this was the case or not. However, the change in medical service providers in 2007 represented a missed opportunity for EA to demonstrate appropriate governance by ensuring that the same level of medical care that was provided at events prior to 2007 would similarly be provided after 2007.

In essence prior to 2007 EA had contracted with NSW Ambulance, after 2007 they contracted with private ambulance providers and no-one thought to question whether they were receiving the same level of service believing that a paramedic is a paramedic when clearly, before registration in 2018, that was not the case.

The FEI rules also provided that for cross country jumping events a ‘fully equipped Pre-Hospital Trauma Care Specialist with trauma and resuscitation skills must be available on site’ ([23.18]).  EA rules provided that for events of less than 150 people this requirement could be satisfied by perhaps one or two on-site paramedics.  The coroner said (at [23.27]):

… it is plainly evident that the EA Rules provide no clear and unambiguous rule or guideline as to what level of medical services is to be provided at an event, particularly during the cross country test.

The coroner recommended (at [23.48]):

… to the Chief Executive Officer of Equestrian Australia that the current version of the National Eventing Rules be amended to mandate that at each Event (a) there must be at least one Medical Response Team consisting of a minimum of two medical providers, one of whom has the minimum skills and experience to: (i) secure an airway, at a minimum with a laryngeal mask airway and ideally with the skill to intubate or perform surgical airway; (ii) decompress a chest with either a purpose-made long decompression cannula or thoracostomy/chest tube; (iii) apply quality pelvic binder (SAM splint or T-pod) and C-collar; (iv) insert IV and give crystalloid and analgesia; and (v) apply suitable splints to fractures; (b) where reasonably possible, subject to geographic limitations, a medical practitioner (the Event Doctor) is to be one of the members of the Medical Response Team; (c) there must be two Medical Response Teams at Events when the show jumping test and cross country test are held concurrently; (d) the Event Doctor (if available), or the Medical Response Team, in consultation with the event organising committee and Event Safety Officer is to determine the number of Medical Response Teams that are required to achieve a response time of three minutes or less to the location of a serious incident requiring medical assistance.

He also recommended that each team be provided with a vehicle and aim for a response time to any event of less than 3 minutes ([23.50]-[23.51]).

With respect to event planning he recommended ([23.60]):

… that an Eventing Serious Incident Management Plan (ESIMP): (a) is to be developed for every Event by an Event Organising Committee, prior to the commencement of the Event; (b) is to be provided to the Event Doctor or Medical Response Team for an Event, prior to the commencement of the Event; (c) is to ensure that an Event Organising Committee is to arrange for the Event Doctor or Medical Response Team to conduct a venue inspection, prior to the commencement of the Event, to ensure that any medical response can be provided in a timely manner, including transportation to off-site medical services; (d) is to ensure that all Event staff (including volunteer staff) are provided with all necessary contact phone numbers for Event Officials, the Event Doctor, and Medical Response Team, and any other medical services providers in the case of a serious incident requiring a medical response; (e) is to ensure that all Event staff (including volunteer staff) are provided with necessary information (including via a mobile phone app) to enable external medical services providers (such as NSW Ambulance) to be directed to the location of a serious incident requiring a medical response in a timely manner; (f) is to ensure that in the case of a serious incident requiring a medical response, Event staff (including volunteer staff) at the location of the serious incident be advised that the arrival of a medical response has been arranged and is imminent; and (g) is to ensure that the Technical Delegate has possession of the GPS coordinates for the location of each fence judge, so that such information can be provided to enable external medical services providers (such as NSW Ambulance) to be directed to the location of a serious incident requiring a medical response in a timely manner.

Finally the coroner recommended that fence judges, who sit at every jump, be provided with some basic training in what to do in the event of a fall and injury and be offered formal first aid training should they wish to receive it ([23.69] and [23.71]).

Implications

These findings may have significant implications both for those that organise equestrian events and those that provide event health services.  Relying on doctors, paramedics or first aiders who happen to be at the events because they are also involved in equestrian sport is not sufficient.

The findings with respect to the organisation of the Scone event where Ms Inglis’ died demonstrates too the value in protecting the title of paramedic. Lay people did not understand what the term meant and failed to see any difference between NSW Ambulance paramedics and anyone else who arrived in an ambulance.  At least with registration now to call oneself a paramedic means something.

Ms Inglis’ death also demonstrates the issue, often discussed here, about discrepancy between skill level of putative employment.  Mr Keys was an experienced medic with experience in intubation and releasing a tension pneumothorax but on this day was told he was there as a ‘first aider’.  If he had failed to provide care that he knew he could because of that direction I suspect the coroner would have been much more critical. In fact, he did the best he could with his skill set, what stopped him was that he did not have the equipment necessary to perform those tasks.  One can infer if he had it, he would have used it as he should have in those circumstances.

Providing medical services at complex events such as cross country jumping, or large music festivals, is not simply a matter of asking someone with a first aid certificate to turn up with a first aid kit and a stretcher (which is a bit what it was like when I first started in the field).  Today extensive planning and risk management is required, and teams are not only expected but increasingly required to bring advanced level skills and equipment to the scene.  It is up to those providing the event health services to ensure that they have the necessary skills – if laypeople don’t understand that there are levels of skills then they cannot be expected to make the assessment of what teams are required. Ensuring those that provide event health services take responsibility for providing the service that is needed, not just the service the client asks for is, no doubt, part of the reasoning that lies behind Victoria’s plan to regulate the event health sector and also the push that lead to paramedic registration.

 

Categories: Researchers

Coroner’s recommendations following inquest into music festival drug deaths

Michael Eburn: Australian Emergency Law - 8 November, 2019 - 19:31

The NSW Deputy State Coroner has handed down her findings and recommendations with regard to the deaths of six young people at music festivals between December 2017 and January 2019.  Her comments have been widely reported in particular her recommendations to introduce pill testing and to decriminalise personal possession and use of currently prohibited drugs.  You can read her full report via the website of the NSW Coroners Court – Inquest into the death of six patrons of NSW music festivals,

Readers of this blog, in particular those involved in first aid or paramedicine will be interested in the entire report but given its length I won’t attempt to summarise it.  It is better to read it in its entirety.

Of interest to the whole readership might be the issue of the coroner’s response.  The coroner is often used as the ultimate threat – “if you do the wrong thing the coroner will get you!”  I have previously argued that this fear of the coroner is misplaced – see the variety of posts that appear here – https://emergencylaw.wordpress.com/?s=coroner

Event medical services

In the deaths the subject of this investigation, event health services were, simply by coincidence, provided by Event Medical Services (EMS).   An expert, Associate Professor Dr Holdgate, was called to assist the coroner and she, and the coroner, were ‘extremely critical of aspects of the care of [two of the young people who died at the Defqon.1 festival] by medical staff who had been contracted by EMS…’ [209].

Being critical, even extremely critical, did not lead to recommendations of professional discipline nor presumably career-ending findings.   The coroner was looking for ways to prevent deaths, not to single out individuals.  The two doctors involved were out of their depth.  Of the more junior doctor the coroner said (at [242]):

In the circumstances of this case, I have considerable sympathy for Dr …. He candidly admitted that he was out of his depth and overwhelmed. He believed, reasonably, that there would be a more senior doctor to handle a patient in these circumstances, and there should have been more support available to him. The frank acknowledgements that he made when he gave evidence showed a level of maturity and insight that is admirable. As Dr Holdgate fairly stated, Dr … lacked leadership skills because of his relative lack of experience in emergency or critical care, meaning “he hadn’t been trained in doing that”.

The care this doctor provided may not have been optimal, but the role of the coroner was to identify that, not to crucify the doctor and the doctor’s own frank admissions and willingness to cooperate with the inquiry held him in good stead.

With respect to the more senior doctor it was not his failings that were the subject of the most severe criticism, but consistent with the role of the coroner being to find ways to prevent future deaths rather than lay blame for the past the coroner was most critical of his failure to learn.  The coroner said (at [231]-[232]):

I accept Associate Professor Holdgate’s view that Dr … was faced with a very challenging situation in a somewhat unfamiliar environment with staff of mixed skills and experience. I am nevertheless troubled by how little he appeared to have learnt from the situation. As Associate Professor Holdgate told the court “…he [Dr …], when asked, said he couldn’t identify anything he would’ve done differently. I can’t think of a single patient I’ve ever seen where I couldn’t think of something I could’ve done a bit better. I find that a worrying lack reflection…”

Having listened carefully to the evidence, particularly the response of Dr …, I remain confident in the expert testimony of Associate Professor Holdgate. I have no doubt that Dr … did his best in a very stressful situation, but he did not appreciate his own limitations when trying to treat [the two patients]. Associate Professor Holdgate identifies a number of troubling gaps in his knowledge. I was not persuaded by the explanations Dr … gave.

The Coroner’s recommendations

The coroner’s recommendations are no doubt controversial and the NSW Government is unlikely to accept them.  The government should, however, be prepared to move away from the traditional punitive law and order debate that is such a common feature of state politics and consider recommendations that are made after consideration of evidence.  With respect to pill testing the coroner said (at [14]):

During the investigation it became clear that there is a wealth of available information that can assist in understanding the context and circumstances surrounding these deaths. Doctors, scientists, criminologists, health policy professionals and peer workers came forward to share their expertise with the court. Many had been working in their respective fields for decades and can properly be regarded as national and international experts. Many had practical suggestions to save lives based on sound research and on experience both here and overseas. A range of views was sought. The court then had the opportunity to sift through divergent opinions and positions, away from the heated political environment where these debates sometimes take place.

That process informed the whole inquest and one might think is likely to lead to more considered responses than one might expect from politicians with a constant eye to the electorate.

With that in mind the coroner made 28 recommendations to the NSW Department of Premier and Cabinet, NSW Health, NSW Police, NSW Department of Communities and Justice, the Australian Festivals Association, NSW Education Standards Authority and EMS Event Medical.  I think of most immediate importance to those engaged in event first aid services are:

To the NSW Department of Premier and Cabinet

1.That the Department of Premier and Cabinet permits and facilitates Pill Testing Australia, The Loop Australia, or another similarly qualified organisation to run front of house medically supervised pill testing/drug checking at music festivals in NSW with a pilot date starting the summer of 2019–20…

6. That the Department of Premier and Cabinet facilitate a regulatory roundtable with the involvement of relevant State and Local government and key industry stakeholders, including the Department of Health, private health providers such as EMS Event Medical, NSW Ambulance and NSW Police, the Australian Festivals Association, harm minimisation experts and promoters, to ensure appropriate minimum standards for policing, medical services and harm reduction are mandated at music festivals.

To the NSW Department of Health

7. That the NSW Health Guidelines for Music festival Event Organisers: Music Festival Harm Reduction be amended to advise of an appropriate time frame and protocol for a private medical service provider to conduct a full evaluation, preferably with an independent consultant, in the event of a fatality involving a patient who they have treated.

To EMS Event Medical

(Noting that this is directed to EMS Event Medical as they were the contracted health service provider at each of the events investigated, but this should be considered by any event health service provider).

1. That EMS Event Medical develop a review protocol so that in the event of another fatality, an independent consultant is engaged to assist with a full evaluation of the circumstances of the death and the adequacy of medical care, and that there be a clear time frame to initiate and complete the report.

Categories: Researchers

Legal risks from information on, or not on, brigade webpages

Michael Eburn: Australian Emergency Law - 31 October, 2019 - 17:42

Today’s correspondent is concerned about

… an increase of volunteer fire brigades (nation-wide) now getting involved in social media [and] what legal responsibilities falls on the brigades for the information posted?

For instance, if the brigade posts every time there is a fire ban, but misses one – is there now an obligation to provide this information? Or if the information provided around legality of when a fire can be lit were to be incorrect?

I understand that each organisation will have its own internal policy regarding social media, but more and more people are looking to social media for information, so when does basic PR become a legal obligation?

Putting aside the legal obligations one can imagine the press after a fire with a person saying ‘we weren’t warned, I checked the Kickatinalong fire brigade web site and it said nothing’.  That’s not a good look even if there is no legal impact and even if because, at the time, the volunteer webmaster was out fighting the fire.  And is to ensure consistent messaging that the modern mantra is for a ‘single point of truth’ to ensure messaging is consistent.  A prudent webmaster may, therefore only put up local good news stories with a link on the webpage ‘For current warnings and bans, click here’.  But, assuming that is not how it’s done, what might be the legal outcomes.

Like so many questions asked here (and asked of the law) there is no simple answer, the answer depends on all the circumstances.  I think the key question would be (and here I paraphrase the High Court of Australia from the unrelated case of Rogers v Whitaker [1992] HCA 58) I think there could be legal consequences if in all the circumstances of the particular case, a reasonable person would expect to be able to, and did, rely on the information on the brigade website or the brigade was reasonably aware that a particular person was relying on that information.

If a brigade website promised to provide up to date information and did consistently so that locals turn to the brigade rather than the Bureau of Meteorology or the state website for information then that may create an expectation that the information will be correct and up to date and also establish that they rely on that information.

People may know that weather forecasts come for the Bureau and fire bans are imposed at a level higher than brigade so may appreciate that the local website is a ‘mirror’ of those other sites and they really need to look to the BoM or the State Headquarters.  But it may be brigades that issue fire permits (see RFS operating ‘out of area’
(February 11, 2019). Even if it were not reasonable to expect a brigade page to be fully up to date with bans, one might reasonably look to the local brigade for advice on whether a fire can be lit.  In that case the legal issue would not so much be some action against the brigade, but a person who was charged with say lighting a fire without a permit could argue that he or she had an honest and reasonable belief that a permit was not required because he or she asked, or checked with the local brigade, and got the wrong information but in circumstances it was reasonable to rely on that information.  In that case he or she may be acquitted of the offence with which they have been charged.

If someone specifically asks – is there a fire ban today? What is the fire danger rating today? Can I light without a permit today? – then the brigade knows they are being relied upon and they know they need to be correct because it has been brought to their attention that a person is relying on their advice.

Without going through all the questions of whether there is a duty to warn, and whether it was a failure to warn rather than, say the fire, that caused any losses (and those answers depend ‘on all the circumstances’) one cannot say what the consequences would be, if any.  Certainly the most likely is that if the brigade page has wrong information about the status of fire bans and the need for permits, a person may be acquitted of any charges related to lighting a fire contrary to a ban.

Conclusion

So, when does basic PR become a legal obligation?  When you might reasonably expect that people will rely on the information, and act on it to their own detriment.  When the information is more than good news stories there’s an obligation to try and be correct.  A cavalier attitude to accuracy will never end well.

Categories: Researchers

Video on ‘dignity of risk’

Michael Eburn: Australian Emergency Law - 31 October, 2019 - 13:21

Many posts on this blog suggest that people believe there is a duty of care to avoid every foreseeable risk.   Finding that a risk is foreseeable is an essential first step in establishing if anyone has a duty to take steps to avoid that risk, but it is not the sole criteria.  It can be acceptable to ‘run’ a risk, and we all take risks all the time.  The concept of ‘dignity of risk’ was discussed in PBU & NJE v Mental Health Tribunal [2018] VSC 564 which, in turn, was discussed in my post Victorian decision on refusing medical treatment – reviewing the principles (November 24, 2018).

Russell Kennedy Lawyers have produced an Aged Care Video Alert: Dignity of Risk.  Related to the aged care sector rather than the pre-hospital care there are clear overlaps.  The video discusses duty of care without giving any clear guidance on how that may be managed in particular circumstances (ie they say it may arise but now what practitioners should do about it).  Subject to that limitation (and what could they do in 2 minutes 33 seconds) the video may be of interest to readers of this blog.

Categories: Researchers

Better compensation for Victorians injured as a result of an intentional action

Michael Eburn: Australian Emergency Law - 31 October, 2019 - 13:07

The decision in State of Victoria v Thompson [2019] VSCA 237 has been well summarised in a case alert by Wotton + Kearney Lawyers.

Under ‘civil liability’ reforms, thresholds have been put in place to limit damages claims. In most cases a person has to prove that they have a ‘significant injury’ before they can claim damages (see Wrongs Act 1958 (Vic) Part VBA).  This limitation does not apply where the person is injured as the result of an “intentional act that was done with intent to cause death or injury or that is sexual assault or other sexual misconduct” (s 28LC).

In State of Victoria v Thompson the plaintiff was a prisoner who was stabbed by another prisoner. He sued the State of Victoria alleging negligence and breach of statutory duty for failing to ensure prisoners did not have access to knives, and deficiencies regarding the supervision and guarding of prisoners.  The summary provided by Wotton + Kearney says:

The Victorian Court of Appeal has decided a claimant does not need to establish they have a “significant injury” to claim general damages if they allege they are the victim of an “intentional act that was done with intent to cause death or injury or that is sexual assault or other sexual misconduct”.

Critically, this decision applies to defendants that do not commit the intentional act, for example hotel operators, security and crowd controllers, prison operators, schools, care providers and shopping centre owners and managers.

They say

… all that is needed to avoid Part VBA is an allegation the claimant’s injuries were intentionally caused. Examples of where the exception would apply include:…

  • Care providers who are responsible for the care of medical patients, minors, elderly people, people with disabilities or other vulnerable people who are assaulted by fellow patients.

This may be of interest to readers of this blog, in particular paramedics.  First it reminds paramedics (and others) that if you are assaulted you can sue the assailant for damages and the limitations imposed in the Wrongs Act (and similar legislation in other states and territories) won’t apply so the entitlement to damages may not require proof that the injuries meet a minimum threshold (and see Police officer sues mental health patient for battery (December 18, 2018)).

Second if the injured person can sue the employer, eg if a paramedic can establish that the employer ambulance service was negligent in the way it managed the risk of physical violence to paramedics, then that action too may avoid the limitations in the Wrongs Act and possibly workers compensation legislation.  It may well open doors to better compensation for those injured as a result of an intentional act even where the defendant was not the perpetrator of that Act and that may be of great benefit to paramedics in particular, given the rise of reported violence on paramedics and other health care professionals.

Remember of course that this blog is not legal advice and every case turns on its facts so anyone should get expert legal advice before deciding whether to sue anyone, and if so who to sue.

 

Categories: Researchers

A Bill to require installation of AEDs in South Australia

Michael Eburn: Australian Emergency Law - 29 October, 2019 - 09:21

Today’s question came as a comment on an earlier post – Fear of legal risk for installing AEDs is misplaced (September 17, 2019).  The comment is:

I’m watching with interest the proposed legislation in South Australia (yet to be enacted, and may not be) requiring some prescribed buildings (existing and new) and some new or improved buildings ($100,000 + changes) to have an AED for every 1200sqm of floor space. My question relates to those organisations who don’t fall under the legislation directly because they have existing facilities but would if they were a new building. They are no doubt still required to complete their risk assessment and decide whether they need one or not.

1. Would the fact that there was legislation imposing AEDs on their peers in newer buildings come into play when assessing whether they reasonably need them or not?

2. If they did deem themselves to require an AED does the number and placement instructions (signage, number etc) imposed by legislation become a quasi best practice or minimum standard?

3. The legislation would suggest the government’s position is, if you can afford to build a new building you can afford (and should) install AEDs, does then the only viable reason for these buildings not installing one become, ‘we can’t afford it’ ?

And finally,

4. Even if the answer to all these questions is No, I’m wondering if the legislative move could place businesses at greater risk of being sued for not having an AED as the public starts to expect buildings to have them?

The ‘proposed legislation’ is, I infer, the Automated External Defibrillators (Public Access) Bill 2019It is a private members Bill (ie not from the Government) introduced by SA-BEST MLC, Frank Pangallo.  You can follow the link, above, to read the Bill or read explanatory commentary from the websites below:

The Bill, if passed, would require AED’s to be installed in any ‘designated building or facility’ that is:

(a) a public building or facility;

(b) a prescribed sporting facility;

(c) a school, tertiary institution or facility that provides skills training;

(d) a correctional institution (within the meaning of the Correctional Services Act 1982) or custodial police station (within the meaning of section 78 of the Summary Offences Act 1953);

(e) a retirement village;

(f) a facility that provides residential care within the meaning of the Aged Care Act 1997 of the Commonwealth (whether constructed before or after the relevant day);

(g) a residential park occupied (or that allows for occupation) by more than 12 residents (within the meaning of the Residential Parks Act 2007);

(h) a casino or other venue where gambling is authorised;

(i) a theatre or other venue where artistic or cultural performances are provided;

(j) without limiting a preceding paragraph or the definition of public building or facility—

(i) a class 2 building under the Building Code with more than 10 sole occupancy units (within the meaning of the Building Code); or

(ii) a class 5, 6, 7 or 8 building under the Building Code, other than a farm shed or farm building (within the meaning of the Building Code); or

(iii) a class 9 building under the Building Code;

(k) a building or facility, or class of building or facility, prescribed by the regulations.

Given high numbers and various vulnerabilities the list of what is a ‘designated building or facility’ (ignoring (because I don’t know) what is a class 2, 5, 6, 7, 8 or 9 building) seems like appropriate places to put AEDs.    Each ‘designated building or facility’ must have at least one AED and one for every 1200m2 of floor area.

AEDs must also be installed in a ‘prescribed building’ that is a building ‘on land used for commercial purposes’ that is built, has major work done or which has a change of use to become a commercial building after the ‘relevant day’, and which has a floor space larger than 600m2. (The relevant day is a date that will be prescribed if the Bill becomes law).    Again there must be one AED for every 1200m2 of floor area.

It will also be compulsory to install AEDs into all emergency service organisation vehicles (so all vehicles operated by the SA Metropolitan Fire Service, SA Country Fire Service, SA State Emergency Service and SA Police) and other vehicles prescribed by the regulations.

There will need to be procedures in place to ensure that AEDs are maintained and tested once a year.   Signs will be required ‘(a) near to the Automated External Defibrillator; and (b) outside, and near to an entrance of, the building or facility’ and on any vehicle required to carry an AED.

The Minister will be required to maintain a register of AEDs containing at least information on the AEDs location and ‘the times during which it is accessible by the public’.   The information must be available on a web-based platform and also on ‘a software application compatible with smartphones’.  The Minister will also be required to develop an awareness strategy on the location and use of AEDs (including ‘the fact that a person does not need to be trained to use an Automated External Defibrillator).   He or she must also:

… establish a scheme for the provision of training in the use of Automated External Defibrillators to the following persons:

(a) a person who must complete first aid training in accordance with the Education and Care Services National Law (South Australia);

(b) a person who must complete first aid training in accordance with the Work Health and Safety Act 2012

(c) any other person, or class of persons, prescribed by the regulations.

The Bill does not require anyone to actually use the devices should the need arise.  Even though the Bill is called the Automated External Defibrillators (Public Access) Bill 2019 there is nothing in the proposed Bill to say that the AEDs, once installed, actually have to be made available to the public. What are ‘commercial purposes’ are not defined, so someone might have a factory or warehouse, install an AED for the purpose of compliance with the Act but have it in the building that is not accessible by the public.  It is still useful to have it as it could be used should a worker suffer a sudden cardiac arrest, but there is no obligation to provide ‘public access’.

Private member’s Bills rarely succeed, and it is unlikely that the government would want to accept a Bill that would impose significant costs on the government to develop the register, public awareness campaign and training requirements as well as installing AEDs in all emergency service owned vehicles.   My guess is that this Bill will never become law, but assuming that it does I can turn to the questions asked:

1. Would the fact that there was legislation imposing AEDs on their peers in newer buildings come into play when assessing whether they reasonably need them or not?

No, the Bill contains no element of ‘risk assessment’ it is merely ‘tick box’ compliance. If you build a commercial building greater than 600m2 you must have an AED to comply with the law, but it does not mean that on any risk assessment you would conclude you needed one. If a person operated a vehicle or owned a building that was not caught by the Act (if it became law) then the Act would be irrelevant to any consideration of what they needed. It may even decrease the need for an AED if you know the building next door has one because they are required to comply with the Act.

2. If they did deem themselves to require an AED does the number and placement instructions (signage, number etc) imposed by legislation become a quasi best practice or minimum standard?

No, for the reasons given above.  Further, the requirements are vague – a sign near the AED and on the building, that compliance with the legislation may in fact not be best practice at all.

3. The legislation would suggest the government’s position is, if you can afford to build a new building you can afford (and should) install AEDs, does then the only viable reason for these buildings not installing one become, ‘we can’t afford it’ ?

This is not a government Bill so this is not the government’s position. If it did pass into law one might say it is the Parliament’s position (or the government’s position if they endorsed it too). But again, there is no risk assessment in the Bill.  A viable reason is still ‘we don’t think we need one’; see below.

4. Even if the answer to all these questions is No, I’m wondering if the legislative move could place businesses at greater risk of being sued for not having an AED as the public starts to expect buildings to have them?

No for all the reasons given before and then some. First to be sued the plaintiff would have to show that the outcome in their case would have been different if an AED is installed. Merely installing an AED does not mean anyone is actually going to use it, or if they do use it that it will actually make a difference in a given case. Not everyone who has a sudden cardiac arrest and receives prompt CPR, prompt AED and prompt transfer to paramedics and definitive care survives. The plaintiff in any case would have to prove that they would have been one of the patient’s that would have.

Second the presence of AEDs in designated and prescribed buildings may well give rise to an expectation that they are in those buildings but equally no expectation that they are in other buildings.  If I know they have to be in that large commercial building I may have less expectation that they will be in the smaller building and the signs will even tell me which building, they are in.  It creates the position that AEDs are not expected in every building.

People can cite data on how effective AEDs are and I have no doubt they are; I would be interested in seeing data in how many are used.  Many are sold and installed but how many of them ever see ‘action’?   Someone suffers a sudden cardiac arrest every day but nearly all the AEDs put out in public won’t be used today, tomorrow or probably this year, if ever.  It’s a legitimate cost/benefit question to ask whether it’s worth investing in one and particularly if you know that the commercial building next door must have one or more and they are listed on a public access register.

Conclusion

The Bill, if it becomes law (and I doubt that it will) would require AEDs in a ‘designated building or facility’, a new commercial building with a floorspace greater than 600m2 and in emergency service and possibly some other vehicles.

It would not impact upon the obligation, or liability, of other building owners to take steps to install AEDs or to put signs up if they do.  In fact it may reduce the need for those building owners to install AEDs as they can make use of those in buildings that would be required to comply with the Bill (should it become law).

Categories: Researchers

Immunity from criminal prosecution for traffic offence committed by SA Police (and emergency workers)

Michael Eburn: Australian Emergency Law - 26 October, 2019 - 13:28

In Lumsden v Police [2019] SASC 178 Stanley J upheld an appeal by a police officer who had been convicted of aggravated driving without due care contrary to s 45(1) of the Road Traffic Act 1961 (SA).

The defendant officer had been engaged in a traffic stop.  He got out of his police car without first applying the hand brake and putting it into ‘park’. As he got out the car rolled forward. Even though he was part way out of the car, he attempted to stop it by putting his foot on the brake. He accidentally put his foot on the accelerator and the car ran over the motorcyclist, and motorcycle, that he had stopped.  The motorcyclist suffered serious injuries.

The defendant police officer argued that the magistrate failed to consider the defence provided by s 65 of the Police Act 1988 (SA).  That section says (emphasis added)

A member of SA Police does not incur any civil or criminal liability for an honest act or omission in the exercise or discharge, or the purported exercise or discharge, of a power, function or duty conferred or imposed by or under this Act or any other Act or law.

That section is unusual. Most sections like this refer to civil, not criminal liability – see for example Rural Fires Act 1987 (NSW) s 128 discussed in the various decisions of R v Wells (see RFS fatal collision and s 128 of the Rural Fires Act (October 14, 2016) and the decision in Workcover v NSW Fire Brigades [2006] NSWIRComm 356 which found that s 78 of the Fire Brigades Act 1989 (NSW) (as it then was) did not extend to provide immunity from criminal prosecution).

The South Australian provision explicitly does extend to criminal liability (see also Fire and Emergency Services Act 2005 (SA) s 127).  Justice Stanley, hearing the appeal from the Magistrate, found that the magistrate made an error in not applying s 65.

His Honour said (at [37]-[39):

I am satisfied that the appellant was performing a traffic stop. I am further satisfied that at the time when the appellant attempted to alight from the vehicle without engaging the transmission into the “park” position he was purporting to exercise or discharge a function conferred or imposed under the Police Act. In addition, in doing so the appellant was in the process of exercising or purporting to exercise common law duties of a police officer to investigate a possible crime and to control traffic. At the very least the respondent has not excluded that as a reasonable possibility.

The magistrate found that the appellant attempted to alight from the police vehicle mistakenly believing that he had placed the transmission into park and that he considered it safe to get out of the vehicle.  By implication, that is a finding that the appellant’s relevant act and omission was honest.  In any event, the respondent carried the onus of disproving this fact and has not excluded that as a reasonable possibility.

On that basis the immunity conferred by s 65(1) applied.  Accordingly, the magistrate should have returned a verdict of not guilty.  It follows that the conviction must be set aside and a verdict of not guilty substituted.

His Honour also considered a defence raised by s 45 of the Road Traffic Act 1961 (SA).  That section says

(1)        A person must not drive a vehicle without due care or attention or without reasonable consideration for other persons using the road…

(4a)      It is a defence to a charge of an offence against this section for the defendant to prove that the defendant was, at the time of the offence—

(a) carrying out duties as an emergency worker; and

(b) acting in accordance with the directions of the defendant’s employing authority; and

(c) acting reasonably in the circumstances as the defendant believed them to be.

An emergency worker is ‘a police officer or a person who is an emergency worker as defined by the regulations for the purposes of this section’.  The Road Traffic (Miscellaneous) Regulations 2014 (SA) r 61 extend the definition to include ‘members of an emergency services organisation within the meaning of the Fire and Emergency Services Act 2005’ and ‘persons engaged in the provision of emergency ambulance services under section 57(1) of the Health Care Act 2008 on behalf of SA Ambulance Service Inc’.

The circumstances, as the defendant believed them to be, was that the car was in park with the handbrake on.  At [53]-[54] His Honour said:

I am satisfied that the third limb of the defence was made out.  The third limb of the defence has an objective and a subjective test.  For the purposes of placitum (c) the trier of fact must be satisfied that the emergency worker was acting reasonably in the prescribed circumstances.  That is the objective test.  The prescribed circumstances are the circumstances as the defendant believed them to be.  That is the subjective test.

In this case the appellant believed the circumstances to be that he had placed the transmission into park.  In those circumstances it was objectively reasonable for him to alight from the vehicle.  In those circumstances it was objectively safe to do so.

There is a common law defence of mistake that says an accused is not guilty of a crime if he or she has an honest and reasonable belief in facts which, if true, would make the act innocent (called the Proudman v Dayman defence after the decision in Proudman v Dayman [1941] HCA 28)).  For that common law defence to apply the defendant police officer would have to have believed that the vehicle was in park and that belief would have to have been based on reasonable grounds.  In this case the defendant would not have succeeded based on the common law.  His Honour said (at [48]):

…  the evidentiary onus was discharged by the appellant when he gave evidence that he believed he had placed the transmission in park and considered it was safe to get out of the police vehicle.  As I have noted, the magistrate accepted this evidence.  It follows that the subjective element of the defence was not disproved.  However, the magistrate rejected the defence on the basis that the objective element was disproved.  The magistrate found the prosecution had proved that the appellant’s belief was not reasonable.  The magistrate found that leaving the engine on and the gear shift in drive was not a reasonable mistake of fact.

The paradox is that the common law requires the belief in facts (in this case that the car was in park and the brake applied) be both honest and reasonable in the circumstances.  The statutory defence in s 45 for emergency workers only requires that the belief be honestly held and that the actions of the emergency worker be a reasonable action in light of that belief.  The belief itself need not be ‘reasonably’ held.   His Honour noted the paradox and said:

I referred earlier to the paradox of the appellant succeeding on the defence created by s 45(4a) but failing on the defence of honest and reasonable mistake of fact. The appellant succeeds on the emergency worker defence where he failed on the Proudman v Dayman defence because the tests under each differ.  For the purposes of the Proudman v Dayman defence the issue is whether the appellant’s mistake of fact is objectively reasonable, while for the purposes of s 45(4a) the issue is whether the appellant’s acts are reasonable given the circumstances as he subjectively believed them to be. The Proudman v Dayman defence failed because the prosecution disproved the reasonableness of the appellant’s mistake in believing that the vehicle had been placed in park. On the other hand, the appellant made out the s 45(4a) defence because he proved that, at the time of the act and omission which constituted the offence of driving without due care, his act and omission was reasonable in the circumstances as he believed them to be.

There is a lower standard of behaviour expected of SA police and emergency workers than other road users.

Conclusion

The result here is surprising and I would suggest unique to SA given the terms of the Police Act and the Road Traffic Act (and the Fire and Emergency Services Act).  Explicitly extending protection to criminal liability is unusual and I am not aware of a defence such as the Road Traffic Act s 4(4a) in other jurisdictions.   It is an exemption that goes much further than that seen in rule 306 of the Australian Road Rules and discussed in other posts in this blog.

As a result, Police Officer Lumsden stands acquitted of the criminal charges.  He is also not civilly liable for any injuries caused to the motorcyclist however the Police Act 1998 (SA) s 65(2) does provide that the state of South Australia will carry any liability to pay compensation to the injured person.  The injured person is not denied his civil remedy to meet the costs of his injuries and losses, but Officer Lumsden is not guilty of any crime.

 

Categories: Researchers

Reporting inappropriate ambulance use in WA

Michael Eburn: Australian Emergency Law - 25 October, 2019 - 11:37

Today’s correspondent, a paramedic from WA, wonders:

What, if any, are the legal considerations should a registered paramedic in WA wish to contact an agency who holds some level of guardianship for a patient (for instance Department of Communities or Disability Services) to raise concerns over the patient’s welfare and management.

For some context, imagine a patient who utilises emergency ambulance transport on a daily basis. The patient lives in a government run hostel or group home environment. The paramedic believes the staff may not be providing a optimal and responsible care for the residents, as a resident will leave the facility on a daily basis, and will request members of the public to call them an ambulance, to which of course they oblige. The responsible support staff at the Hostel seem disinterested when contacted, and resigned to the situation, and will request the hospital sends the uninjured and physically well patient be sent back by ambulance (at further cost).

Is there any way that a paramedic who is concerned by this unnecessary drain on a already over stretched emergency service and the overcrowded hospital, not to mention the cost ($900+ daily for the ambulance alone) to the taxpayer, is able to attempt to involve directly the responsibility department to advise them of the situation? Or would this be a breach of patient confidentiality, or business confidentiality (disclosing official secrets) etc, or both. Or should the paramedic resign themselves to being powerless to address these issues? Assume that hypothetically they were working for company with no process, formal or otherwise to attempt to address such issues.

To a certain extent, paramedics employed by a state-owned ambulance service or a contracted service such as St John (WA), are employed to do the job that their service provides to the public. If the service wants to provide services to people in these circumstances, recognising that there is more to ambulance work than just urgent ambulance work, then that’s their call.

It’s a different issue if the concern is actually patient welfare.  A paramedic has a duty to take reasonable care of his or her patient.  That may not always mean using advanced clinical skills but can involve a more wholistic approach.

Then there is the question of exactly what is the level of ‘guardianship’ that is held (to use my correspondent’s language).  A person may be disabled either intellectually or physically but that does not mean they are not competent to make some decision nor does it mean that they do not still have rights including a right to privacy and that is a right not to have their clinician (in this case a paramedic) discuss their medical history with someone else.   If the ‘someone else’ is an appointed guardian or if there is consent, or if in all the circumstances a person would expect the information to be shared then no problem.   I note here that it’s ok for paramedics to share the clinical information they obtain with the triage nurse and treating hospital staff, that is why the information was collected and what everyone would expect them to do with it.  Whether that would extend to say the manager of a person’s residential care facility is another matter.

Part of the solution is for paramedics to be supported by their agency to refuse to treat/transport people who do not need their services, but I do note again that one has to take a wholistic approach.  It may not be what an intensive care paramedic sees as his or her job, but if the option is to leave a vulnerable person on the street without support, or to transport them home, then it may be quite an appropriate use of resources to transport them home recognising that an ambulance is not a taxi, but the whole person and all their circumstances do need to be considered.  If the person is in a hospital it would seem that a taxi may be appropriate but there may be no-one to pay for a taxi but the person may be entitled to free (to them) ambulance transport. One can see the economic reason for using an ambulance when the alternative is that there is no-one to pay for alternative transport.  If governments funded community transport that may be a different matter.

One can also understand why ‘The responsible support staff at the Hostel seem disinterested…’ they have limited resources and limited ability to control a person or direct their behaviour.   The department may also take a similar view – there is not much we can do and if the doctor’s authorise ambulance transport home that comes out of someone else’s budget.  How governments arrange their budget allocations is a matter for them so it may be that ambulance transport is the only transport available where someone is willing to pay for it, even if it is a ridiculous amount.

The way to deal with the matter, without breaching any duties, is to do research.  Actually get de-identified data of how many people are using ambulances where that is not clinically indicated and what that costs and then put that before government.

In particular cases if there is a legitimate concern about the patient’s welfare and wellbeing (rather than concern about the use of ambulance resources) that can be dealt with as with any handover, by raising it with the treating staff either at the facility or the hospital.  If the person is actually not competent to make decisions raising issues with guardians would also be legitimate.

If you work for a company that ‘with no process, formal or otherwise to attempt to address such issues’ then one might infer that they accept that providing this sort of work is part of what they do, and of course if they’re getting paid to do it, they may not think that’s a bad thing either in revenue terms and in terms of supporting the community’s vulnerable people.

Conclusion

One cannot really answer that question in the abstract.  The answer will depend on each case, in particular: Is the patient mentally competent to make decisions? When it is said ‘an agency who holds some level of guardianship’ what does that mean? Is there an appointed guardian? What services are meant to be provided? By whom? On what terms?

In terms of the paramedic’s response are they concerned about the use of ambulance resources or the patient’s well being?

The answers to those questions will be different with respect to each incident and how those questions are answered would make a difference on what may be a legitimate response to the paramedic’s concern.  It is not possible to make a general ‘yes’ or ‘no’ statement to the question ‘Is there any way that a paramedic … is able to attempt to involve directly the responsibility department to advise them of the situation?’

Categories: Researchers

Exposure to infectious diseases – WA

Michael Eburn: Australian Emergency Law - 24 October, 2019 - 13:44

Today’s correspondent is an

… ambulance officer working for St John Ambulance WA, I’m interested to know the rights of accessing a patient’s hospital medical record to obtain blood serology results of a patient, following a needle-stick or blood splash injury.

Obviously, should you be exposed to a potential infection source, it’s desirable to know the infectious risk of that particular patient (whether they already have e.g HIV, HEP C, HEP B)

Assuming that patient consent is forthcoming in regards to blood testing for HIV, HEP C etc, and also they consent to the disclosure of those results to the officer, it nonetheless has proven very difficult for an employee of the ambulance service (who has sustained such an injury either via needlestick injury or other bodily fluid high risk contact) to obtain results of the patient’s infectious status following the exposure.

Generally we are advised by hospital staff to ‘follow up with our own GP’ in order to obtain the patient’s serology results, despite the results being available on the hospital computer system. The advice being that ‘unfortunately, your rights to access this information are no different than those of a member of the public’. This seems unsatisfactory, as generally, Post Exposure Prophylaxis (PEP) should be commenced within 72 hours of exposure, and it would likely take much longer than this to obtain results via a GP.

Furthermore, nobody really wants to take a course of strong medication (PEP) if it is possibly unnecessary. It is important also to note in this situation that hospital staff seem to have a much more rapid and expedited access to those results, themselves being direct employees of WA Health. It also seems unsatisfactory as we have generally treated and transported the patient (on behalf of WA Health), been privy to the patient’s medical history and completed paperwork (on behalf of WA Health), and yet we are not entitled to any of the protections a WA Health worker would have (in regards to access to results once available).

Furthermore, this problem frequently extends to receiving notification of ‘notifiable communicable diseases’ from the office of the Chief Health Officer (under the Public Health Act 2016) with often a several week gap between a crew transporting a patient with a notifiable disease (such as meningococcal, measles or anthrax), and being informed of this within the ambulance service. I don’t know where the bottleneck occurs in this instance, but it is frustratingly persistent, and I do wonder if the hospital staff also wait weeks before being notified (I suspect not).

I suppose my questions are:

1)  does being a contractor for WA Health afford ambulance employees in WA any rights in regard to access to medical information (where consented), similar to that of a WA Health direct employee (doctor or nurse for instance)?

2) if not, would appropriate wording in the St John Ambulance service agreement or contract be able to confer any rights in regards to the above?

3) Would an injured workers GP even be able to request the medical results of a third party, who has no relationship with them (not their patient)?

4) is there a reasonable timeframe in which notification of a communicable disease should occur?

It’s true that most of the relevant law is in the Public Health Act 2016 (WA).  That Act provides for notification to be given to the Chief Health Officer and to allow the Chief Health Officer to notify people who may have come into contact with a notifiable infectious disease.  Medical practitioners are not free to simply tell others, including paramedics, about a patient’s medical condition even if it is in that person’s interests to know (see for example Giving feedback to paramedics (April 1, 2017)).

If the patient consents to the release of their information to the paramedics, then there should be no issue but then I guess the question is ‘who do you ask?’   Asking the ward nurse is likely to get a ‘no’ answer as he or she will not be in a position to correctly identify what consent has been given etc.  I can imagine a letter from your GP to the hospital is much more likely to get the results when the person answering the letter can confirm with the patient that the release of information is consented to.  I can also understand why the answer might be ‘take it up with your GP’ so that you don’t get the results in isolation but get them where a doctor can put then in context and where the doctor can comply with obligations under the Public Health Act to both inform you of obligations under that Act and to notify the Chief Health Officer (Public Health Act 2016 (WA) ss 94 and 97).

Hospital staff should have no more access to patient results unless they need that access to provide clinical care.  A person who is no longer involved in the patient’s care has no more right to access the patient’s records than the paramedics but one has to concede that they may have the ability to do so and may in fact do so.

My answers to the questions are:

1)  does being a contractor for WA Health afford ambulance employees in WA any rights in regard to access to medical information (where consented), similar to that of a WA Health direct employee (doctor or nurse for instance)?

No (or yes) depending on how you see it.  No they have no rights to access the patient information but neither to WA health employees unless they need to access it for patient care.  Where the patient has given consent then there should not be an issue but I can understand that they would only be prepared to release that information to your treating doctor as that information, if the answer is that you have been exposed to a infectious disease, imposes obligations upon you that must be explained.

2) if not, would appropriate wording in the St John Ambulance service agreement or contract be able to confer any rights in regards to the above?

No, the processes are set out in the Public Health Act.  No agreement between St John (WA) and the health service could override the patient’s right to have his or her information dealt with in accordance with the privacy principles and the Public Health Act.  If the patient consents to the release of information and if the information is that they do not have a infectious disease then there would be no legal barrier to releasing that information in accordance with that consent, but then the question is making sure you ask the right person and the ward nurse or ward clerk will not be the right person.

3) Would an injured workers GP even be able to request the medical results of a third party, who has no relationship with them (not their patient)?

Yes. Anyone can ask for anything – you don’t need legal authority to ask.  Could the GP demand those results? The answer to that is ‘no’. If that was the issue then the process of the Public Health Act are there to ensure that the Chief Health Officer is notified and he or she, in turn, can notify people who have come into contact with a patient with the notifiable infectious disease.

4) is there a reasonable timeframe in which notification of a communicable disease should occur?

There do not appear to be time limits prescribed by the Act or by the Public Health Regulations 2017 (WA).

See also Paramedics and Patient confidentiality (March 26, 2015).

Categories: Researchers

Doctors giving advice, not direction, to paramedics

Michael Eburn: Australian Emergency Law - 23 October, 2019 - 13:38

Today’s correspondent is:

… a nurse working in a busy ED in Melbourne.

Something that many of your readers will be familiar with (and hopefully something that gets more public attention from the Royal Commission into aged care) is the number of older people who are transported from nursing homes to hospital via ambulance for vague and non-specific symptoms. This is often because staff at the nursing homes (through no fault of their own) often have very limited clinical referral pathways.

Some of our older citizens may be admitted to hospital but many will be assessed, found not require any medical treatment and be sent home. This process is expensive, takes many hours and can be very distressing to patients and families.

I was having a discussion with one of our emergency consultants as to whether paramedics would be able to assess a patient and then phone through to a consultant and seek advice as to whether, in that consultant’s opinion, that patient would be likely to be offered any intervention at the receiving hospital. She replied that this had been considered at one stage however due to concerns around liability for the consultant offering advice, the idea had been shelved. She said that she would happily offer such advice to a GP because that GP was able to assess the patient, consider the advice of the ED consultant and make their own decision. In this case, the liability for a decision to recommend an ED would lie solely with the GP.

Given that Paramedics are a registered profession with recognised clinical autonomy (within their guidelines) and are able to accept or reject the opinion of an ED consultant based on their own clinical judgement. Is an emergency consultant at any greater liability risk when offering advice on transport to a Paramedic than offering such advice to a GP?

I do realise that you could apply this principal to any patient however I chose older people in residential care as an example as many of these people have complex needs and are probably at higher risk of iatrogenic harm if inappropriately transported to hospital.

In principle, I do not think ‘an emergency consultant at any greater liability risk when offering advice on transport to a Paramedic than offering such advice to a GP’.  The law doesn’t put doctors on some pedestal above paramedics (save that in most cases involving paramedics, it is doctors giving evidence, but that is changing).

The critical issue is always who is making decisions and are those decisions reasonable in all the circumstances.  Giving phone advice is always risky as the person on the non-patient end of the phone has to rely on the person with the patient to communicate the patient’s sign and symptoms and to accurately ask and answer questions.  That’s true when the person with the patient is a family member, a registered nurse, a registered medical practitioner or a registered paramedic.  The consultant on the phone has to try to understand what he or she is being told, form a view on the reliability of the person giving information and then make a reasoned decision based on that information.  It may well turn out that the information provided was incomplete or wrong.

On the issue of liability, the question is always ‘what happened? What went wrong?’ then ‘and who was responsible for that?’  If the person with the patient is a good communicator and clinician, the issue may be ‘did the ED consultant ask all the relevant questions?’  If the person with the patient is not a good communicator/clinician, the issue may be ‘should the consultant have understood from what he or she was being told that the person relaying information was not up to the task’.  Or the issue may be ‘did the person with the patient fail to properly give information that a reasonable person in that position would have given, or did they not properly understand the question and yet fail to say ‘I don’t understand’ etc in circumstances where there was no reason for the consultant to think they were not getting the whole picture’.  Liability would not depend on whether the person with a patient is a nurse, doctor or paramedic but on all the circumstances.

So why might a doctor have said ‘she would happily offer such advice to a GP because that GP was able to assess the patient, consider the advice of the ED consultant and make their own decision’ but not a paramedic?  I would suggest it comes down to trust.  The risk of liability is like any risk – it’s a combination of the probability of a poor outcome and how bad that outcome may be. Both matters will be reduced where the person on the end of the phone can be trusted to be both a good interpreter, relaying questions and answers, and a good clinician.  One doctor may feel confident that another doctor will meet both those criteria and therefore it reduces both the chance that the patient will have a poor outcome and that the outcome will be catastrophic.  On a doctor/doctor basis the doctor may also be confident that the doctor-on-the-end-of-the-phone has ethical and professional duties to the patient and carries professional indemnity insurance all of which can help spread the risk.

Now that paramedics are registered much of that is also true – at least with respect to professional duties and insurance. I suggest that the issue may be that ‘it’s early days yet’.  Paramedics are coming up to one year as registered health professionals.  They are coming from the background of jurisdictional ambulance services and practitioners who applied ‘protocols’ rather than clinical judgment.  Of course that is changing, and has changed, but not everyone including doctors will be up to speed on that or have developed the necessary trust in paramedics clinical decision making and observation to trust them to ‘make their own decision’ based on their own observations and the advice of the ED consultant.

I think that too is reflected in the sort of questions I receive or have received, about paramedics acting on doctor’s orders, the need for supervision of paramedic services by medical practitioners and the role of doctors and paramedics at accident and emergency scenes.  Both paramedics and medical practitioners need to recognise, and believe, that each have their own but overlapping areas of practice – that paramedics do not have to transport everyone, that paramedics can legitimately and professionally make recommendations to patients about treatment and transport and that they may refuse to treat and transport patients who do not need further care (see for example Transport everyone or act as a professional? A question for paramedics (May 6, 2013); No adverse comments regarding paramedics following death of a woman in Ballarat, Victoria (April 3, 2017); Paramedics and recording honest advice (April 15, 2018)).  Until that happens, it is likely that doctors will hold back for fear that the decision to transport or not will depend entirely on them ie that the paramedics will claim ‘once I rang the doctor it was the doctor’s decision whether I transported or not’ rather than ‘I rang the doctor and the information given was one more piece of information I considered when making my clinical decision/recommendation’.

Conclusion

If, by giving advice to paramedics, doctors are taking on the care of the patient and the paramedic will simply do, or not do, whatever the doctor says then yes, I would suggest that the ED consultant is facing a higher risk of liability if the patient outcomes are poor.  If, on the other hand, the ED consultant comes to accept that when dealing with either a doctor or a paramedic, he or she is literally a ‘consultant’ ie someone the treating doctor or paramedic is consulting with in order to better inform the treating practitioner’s decision then the risk will become the same and doctors may then be willing to give advice to both paramedics and other doctors.

Achieving that level of trust and respect will depend on how the now registered profession of paramedicine develops, proves itself as a clinically independent profession, and creates a niche of recognised professionalism.

 

Categories: Researchers

Plain English becoming jargon

Michael Eburn: Australian Emergency Law - 23 October, 2019 - 09:36

Today’s correspondent asks:

What is the difference between FIRST RESPONDER and FIRST RESPONSE?

I believe responder applies to medical/first aid and response applies to responding to fires/floods/police incidents etc.

Is there any clear cut legal definition (in Queensland)?

Language is an ever changing thing, as people invent or assign terms.  I am aware that the concept of ‘First Responder’ has grown in first aid/event health service circles as practitioners and companies adopt titles to distinguish skill levels, ‘First Aider’, ‘First Responder’, ‘Advanced Responder’, ‘EMT’ and, before 1 December 2018, ‘Paramedic’.    Those terms (other than ‘paramedic’ since the start of registration) mean whatever the person using the term wants it to mean.

So ‘first responder’ and ‘first response’ are just plain English language terms. ‘First response’ means the ‘reaction to something’ ‘coming before all others in time or order’.  The first response to a fire, flood etc is the first reaction.  First responders are those that respond first.  It is a truism that the first responders to nearly any event are not the emergency services but the people on scene.

In the emergency services context, first aiders may be badged ‘first responder’ but as I say, there is not ‘clear cut legal definition’ of what that means.  It means whatever the person putting the badge on the uniform wants it to mean.   In terms of ‘first response’ that may be a term of art in the fire, police and emergency services sector but how they use the term is a matter for them; again there is not legal definition of the concept.

Categories: Researchers

Involuntary treatment of the alcohol and drug affected in Tasmania

Michael Eburn: Australian Emergency Law - 17 October, 2019 - 11:45

Today’s correspondent is a paramedic from Tasmania who has questions regarding the Alcohol and Drug Dependency Act 1968 (Tas).  This Act allows for the detention and compulsory treatment of those with chronic alcohol or drug addictions.  My correspondent says:

From time to time we encounter patients who are dependent on alcohol or other drugs, and who are debilitated by virtue of acute intoxication, and/or chronic disease to the point that they may be a danger to themselves or to others. Typically, we might be called during an episode of acute intoxication and we might convey that person to the hospital for further assessment and management.

Typically, those patients are discharged from hospital following some short-term supportive care, such as monitoring, fluid replacement, and other supportive measures, and at a point where they have returned their capacity to make decisions and to function. Drug rehabilitation services outside of hospital are typically only available to voluntary admission patients and may not have spaces available at short notice.

Recently, a patient’s family member who was very concerned about the patient’s ongoing wellbeing on account of alcohol dependence and frequent admissions to hospital following binge drinking to the point of being comatose, brought to my attention the Alcohol and Drug Dependency Act 1968, which gives treatment facilities the legal ground to detain persons suffering from drug or alcohol dependence, and who may become, from time to time, a danger to themselves or to others, for a period of up to 6 months or more.

This was news to me. I had never heard of this Act. And it seems neither had any of the senior medical staff at the hospital that I spoke to about it. Never, in their knowledge, had this Act been used to detain a person suffering from alcohol or drug dependence. It was suggested to me that perhaps the Act was superseded by other provisions in other legislation. At any rate, it was suggested that legal advice would be needed before any patient would be held using the provisions of this Act.

If we consider the Mental Health Act 2013, it too has provisions for detaining unwell patients for the purpose of treatment. A person suffering from alcohol or drug dependence would not necessarily be captured by the Mental Health Act but might nevertheless have grave risks to their health and wellbeing stemming from their dependence.

My questions are:

  • Would this Act substantially be in conflict with any other existing legislation?
  • And, if an eligible patient presented to a treatment centre and was not considered for detention in accordance with the Act as part of their treatment plan, could there be a breach of duty of care by not doing so?

As a follow up my correspondent provided a link to the Department of Health and Human Services’ Review of the Tasmanian Alcohol and Drug Dependency Act 1968: Discussion Paper (September 2012).

Tasmania is not the only state to have laws to provide for the mandatory detention and treatment of those affected by alcohol.  Victoria has mandatory detention and treatment laws in the Severe Substance Dependence Treatment Act 2010 (Vic) and New South Wales has the Drug and Alcohol Treatment Act 2007 (NSW); there may be others but I didn’t locate them in a reasonably brief search.

The Alcohol and Drug Dependency Act 1968 (Tas) provides that certain mental health services can be declared a treatment centre for the purposes of the Act (s 15).  A person may be admitted to, and detained in, a treatment centre on the application of the person themselves, a relative or a welfare officer (s 23; ‘welfare officer’ is defined in s 16).   An application by a person other than the patient must be supported by a medical practitioner (s 24).  A person who has made an application may, within 14 days of the patient’s examination by the medical practitioner who wrote the necessary ‘medical recommendation’ detain and take the person to a prescribed treatment centre (s 26).  On the basis of the application and the medical recommendation a person can be detained for up to 6 months or further periods of the detention is extended (s 27). A person may be discharged from a treatment centre on the order of the superintendent of the centre (s 28) or an order of the Alcohol and Drug Dependency Tribunal (s 29).

There is no provision to allow ambulance officers to detain a person but s 58 says:

If a police officer finds in a public place a person who appears to him to be suffering from alcohol dependency or drug dependency and to be in immediate need of care or control, the police officer may, if he thinks it necessary to do so in the interests of that person or for the protection of other persons, remove that person to a place of safety for the purpose of enabling him to be examined by a medical practitioner and to be interviewed by a welfare officer and of enabling any necessary arrangements to be made for his treatment or care.

The Mental Health Act does indeed provide for detention and involuntary treatment, but a person is not considered mentally ill because they are intoxicated (s 4(2)(k)).

To turn to the questions.

  • Would this Act substantially be in conflict with any other existing legislation?

No, the Act has been maintained and updated to ensure that it is consistent with other legislation.  The Alcohol and Drug Dependency Act 1968 (Tas) s 6 says:

Except as otherwise expressly provided therein, nothing in this Act prejudices or affects the operation of the Mental Health Act 2013, and the fact that a person is, or appears to be, suffering from alcohol dependency or drug dependency does not of itself prevent the making of any application, order, or direction under that Act in respect of him.

Where a person is being assessed a medical practitioner, a welfare officer or others would have to consider whether or not a person is mentally ill within the meaning of the Mental Health Act.  The mere fact that a person is intoxicated does not mean they are mentally ill, but neither does it mean they are not mentally ill.  So, a practitioner would first have to consider that issue. If he or she determined that the patient did not meet the definition of mental illness then they would have to consider whether the person (Alcohol And Drug Dependency Act 1968 (Tas) s 24):

(a) … is suffering from alcohol dependency or drug dependency to a degree that warrants his detention in a treatment centre for medical treatment; and

(b) that it is necessary in the interests of his health or safety or for the protection of other persons that he be so detained.

If they are not mentally ill but do meet the criteria in s 24 then consideration could be given to action under the Alcohol and Drug Dependency Act.

  • And, if an eligible patient presented to a treatment centre and was not considered for detention in accordance with the Act as part of their treatment plan, could there be a breach of duty of care by not doing so?

I doubt it.  First a duty of care arises to ensure that one does not cause harm, not to ensure that harm is not suffered (see Stuart v Kirkland-Veenstra [2009] HCA 15; Graham Barclay Oysters v Ryan (2002) 211 CLR 540; see also the discussion in No duty to prevent a disaster and no duty to rescue (December 26, 2018)).   That’s not to say the argument is impossible, that is once the person has entered into a therapeutic relationship the medical staff do owe a duty to consider all treatment options and to provide reasonable care for the specific patient.

Medical practitioners do not have the authority to detain a person, the application has to be made by the person, their relative or a welfare officer, but a treating practitioner could suggest to one of those persons that they should make the application and the practitioner could provide the necessary supporting ‘medical recommendation’.  Whilst a medical practitioner could not be liable for not detaining the person, because they don’t have the power to do so (Stuart v Kirkland-Veenstra [2009] HCA 15) one could at least see the argument that they could be liable for not advising those who could make the application if they were of the view that the patient’s condition met the criterial in s 24, above.

I don’t know the clinical thinking of course, but it may that doctors are reluctant to make recommendations, even if they know of the Act, because there may be some questions about whether mandatory detention and treatment actually works (see for example the evaluation of the Alcohol Mandatory Treatment Act (NT), now repealed).

Conclusion

The Act exists and continues to sit beside the Mental Health Act 2013 (Tas).  It’s provisions are there to be used in the right circumstances.  If doctor’s don’t know of it that is a gap in their education and perhaps a gap in promotion by the relevant department.  It may be that the Act is no longer considered ‘good’ or ‘best practice’ but I cannot comment on that.   My brief answers are:

  • Would this Act substantially be in conflict with any other existing legislation?

No; and

  • And, if an eligible patient presented to a treatment centre and was not considered for detention in accordance with the Act as part of their treatment plan, could there be a breach of duty of care by not doing so?

That would be difficult but not an impossible argument to make.  The treatment centre’s obligation would be to get a welfare officer involved or to suggest to the family that they make an application.  The application cannot come from a medical practitioner but must be supported by a medical recommendation.

 

 

 

 

Categories: Researchers

Qld volunteers as self-help security

Michael Eburn: Australian Emergency Law - 14 October, 2019 - 11:43

A correspondent from Queensland says:

Some SES and ES depots have been subject to break and enter; more common in rural areas. Some have discussed having someone sleep on site to prevent or discourage such theft.  What force could that volunteer use to prevent ingress? What force could they use to detain the intruder?  And would you mind reflecting on the various reasons of why that approach to ES depot security isn’t a good idea?

Queensland has a criminal code that is meant to contain all the law in one place (the Criminal Code is set out in Schedule 1 of the Criminal Code Act 1899 (Qld) and is referred to hereafter as ‘the Code’). The Code says that a person is not criminally responsible for an act where (s 31(d)):

(i) the person does or omits to do the act in order to save himself or herself or another person, or his or her property or the property of another person, from serious harm or detriment threatened to be inflicted by some person in a position to carry out the threat; and

(ii) the person doing the act or making the omission reasonably believes he or she or the other person is unable otherwise to escape the carrying out of the threat; and

(iii) doing the act or making the omission is reasonably proportionate to the harm or detriment threatened.

One cannot answer what force the volunteer could use because it depends on what he or she believes (s 31(d)(ii)) and what the judge or jury thinks is, or was, ‘reasonably proportionate’ to the harm.  Injuring people to protect property may well be excessive force.

If a person is committing an offence for which they can be arrested without warrant, then ‘it is lawful for any person who finds another committing the offence to arrest the other person without warrant’ (ss 546, 548).  ‘Reasonably necessary’ force may be used in making an arrest (s 254).

Why is this suggestion not a good idea?

If you are expecting volunteers to use force you are asking them to second guess what a judge or jury might consider ‘proportionate’ and to also understand what offences the intruder may or may not be committing and whether or not they are offences for which a person may be arrested without warrant.  It is simply putting the volunteer in harm’s way.

If one felt that sleeping in the unit was a deterrent the advice would have to be don’t use any force to stop the intruder or arrest them.  You are only there as a witness, observe and report what you observed but even still volunteers are being put in harm’s way in a way that should never happen.

If security is required employ a security guard, get an alarm installed, install better locks and window guards.  Don’t ask volunteers to form vigilante groups. The protection of the assets cannot be worth the risk.

 

 

Categories: Researchers

Making decisions for others in WA

Michael Eburn: Australian Emergency Law - 14 October, 2019 - 11:12

A paramedic from Western Australia has a question about a patient’s capacity and the decision of a person who holds the patient’s ‘power attorney’.  My correspondent

Went to elderly patient who lives alone and has ongoing mobility issues. Her daughter called us as she couldn’t get her mother out of chair.  Arrived, patient refusing hospital just wants help to get up.  We help she goes to toilet and sits back down under her own strength. The patient is fully orientated to day place time situation and consequences of not going to hospital. Daughter won’t take patient to her house. Daughter states has medical power attorney says we have to take her mother to hospital against her will but couldn’t show us the documents. Where do we stand if don’t take her and hypothetically patient falls later in night and hurts herself family complain, or we force her to go and she complains does capacity override power of attorney and does POA take patient rights away?

Let us, for the sake of dealing with the actual issue of the patient versus her attorney, put aside the fact that the daughter ‘couldn’t show us the documents’.  Let us assume that she did have the documents to hand.  We also need to be careful with language. Usually a ‘power of attorney’ is a power to deal with people’s property (see Transfer of Land Act 1893 (WA) s 143).  There is another term if what we mean is a power to make medical decisions on behalf of a person.

In WA the relevant legislation is the Guardianship and Administration Act 1990 (WA).  This Act provides for the appointment of a guardian, the creation of an ‘enduring power of attorney’ and the appointment of an ‘enduring guardian’ and for decisions about medical care to be made by ‘Persons responsible for patients’.

A guardian can be appointed (Guardianship and Administration Act 1990 (WA) s 43) where a person:…

(b) is —

(i) incapable of looking after his own health and safety;

(ii) unable to make reasonable judgments in respect of matters relating to his person; or

(iii) in need of oversight, care or control in the interests of his own health and safety or for the protection of others;

and

(c)         is in need of a guardian…

It would sound, from the story given, that the patient does not meet the criteria in s 43(b) so I will assume that the daughter was not an appointed guardian.

A power of attorney ceases to operate when a person loses legal capacity.  An enduring power of attorney, on the other hand, allows the attorney to act on the person’s behalf even if the person who granted the power of attorney is no longer competent. It is still the case though that a power of attorney relates to property, not personal care. (Guardianship and Administration Act 1990 (WA) Part 9).

A person can appoint someone as their enduring guardian.  A enduring guardian can make health care decisions for a person (ss 45, 110G and 110ZJ) but can only act where the person who appointed them as enduring guardian ‘is unable to make reasonable judgments in respect of matters relating to his or her person’.

In the context of my correspondent’s story, even if the daughter was appointed as enduring guardian, she is not authorised to make a medical decision where her mother remains competent – ie ‘fully orientated to day place time situation and consequences of not going to hospital’.

A ‘person responsible for a patient’ (which includes a child of the patient) can make decisions about a person’s medical care (s 110ZD) if the person:

… is unable to make reasonable judgments in respect of any treatment proposed to be provided to the patient, the person responsible for the patient under subsection (2) may make a treatment decision in respect of the treatment.

The list of persons responsible is a hierarchical list that is, there is an order of priority. The first person on the list is a spouse, and then a child.  If we assume that my correspondent’s patient was not married or in a defacto relationship then the daughter would be the, or if there is more than one child one of, the person’s responsible, but they still cannot make a decision where the patient remains competent.

Conclusion

Of course I cannot know but the story, as told, would imply that the daughter wanted paramedics to transport her mother as that would be easier for her than having to care for her mother in her mother’s home or in her own home.    Whilst paramedics and hospitals may accept that there are, sometimes, grounds for a social admission (ie admission where the person needs looking after even if they don’t really need medical care) that cannot compel a person who remains competent to accept treatment just because it is easier for someone else.

Where the person remains competent then it is their decision to accept treatment and transport or not.  The concept of the ‘person responsible’ only arises when a person is not competent.   The daughter is not a ‘person responsible’ for her competent mother’s decision making.

If the daughter has been appointed an enduring guardian, they can only act where the patient is incapable of acting.  Where the person ‘is fully orientated to day place time situation and consequences of not going to hospital’ then the decision to stay, or go, is theirs and theirs alone.

If the ‘patient falls later in night and hurts herself’ then that is the same as anyone who falls and hurts themselves. Ambulance services are not there to guarantee that nothing bad happens to anyone.  One would want to hope that your findings were documented but at the end of the day a person’s decision to accept or reject treatment and transport is theirs to make.

Where paramedics to ‘force her to go’ that would be the torts of both assault and false imprisonment and also the crime of assault.  The appointment of a person as an enduring guardian does not take away a person’s rights to make their own decisions whilst they can. It is only relevant if a person is not competent.

Where a person has been appointed as a guardian by the State Administrative Tribunal then that guardian can make decisions that appear contrary to the patient’s wishes, but the Tribunal can only appoint a guardian if the person meets one of the criteria listed in s 43(b), and that will not be relevant in the circumstances described.  If however the person can present an appointment from the State Administrative Tribunal (rather than from the patient) then you would have to infer that despite appearances to the contrary, the patient has been found to be ‘incapable of looking after his own health and safety’ or otherwise incompetent, and so the decision of the guardian should be respected.

A person’s age does not lose the right to make decisions for themselves just because they are old, or because their adult children wish they would make a different decision.

Categories: Researchers

Paramedics and the mentally ill – Queensland – An update

Michael Eburn: Australian Emergency Law - 14 October, 2019 - 10:14

In response to my post Paramedics and the mentally ill – Queensland (February 13, 2014) a correspondent wrote:

I was wondering if you have any thoughts on move away from EEO’s under the Mental health act, to EEA’s under the Public Health Act 2005 (Section 157). It seems that it only increases the opportunities for abuse.

My original post, written in February 2014, discussed the Mental Health Act 2000 (Qld) s 33. The Act of 2000 was repealed and replaced by the Mental Health Act 2016 (Qld). There is no power in the 2016 Act for an ambulance officer to make an Emergency Examination Order. The power of ambulance officers to detain and treat a mentally ill person are now contained in the Public Health Act 2005 (Qld) Chapter 4A.  My correspondent says:

… it seems to me the wording in the public health act seems to be much more “Catch All” than the wording in the repealed Mental Health Act.

For example – it seems to me that an injured person who was intoxicated and refusing treatment for a serious injury, could be detained and transported to hospital, even if they patient was assessed to have the capacity to refuse treatment.

The original poster was concerned that the powers under the repealed Mental Health Act were being applied too broadly – and it now seems that the EEA in the Public Health Act are even more broad.

Chapter 4A of the Public Health Act 2005 (Qld) doesn’t claim to deal with people who are mentally ill, instead it refers to ‘Persons with Major Disturbance in Mental Capacity’.  Section 157B says:

(1) This section applies if an ambulance officer or police officer believes—

(a) a person’s behaviour, including, for example, the way in which the person is communicating, indicates the person is at immediate risk of serious harm; and

Example—
a person is threatening to commit suicide

(b) the risk appears to be the result of a major disturbance in the person’s mental capacity, whether caused by illness, disability, injury, intoxication or another reason; and

(c) the person appears to require urgent examination, or treatment and care, for the disturbance…

(3)       The ambulance officer or police officer may detain the person and transport the person to a treatment or care place.

Section 157L says:

An ambulance officer or police officer may exercise the power to detain and transport a person under this chapter with the help, and using the force, that is necessary and reasonable in the circumstances.

It’s true this is a very broad power. Under the Mental Health Act 2000 (Qld) an ambulance officer had to be satisfied that the patient was suffering from a mental illness, that was ‘a condition characterised by a clinically significant disturbance of thought, mood, perception or memory’ (Mental Health Act 2000 (Qld) s 12, now repealed).  Under this new test what is required is a belief that the person has a ‘major disturbance in the person’s mental capacity, whether caused by illness, disability, injury, intoxication or another reason’ (emphasis added). That allows a much greater range of causes to be considered.

What is ‘mental capacity’ and therefore what is a ‘major disturbance in the person’s mental capacity’ is not defined.  It follows that I think my correspondent is correct, the powers in the Public Health Act would allow ambulance officers to detain and treat, with force if necessary, a ‘person who was intoxicated and refusing treatment for a serious injury … even if they patient was assessed to have the capacity to refuse treatment’ provide that there was a ‘major disturbance in the person’s mental capacity’.  It would not allow action just because the person refused treatment – there is a still a right to refuse treatment – there has to be a ‘major disturbance in the person’s mental capacity’ which may be present even if they are still competent to understand the information being given.

Were a paramedic to act under s 157D and were the patient to allege false imprisonment there would, I suggest, be detailed examination of the basis upon which the paramedic made the assessment that there was a ‘major disturbance in the person’s mental capacity’ rather than an assessment that the person was not making a wise decision.  And if it was agreed or established that the person could ‘at the time the decision had to be made, the person could understand its nature and effects’ (see Victorian decision on refusing medical treatment – reviewing the principles (November 24, 2018)) there would have to be a ruling on whether or not that was consistent with a finding of a ‘major disturbance in the person’s mental capacity’.

A court may determine that a finding that a patient retains competence (as defined in, for example, PBU & NJE v Mental Health Tribunal [2018] VSC 564, In Re C (Adult: Refusal of Treatment) [1994] 1 WLR 290 and Gillick v West Norfolk and Wisbech Area Health Authority [1986] 1 AC 112) means that they do not have a sufficiently ‘major disturbance in the person’s mental capacity’ but equally a court may find that the issue depends on all the circumstances.  Until that issue is resolved paramedics and police will have to make their own decision on whether the patient’s behaviour represents a ‘major disturbance in the person’s mental capacity’ or just an unwise decision.

Compare the Queensland Act to the NSW Act

It is interesting to compare the Public Health Act 2005 (Qld) with the Mental Health Act 2007 (NSW) s 20 as discussed in my post Mental Health Act 2007 (NSW) s 20 – a summary of my current thinking (October 7, 2019).  In that post I said I do not think the NSW Act allows paramedics to detain and treat a person who retains capacity to consent, even if they are mentally ill.   One reason for that thinking was the omission of the words ‘apprehension’ or ‘detain’ from s 20 but the use of those words in ss 18 and 22.

The Queensland Act does allow paramedics to ‘detain’ a person and specifically allows them to use force in the process.  If I’m correct in my analysis of the NSW Act then, by the same logic, the use of the word ‘detain’ in s 157B(3) of the Queensland Act does imply that treatment can be imposed against a patient’s wishes, suggesting a person can be Gillick competent but still have a sufficiently ‘major disturbance in the person’s mental capacity’.  Further the use of that language in the Queensland Act is further evidence that if s 20 of the NSW Act was meant to mean what many paramedics thinks it means, ie they can detain and treat a person against their competent wishes it would, as the Queensland Act does, use that sort of language.

As another interesting comparison, the Queensland Act says (ss 157D and 157E)

If the ambulance officer or police officer takes the person to a treatment or care place that is a public sector health service facility, the officer must immediately make an authority (an “emergency examination authority” ) for the person…

And

A person subject to an emergency examination authority may be detained in a treatment or care place that is a public sector health service facility for a period (the “examination period” ) of not more than 6 hours starting when the authority is given to the health service employee under section 157D (4) .

Again, many NSW paramedics think that s 20 allows them to make some sort of detention order.  Section 20 (unlike the Public Health Act 2005 (Qld)) says no such thing.    It says that the paramedics can take a person to a mental health facility and (s 18) the mental health facility may detain the person. There is not prescribed form or ‘order’ from a NSW paramedic.  The paramedics may hand over a patient care record where they have recorded the information that supports their belief ‘on reasonable grounds that the person appears to be mentally ill or mentally disturbed and that it would be beneficial to the person’s welfare to be dealt with in accordance with [the Mental Health] Act’ but it is not an ‘order’ nor does the action by the paramedics authorise detention as the Queensland order does.  In NSW because transport is to a mental health facility, not just any health facility, the power to detain lies with the health facility who may act on the information to detain the patient but are not ‘authorised’ by the paramedics to detain the patient, the authority lies with the mental health facility (see Revisiting the Mental Health Act 2007 (NSW) s 20, again (May 13, 2019); see also Is it legal to photocopy a ‘section 20’? (February 4, 2018)).

It seems to me the Queensland Act lends weight to my view on the NSW Act. The NSW Act does not allow detention of a competent person against their will nor does it give NSW paramedics the power to order or authorise anyone else to detain the patient.  The NSW Act says paramedics can take a person to a mental health facility.  If it meant more than that it could much clearer language and the fact that Queensland has done so would lend weight to any argument that if NSW meant the law to have the same effect, they would use the same sort of language.

Categories: Researchers

Establishing an ‘Other Safer Location’ in NSW

Michael Eburn: Australian Emergency Law - 12 October, 2019 - 18:43

Today’s correspondent

…  would like to ask two related bushfire questions.

In 2013, you said, “It is up to the Commissioner of the RFS, not the council, to identify a neighbourhood safer place (s 62C(1)). The Commissioner may only designate a place as a neighbourhood safer place if the owner or occupier consents, but that provision does NOT apply if the premises are owned by a public authority.”

Since then, NSW RFS has also put forward the concept of an Other Safer Location (OSL), defined as, “A place that individuals have personally assessed and decided is a safer option relative to their situation” https://www.rfs.nsw.gov.au/__data/assets/pdf_file/0017/26135/NSP-Guidelines.pdf.

My questions:

(1) Is a community hall that is not council owned but owned by the local Progress Association considered to be owned by “a public authority”? I’m assuming not, but would like confirmation.

(2) What would be the liability issues if our local Progress Association (of which I am the Hon Secretary) were to offer our community hall as an OSL?

The 2013 comment referred to in the question can be found in my post Liability for neighbourhood safer places (May 6, 2013).   Provisions dealing with neighbourhood safer places are found in the Rural Fires Act 1997 (NSW) Part 3A.

As my correspondent has noted, in the document ‘Neighbourhood Safer Places Guidelines for the Identification and Inspection of Neighbourhood Safer  Places in NSW’ the Rural Fire Service defines Other Safer Locations  as ‘A place that individuals have personally assessed and decided is a safer option relative to their situation’ (p. 5).   At p. 4 the Guidelines say:

The concept of personally identified safer places or other Safer Locations form part of NSW RFS’s community engagement and education strategies. It focuses on encouraging all people living in bush fire prone areas to have considered local options for shelter if their primary Bush Fire Survival Plan fails. This might include options such as a neighbour’s house that is better prepared and has greater setbacks from the bush fire hazard.

And at p. 6:

In some instances there may not be a Neighbourhood Safer Place identified in a local area or close to homes. In these circumstances people should ensure they have identified other safer locations or that they have alternative back up options as part of their Bush Fire Survival Plan.

I can now turn to the question asked:

(1) Is a community hall that is not council owned but owned by the local Progress Association considered to be owned by “a public authority”? I’m assuming not, but would like confirmation.

I cannot answer that as I do know the legal status a ‘Progress Association’.  Assuming the Association is incorporated under the Associations Incorporation Act 2009 (NSW) and as my correspondent suggests, the title of the Hall is vested in the Association and not a local or state government entity then it would not be a public authority.  But a definitive answer to that question would require looking at the constituent documents of the Association and doing a title search on the relevant building.  But, for the sake of answering question 2 I will assume that the Progress Association is not a public authority.

(2) What would be the liability issues if our local Progress Association (of which I am the Hon Secretary) were to offer our community hall as an OSL?

It would seem contrary to idea of the Other Safer Place to offer a ‘community hall as an OSL’ because who is making the assessment that it is ‘safer’?  Safer than where?  The best that could be done is to say that during a fire danger period the hall will be open and available if local residents form the view that the hall is safer than their other alternatives.

To make the hall available as an ‘other safer place’ implies that it has been assessed and that it is ‘safer’ but the idea of the Other Safer Place is that individuals have made their own assessment of what is safer, for them, should their ‘Plan A’ fail.

If the Progress Association wants to promote the hall as a safe place they would be better off to offer it to the Rural Fire Service as a Neighbourhood Safer Place which would ensure that it was assessed as suitable and would also provide some liability protection (Rural Fires Act 1997 (NSW) s 62H).

Conclusion

I cannot see liability issues if the Association says: ‘the Hall will be open, and if, in your assessment, it is safer than other options you are welcome to come here’.  Whilst the risk of liability is low there could indeed be liability issues if the Association says: ‘this Hall is a safer option’ because that implies that they have made the sort of assessment required for a ‘neighbourhood safer place’ and people may rely on that assessment, rather than their own assessment of where is safe. If it turns out that it was not in fact safe and had not been properly assessed there could be difficulties for the Association.

 

Categories: Researchers

Paramedic registration does not affect scope of practice

Michael Eburn: Australian Emergency Law - 10 October, 2019 - 16:10

Today’s correspondent:

… was doing some reading I came across on Duty of Care.  Before Christmas, before registration of Paramedics came in, I was regarded as a Paramedic as I do have the diploma of Paramedical Science, then Registration came in after Christmas and unless your Registered you can’t call yourself a Paramedic, I am now wondering about this question:- if I was to attend a vehicle accident, or an industrial accident, where now does that put me with the law, as I am qualified as a Paramedic before Christmas I could use all skills and meds for my level of training, now after Christmas if I don’t use all my skills and knowledge and someone dies because of that reason, could I be charged for not using all my skills and knowledge that I could have used before Christmas?  Where do all of us stand as far as treating someone who hold the diploma of paramedicine? Do we withhold certain treatment because we are not registered and sadly watch the patient deteriorate, or do we do what we are trained for?  Will we be charged for holding back treatment because of the stupid registration process that was rushed through and be charged for not doing what we used to be able to do, or do we do what we can for the patient and still be charged. Where do we stand with the law?  It seems a very grey murky area.

It’s not grey or murky at all.   With due respect to my correspondent the question suggests a misunderstanding on what registration means.

Registration under the Health Practitioner Regulation National Law is about title protection, not scope of practice.  Since December 2018 only a registered paramedic can use the title ‘paramedic’ and it is indeed an offence to use the title if you are not registered (Health Practitioner Regulation National Law, Division 10).  The law however says nothing about scope of practice, that is there is nothing that is inherently paramedic practice or that only a registered paramedic can do.

For my correspondent the difference is that before 1 December 2018 he or she could use the title ‘paramedic’.  After that date (assuming he or she had not applied for registration before that date and the application has not been decided (see Paramedicine Board, Fact sheet: Using the title ‘paramedic’ after 1 December 2018) he or she is no longer entitled to use the title ‘paramedic’.  But my correspondent is still trained to do all the things that he or she did before 1 December.

The use of medication is complex but I’ll assume that my correspondent either had personal authority or was employed by and endorsed by a person with a relevant authority (see The last word on scheduled drugs? (September 29, 2019)).  The authority to carry drugs does not (yet) come with registration as a paramedic so, depending on the wording of any drugs authority, registration won’t have made a difference.

Subject to the fact that I have not seen whatever drug authority my correspondent works under the simple answer will be that registration makes no difference to his or her scope of practice.

My correspondent is as qualified now as he or she was before Christmas. They can use all skills and meds for their level of training. After 1 December 2018 they still have those skills and training and if they are going to treat an injured person, they should use them.  There is no legal impediment to doing what you can to help a person in need.

My correspondent should not withhold certain treatment because he or she is not registered because there is no treatment that only a registered paramedic can administer.

Do what you are trained to do.  Registration is irrelevant. The only thing you cannot do is use the title ‘paramedic’.

Categories: Researchers

Mental Health Act 2007 (NSW) s 20 – a summary of my current thinking

Michael Eburn: Australian Emergency Law - 7 October, 2019 - 12:02

I have been having correspondence with a fellow lawyer on the Mental Health Act 2007 (NSW) s 20. I have written multiple posts on this subject – see https://emergencylaw.wordpress.com/?s=%22Mental+Health+Act+2007+%28NSW%29%22.  Writing to a fellow legal practitioner forced me to think about, and summarise, the position that I have come to over the years of writing this blog.  I share that summary below:

I am more and more of the view that the Mental Health Act 2007 (NSW) s 20 does not say what paramedics think it says.  Section 20 (‘Detention on information of ambulance officer’) says:

(1) An ambulance officer who provides ambulance services in relation to a person may take the person to a declared mental health facility if the officer believes on reasonable grounds that the person appears to be mentally ill or mentally disturbed and that it would be beneficial to the person’s welfare to be dealt with in accordance with this Act.

(2) An ambulance officer may request police assistance if of the opinion that there are serious concerns relating to the safety of the person or other persons if the person is taken to a mental health facility without the assistance of a police officer.

It says paramedics may take a person to a mental health facility, but it does not say that they may take them if they are competent and refuse treatment – see https://emergencylaw.wordpress.com/2019/09/29/using-force-under-the-mental-health-act-2007-nsw/.  There is no reference to ‘apprehend’ or ‘detain’ in s 20 but those words are used in sections:

  • 18 (‘When a person may be detained in mental health facility’);
  • 21 (‘Police assistance’); and
  • 22 (‘Detention after Apprehension by Police’).

Compare, too, the differences in the section headings – the heading to s 20 refers to detention by a mental health facility on the ‘information of an ambulance officer’ whereas s 22 refers to detention by a mental health facility after a person has been ‘apprehended’ by police.  Section 20 is not entitled ‘Detention after apprehension by an ambulance officer’.

The inference is: given the power to detain or apprehend is given in ss 18, 21 and 22, the failure to use those words in s 20 must imply that it is not intended that paramedics have those powers.

I have also been persuaded that s 81 does not authorise paramedics to forcibly treat a person who is competent but refuses consent (again, see https://emergencylaw.wordpress.com/2019/09/29/using-force-under-the-mental-health-act-2007-nsw/).  Section 81 says that a person authorised to take a person to a mental health facility may use force (s 81(2)) and sedation (s 81(3)).  But if s 20 only authorises an ambulance officer to take someone who consents, or who is unable to consent then s 81 can only apply in those circumstances.  It does not expand a paramedic’s authority to use force or sedation to detain a person who, although mentally ill, remains competent and refuses treatment and transport.

If s 20 and s 81, when read together, did allow the use of force and sedation to treat a mentally ill person who remains competent but refuses treatment then there would be no need for s 22(2).  That subsection specifically calls up, and gives to police the power, to use force and other measures listed in s 81.    I would argue that the reason s 22(2) is there, with no equivalent in s 20, is to allow the administration of force, and sedation, to a person who has been ‘apprehended’ by police and is therefore being subject to enforced treatment.  In other words s 22(2) when read with s 81 allows police to detain a person who is mentally ill, competent and refusing treatment but the absence of the word ‘detain’ and the absence of an equivalent to s 22(2) in s 20 means that paramedics do not have that power.

In summary, my view is that:

  • If a person is not competent to give consent then the doctrine of necessity (https://emergencylaw.wordpress.com/2017/01/31/4203/) justifies treatment and s 20 allows the paramedics to bypass the nearest hospital to go to a mental health facility whilst at the same time providing clinically indicated treatment (that may include restraint or sedation). The power to give that treatment where the patient cannot consent (as opposed to refuses to consent) is also supported by s 81.
  • Where a person does consent, they can be transported to a mental health facility and given whatever treatment they consent to. Once at a mental health facility, the facility may choose to detain the person pending examination by an appropriate practitioner, based only on the paramedic’s assessment (s 18).
  • If a person remains competent and refuses consent s 20 does not, in my view, authorise detention of the person and treatment without consent by ambulance officers.  Paramedics who fear the person will, if transported by ambulance, be a threat to themselves or others, need to call police (s 20(2)) who have the power to ‘apprehend’ the person and the police must exercise that power when requested to do so by paramedics (s 21(1)).  The problem here is that this only applies if the patient will pose a threat if transported by ambulance.  If the reason they will pose a threat is because they don’t want to be transported but they remain competent, mentally ill, but no threat to others if not subject to enforced transportation,  then there is no power under s 20 to compel them to come with the paramedics and therefore no power to call for police assistance (s 20(2)).  It would be perverse if police could detain a person who poses no threat but may pose a threat if forced to receive treatment that they do not want.  It seems to me s 21 is relevant for a person who is not competent to consent to or refuse treatment and who poses a threat to him or herself or others including the treating paramedics.  In those circumstances s 21 may authorise police detention (to avoid claims of false imprisonment) and allow police to use the force that they are trained to use whilst both the common law and, arguably, s 81 justify appropriate treatment in the absence of consent.  I cannot see that treatment in the presence of an express or implied, competent refusal of consent is authorised by s 20 and therefore s 21 would not authorise treatment, and force, where the only reason the person is a threat is because he or she is exercising his or her right to refuse treatment (see https://emergencylaw.wordpress.com/2015/10/05/tasmania-alcohol-affected-patient-refuses-treatment-and-is-not-guilty-of-assaulting-police-part-2/).
  • If a person is or appears to be mentally ill, remains competent, is refusing treatment and transport and:

 … is committing or has recently committed an offence or … has recently attempted to kill himself or herself or that it is probable that the person will attempt to kill himself or herself or any other person or attempt to cause serious physical harm to himself or herself or any other person

then police can act under s 22.  Further, if police take action under s 22 that ‘calls up’ the powers for compulsory treatment under s 81.  That is essential as it allows the treatment to be given even when the patient refuses consent.  If police have acted under s 22 then they are authorised to take the person to a mental health facility or to seek assistance from ambulance (s 81).  Paramedics who transport a patient who has been apprehended by police under s 22 could then rely on s 81 to restrain or sedate the competent patient contrary to the patient’s wishes.

Conclusion

If a person is or appears to be mentally ill, remains competent, is refusing treatment and transport and is not committing an offence or posing a threat to him or herself or to others, then there is no power in either ss 20 or 22 to detain the person and treat them against their will (see also Stuart v Kirkland-Veenstra [2009] HCA 15).

The use of force is limited to police and only in cases where a person is a threat to themselves or others (s 22), not just where it would be in the patient’s best interests. This is consistent with the aims of the Mental Health Act to restrict the application of non-consensual and forced treatment (see Mental Health Act 2007 (NSW) ss 3 and 12).

What follows is that I am increasingly of the view that, absent police action under s 22, the Mental Health Act 2007 (NSW) does not give ambulance officers the power to detain and treat a person who is mentally ill, competent and refusing consent to treatment/transport.   Further police action under s 22 can only be justified where the person is committing an offence or posing a threat to themselves or others.  Compulsory treatment and transport, just because it would be in the patient’s best interests is not justified under ss 20, 21 or 22.

This is all matters of complex legality.  Deciding whether a mentally ill person remains competent that is whether, at the time that a decision has to be made, the person can understand its nature and effects (PBU & NJE v Mental Health Tribunal [2018] VSC 564, [154] (Bell J); see https://emergencylaw.wordpress.com/2018/11/24/latest-decision-on-refusing-medical-treatment-reviewing-the-principles/) is no doubt a complex clinical question.

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