Today’s question is interesting as it’s a true forward thinking academic question.

I’m asked:

Now that paramedics are a registered health profession, I’ve had the same conversation with quite a few colleagues who, like me, envision fully autonomous paramedic practitioners becoming a reality in Australia.  Those conversations usually revolve around the question ‘what next?’ in terms of expanding the capabilities of the profession.  As far as we can see there are four major legal hurdles: (1) the ability to bill directly to Medicare, (2) the ability to prescribe medications, (3) the ability to refer to medical specialists, and (4) a ‘drug license’ (for lack of a better term) that allows us to autonomously take authority for medications, i.e. paramedics taking ketamine out of a pharmacy under their own authority for their medical kit in a trekking expedition they’ve been hired to take care of.  I recognise that some paramedics in some parts of the country can do some of these things, but I don’t believe there are paramedics anywhere in Australia that can do them all.

My question for you, from your perspective in law, is this: do you think these are all necessary, and do you think that in sum these four would be sufficient, or do you believe that there are other major steps that we need to take to become fully autonomous medical professionals?

I suppose one cannot answer the question until you define what you think makes a professional a ‘fully autonomous health care professional’.  I don’t think paramedics should aim to be ‘fully autonomous medical professionals’ because they are not medical practitioners, they are paramedic practitioners – they should aim to create a unique space for paramedics.

Personally, I think the most important step would be ‘a ‘drug license’ (for lack of a better term) …’ When the right to carry, supply and administer drugs comes with registration then paramedics are trusted health care professionals with an ability to create their own practice environment.

Having a Medicare provider number and being able to bill Medicare would certainly assist paramedics to develop an effective business model but there could be other ways to manage a business eg fee for service as event paramedics or billing health insurance companies for patient transport. One doesn’t have to charge the patient so having relevant Medicare items and an ability to charge Medicare would, I  think be helpful for paramedic business but – and without having an explicit definition of what constitutes a ‘fully autonomous health care professional’ in mind – I don’t think it’s essential to demonstrate professional autonomy.

The right to prescribe medication and refer patients to other health care practitioners would certainly open up business and practice opportunities particularly in extended and community care paramedicine.  Both would demonstrate ‘autonomy’ as the paramedic could form a view of the patient’s condition and provide care without having to refer them to a third party, ie a doctor.

This takes me back to an earlier point which is that paramedicine is not medicine. So one needs to think about what sets paramedicine apart from medicine. Paramedics don’t need to be ‘almost doctors’ (which of course is odd, given the root of the word ‘para-medic’ but whatever the linguistic history behind the word paramedic, it’s a word that’s taken on its own meaning with registration). If paramedics don’t have to be as close to ‘medical practitioners’ as possible then they have to define what are the essential issues of paramedicine. If paramedicine is about out of hospital care, and in particular out of hospital emergency care, then I think the need for prescribing and referral is less important than the right to carry drugs.

At the moment paramedics are registered health professionals but the right to carry an essential tool of their trade, the drugs they use for the benefit of their patients, belongs to their employer.  Until that is resolved they are not truly independent health professionals because they need their employer’s permission to practice their profession. When that’s attended to then they will, in my view, be ‘fully autonomous health care professionals’. The other issues – Medicare, prescribing and referral will help define and dictate what paramedic practice looks like.  They would be useful to give paramedics the widest scope of practice and communities the benefit of practice. But my answer to the question (remembering that I’m not a paramedic) is the essential step is a drug authority that comes with registration, not employment.

Another issue, I’m not sure if it’s required to ‘become’ fully autonomous health care professional or will be evidence that the profession has achieved autonomy, is to be personally accountable for decisions. This is an idea that Megan Jane-Johnston raised in her book ‘Nursing and the Injustices of Law’ (W.B. Saunders/Bailliere Tindall, 1994).  Her argument (if I remember it correctly) was that whilst nurses were not sued because they were employees of institutions and were simply following ‘doctor’s orders’ they were not and could not be considered independent professionals.  It is still the case that we rarely if ever see nurses getting sued because they nearly always practice as employees.  Equally in cases where paramedics are allegedly negligent it is their employer who is the defendant. When paramedics start having their own business practices and their own independent relation with patients then that may change. It may not be an indicium anyone wants, but it is I think an interesting argument. If paramedics could charge Medicare directly, prescribe medication and refer a person to a specialist, then it would certainly be the case that they would be personally liable for their decisions and that would indicate that they are indeed truly autonomous professionals.

Having said that I think (without rationalising the arguments in full) I still think that those issues would expand the ways paramedic could practice and could help widen the definition of what paramedicine is, but they are not essential for saying that paramedics are able to practice as autonomous paramedic practitioners.

But at the end of the day, defining what is or are the essential elements of paramedicine is not for me; it’s for the profession and bodies such as the Australasian College of Paramedicine. Once there is some consensus on what it is to be a paramedic – what is essential to paramedic practice – then it will be possible to define what is required to ensure that paramedics are truly autonomous health care professionals. Registration was a critical first step.

Today’s correspondent

‘own[s] and operate[s] a “private fire service” in Tasmania. Doing hazard reduction work for councils, landholders and forestry. As well as the help with bushfires. I own a fire truck it is fully equipped out. What are my rules relating to having red/blue lights?

My correspondent adds that the vehicle is a ‘registered fire tanker with TAS Roads’ but that the Tasmania Fire Service ‘don’t want me to have lights any more’.

The rules on lights that can be fitted to a vehicle in Tasmania are set out in the Vehicle and Traffic (Vehicle Standards) Regulations 2014 (Tas). Regulation 107 says:

(3) … a light vehicle must not be fitted with –

(a)        a light that flashes; or

(b)       a light or reflector that –

(i)         shows a light other than a red, yellow or white light; or

(ii)        shows a red light to the front; or

(iii)       shows a white light to the rear; or

(iv)       is shaped or located in a way that reduces the effectiveness of a light or reflector that is required to be fitted to the vehicle under the Vehicle Standards .

(4) Despite any requirement of a third edition ADR –

(a)        an exempt vehicle may be fitted with one or more flashing lights of any colour and one or more reflectors of any colour; and

(b)       an emergency vehicle may be fitted with one or more flashing red or white lights…

The term ‘emergency vehicle includes ‘a vehicle built or permanently modified for firefighting purposes’ (r 107(1)).  An ‘exempt vehicle’ includes ‘a vehicle operated, approved or authorised under the Fire Service Act 1979’ (r 5 and Part 15).

What follows is that if the appliance is ‘a vehicle built or permanently modified for firefighting purposes’ it may be fitted with flashing red or white lights (r 107(4)(b)).  That does not require permission or authority from the Tasmania Fire Service.  If the use of the vehicle has been ‘approved or authorised under the Fire Service Act 1979’ then it can fitted with any colour lights (r 107(4)(a)) that are part of that approval (eg red and blue).

As for the use of those lights, the Road Rules 2019 (Tas) are the Australian Road Rules as adopted in that state. Readers of this blog will be familiar that r 306 gives certain exemptions to the drivers of an emergency vehicle whilst rr 78 and 79 require other drivers to keep clear of, and give way to, emergency vehicles. For the purposes of those rules an emergency vehicle is a vehicle driven by an emergency worker in the course of his or her duty (Schedule 5). In Tasmania, relevantly, an emergency worker is a person ‘appointed or employed for the purposes of the Fire Service Act 1979’ (Schedule 6). 

Conclusion

Given we are talking about a private company, and given the objection by TFS, I infer that neither my correspondent nor the company has been ‘appointed’ to any position for the purposes of the Fire Service Act 1979’ it follows that the appliance, being ‘a vehicle built or permanently modified for firefighting purposes’ is an emergency vehicle for the purposes of the Vehicle and Traffic (Vehicle Standards) Regulations 2014 (Tas) but it is not an emergency vehicle for the purposes of the Road Rules 2019 (Tas). If that is correct it can be fitted with flashing red or white lights (not blue) but the use of those lights whilst travelling on a public road has no legal meaning and would just confuse other drivers.

Disclaimer:

Remember this is a blog, not legal advice. This outcome is the result of reading the Road Rules 2019 (Tas) and the Vehicle and Traffic (Vehicle Standards) Regulations 2014 (Tas). No-one should rely on it as proper advice would require consideration of the vehicles registration status, details of any agreement with TFS that allow a person to assist with firefighting, the impact (if any) of Fire Service Act 1979 (Tas) s 37 ‘Salvage corps or fire brigade may not be constituted unless authorized’ etc.  My correspondent (or anyone else) must remember the limitations of a discussion here and at least read the regulations him or herself and satisfy themselves how they apply and if they want definitive advice, obtain that from a Tasmanian practitioner who can consider those issues and confirm the facts; things that I, as a blog writer, cannot do.

Further to my post NSW advance care directives and paramedics (August 30, 2020) I received the following from someone in the Non-Emergency Patient Transport (NEPT) sector.

I’ve been questioning our current protocol … regarding Advanced Care Directives, specifically the NSW Health documents that accompany patients who either have terminal conditions or are in palliative care. This is a fairly common transport, and we require a copy of these documents to accompany the patient in case of deterioration within our care. About 2 years ago, I noticed that while we were being given a copy of the front page, we were rarely, if ever, given a copy of the back. When we were, it was either not filled in, not signed by the AMO or not completed. The bottom of the document clearly states that both front and back pages need to be signed, but I would also argue that the information needs to be complete on the back of the form. Especially the information regarding the validity of the form, and the capacity of the patient to make these end-of-life decisions, and who (if not the patient themselves) has made this decision for them. I have become very insistent that nursing staff contact the treating team to complete these documents as it’s my understanding that;

1.         As the provider taking over the duty of care (and an AHPRA registered health care professional) of this patient, I would be legally responsible if, for whatever reason, this patient passes away in the back of the ambulance, I do not attempt resuscitation and either the family or the doctor had revoked this Advanced Care Plan or decided not to go ahead with it, thus the reason for it not being completed, making them for full resus.

2.         Without a date it expires, or time until which the document remains valid, being declared the appropriate section of the form the document is invalid.

3.         Especially in regards to patients with advanced dementia (being the reason for their “Not For Resuscitation” status) who are incapable of making these decisions for themselves, finding numerous resus plans with “Withholding resuscitation complies with the patients verbally confirmed wishes” is alarming, and such statement could potentially invalidate the document as well.

A link to a sample of the form is here. My employer has told me that as long as the nursing staff hands over that there’s an NFR order, and the front page of the document exists and is signed, that’s good enough. However, I don’t believe this is based on legal advice, and I’m concerned that following this would leave me open to risk. The private industry in NSW Patient Transport is rapidly changing and keeping up legally as a staff member is hard.

Hope this question makes sense as I’ve tried to understand it myself and this is as far as I’ve gotten.

I note that patient transport officers are not registered under the Health Practitioner Regulation National Law so I infer my correspondent is a ‘nurse, registered nurse, nurse practitioner, enrolled nurse’ or a paramedic (or a member of one of the other health professions), but nothing turns on that.

In answering this question I’ve also located a NSW health training slideshow that includes the form (see slide 6). The form does say (emphasis in original) ‘Complete and sign both front and back pages. A copy must accompany the patient on all transfers & be included in discharge summary.’

The starting point is that there is no legislation governing advance directives or resuscitation plans in NSW. The law is the common law that says that a patient can refuse consent to treatment even where that will shorten their life, and that health professionals are not under a duty to provide futile treatment. That means that a patient may be ‘not for resuscitation’ because the patient (or their substitute decision maker) has decided they don’t want that care or where the doctors have determined that such treatment is not in the patient’s best interests or is otherwise futile.  We can see that reasoning in the section ‘Rationale for withholding CPR’ (on page 2).

To turn to my correspondent’s assertions, we are all legally responsible for our decisions. The patient transport officer is ‘legally responsible’ for their decision to commence or withhold CPR in all the circumstances. There is no automatic obligation to resuscitate everyone unless this form is fully completed; the obligation is always to treat the patient in accordance with the patient’s best interests.  What that means is this form is not the ‘be all and end all’ – “if form completed, no CPR; if form not completed full resuscitation”. The form is simply one way to communicate the outcome of the medical decision making. The same information could be communicated orally, or in a letter. The advantage of the form is that it is consistent and unambiguous. The question should become whether the patient transport officer has any serious doubt about the situation. 

It would certainly be a concern if the document does not say how long it is valid for depending on when it was signed. If it was signed minutes before the patient was collected then one can infer it is intended to apply during the transport, but if it was executed a month ago one would have to question whether it was still intended to apply.

I would agree that there should be concern ‘in regards to patients with advanced dementia … who are incapable of making these decisions for themselves’ and the notation that ‘Withholding resuscitation complies with the patients verbally confirmed wishes’ as that implies whoever was completing the form was not giving it the attention it deserved.

Regardless of the form however, if the patient is receiving palliative care then by definition care is being provided to relieve symptoms rather than prolong life. If the patient is being transported to or from a palliative care setting one might be more confident that the ‘No CPR’ order is consistent with the treatment being given – see Withholding treatment from a patient in palliative care (November 19, 2019)). A patent with a ‘terminal condition’ may not be in palliative care, they may be expected to die of their condition but that may still be a long way off.

I think, given the absence of legislation, the issue is not whether every box has been completed but whether there is any reason to doubt the desires or medical opinion being communicated?  Whether one has cause to doubt that it is not intended to subject the patient to CPR depends on all the circumstances including what else is known about the patient’s history, conversations at the time of transfer etc.  If the patient transport officer is satisfied that there is an NFR order in place that is sufficient.  But, having said that, medical and nursing staff should recognise that these forms have been designed for a reason and that proper attention to detail would require both sides to be completed and it is prudent for anyone in the health team to insist, for everyone’s benefit, that the medical officer completing the form complete both sides. I commend my correspondent for becoming ‘very insistent that nursing staff contact the treating team to complete these documents’.

But insisting on ‘full resus’ just because page 2 has not been completed could not be either required or justified. One would have ot consider all the circumstances to make a call on whether there is any doubt about the intention that has been communicated by the details on page 1.

The fact that the document is included in the patient care file is a bit like Ms Shulman carrying her ‘no blood’ card in her wallet. If ‘the family or the doctor had revoked this Advanced Care Plan or decided not to go ahead with it’ or it was still being subject to discussion it should not yet form part of the medical record. The fact that it is included forms part of the evidence to guide decision making. If there is actual reason to doubt its veracity then yes that should be clarified ideally before transport commences.

Today’s correspondent is

… an ambulance paramedic with ACTAS and I was having some robust discussion regarding Emergency Apprehension with my colleagues. What are legalities surrounding an ACTAS crew being sent across the border into NSW eg Queanbeyan to assess a patient with a mental illness/disorder and ‘thoughts of self harm’? I was of the opinion that legislation applied where the patient is currently located and not their current residential address eg ACT resident at Royal Hotel. As registered paramedics from the ACT, I believe we have no legislative powers to apprehend those patients located in NSW who meet criteria for apprehension under ACT legislation. Are we able to apply NSW legislation as RPs? Would appreciate clarification for both myself and my colleagues. Thanks for your informative blog

I have previously answered a similar question with respect to NSW Ambulance officers in the ACT (see Transporting the mentally ill from NSW to the ACT (July 18, 2018))n though that was about transporting a patient not detaining them.

As a general rule, legislature can only enact law that applies in their jurisdiction but there has to be some extraterritorial application. For example, when NSW paramedics drive into the ACT, they are still employed by NSW Health and the various standards under which NSW vehicles are registered continue to apply to those vehicles.  So, whilst it’s true that generally speaking the law of the ACT only applies in the ACT; and the law of NSW only applies in NSW it is not universally true.

The law

The Mental Health Act 2015 (ACT) s 80 says:

A police officer or authorised ambulance paramedic may apprehend a person and take the person to an approved mental health facility if the police officer or paramedic believes on reasonable grounds that—

(a)        the person has a mental disorder or mental illness; and

(b)       the person has attempted or is likely to attempt—

              (i)     suicide; or

              (ii)     to inflict serious harm on the person or another person.

The Mental Health Act 2007 (NSW) s 20(1) says:

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.

Section 22(1) says:

A police officer who, in any place, finds a person who appears to be mentally ill or mentally disturbed may apprehend the person and take the person to a declared mental health facility if the officer believes on reasonable grounds that–

(a)        the person is committing or has recently committed an offence or that the person 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, and

(b)       it would be beneficial to the person’s welfare to be dealt with in accordance with this Act, rather than otherwise in accordance with law.

I won’t revisit why I think NSW paramedics don’t have the power to detain (see Detention or apprehension under mental health legislation (August 27, 2020)). It is my opinion that ACT paramedics do have that authority do detain in s 80; and I will assume, for the sake of the argument, that s 20 does imply an authority to detain.

The question then is ‘can an ACT paramedic drive into NSW as part of the inter-jurisdiction cooperation that exists and detain a person under the Mental Health Act 2007 (NSW) s 20, or the Mental Health Act 2015 (ACT) s 80?’

To act under s 80 of the ACT Act a person must be an ‘authorised paramedic’.  An authorised paramedic is (s 2 and Dictionary):

… a member of the ambulance service—

        (a)            employed as a paramedic; and

        (b)            authorised by the chief officer (ambulance service) to apprehend people with a mental disorder or mental illness.

The Legislation Act 2001 (ACT) tells us that the term ‘”ambulance service” when used in ACT legislation ‘means the ACT Ambulance Service established under the Emergencies Act 2004’.  It follows too that a NSW paramedic is not an ‘authorised paramedic’. 

However, to complicate matters, the Emergencies Act 2004 (ACT) s 64 says:

(1)        This section applies if an interstate or overseas emergency service responds to an emergency or incident in the ACT.

(2)        A member of the interstate or overseas emergency service has the functions of the chief officer of an emergency service in relation to the emergency or incident if—

(a)        the member has charge of other members of the interstate or overseas emergency service; and

(b)       no-one else present is, under this Act, in charge of the operations at the emergency or incident.

If there is an emergency and NSW Ambulance are asked to respond into the ACT because ACTAS cannot get there, then NSW Ambulance will be an ‘interstate emergency service’ (given that ambulance services in the ACT are part of the emergency services).  Without looking at in detail I think it would be uncontroversial that they can act as an ambulance officer but query whether that would extend to acting as an ‘authorised paramedic’ but let us assume that it would. If nothing else if they have all the functions of the chief officer, they could presumably authorise themselves.  I will assume (though it is not clear) that regardless of the definition of ‘authorised paramedic’, by virtue of s 64 a NSW paramedic in the ACT can act under s 80 of the ACT legislation.

To act under s 20 of the NSW Act, a person must be an ‘ambulance officer’. An ambulance officer is defined as ‘a member of staff of the NSW Health Service who is authorised by the Secretary to exercise functions of an ambulance officer under this Act’. An ACTAS paramedic is not employed by NSW Health so they are not, and cannot be, an ‘ambulance officer’ for the purposes of the NSW Act. There is no equivalent to s 64(2) in the Health Services Act 1997 (NSW) ie the legislation governing NSW Ambulance.  It follows that prima facie then an ACT paramedic in NSW cannot exercise the powers under s 20 of the NSW Act; they can only act if they carry s 80 of the ACT legislation with them.

Chapter 8 of the NSW Act, and chapter 15 of the ACT legislation, provide for the application of interstate laws and for making agreements between the jurisdictions. There is an agreement between NSW and the ACT – the Mental Health (Treatment and Care) (Interstate Application of Mental Health Laws) Agreement 2003. Although the agreement pre-dates both the NSW and the ACT legislation, it is still on the ACT legislation website as an ‘in force’ agreement. The NSW Act provides that actions taken under previous legislation is taken to have been done under the current Act so that would have the effect of ensuring that an in force agreement made under an pre-2007 Act remains in force so this 2003 agreement is deemed to be an agreement under the 2007 Act.

If the 2003 agreement is in force it is complicated as it refers to the Mental Health (Treatment and Care) Act 1994 (ACT) and the Mental Health Act 1990 (NSW); now both repealed.

The agreement between NSW and ACT is intended to facilitate the operation of the laws in each state and to facilitate patient transfer. The agreement is made

… for or with respect to:

(i) involuntary admission of interstate persons to facilities in NSW and ACT;

(ii) the transfer of interstate persons between facilities in NSW and ACT;

(iii) the apprehension of interstate persons who abscond from the ACT to NSW and from NSW to the ACT;

(iv) the recognition of community treatment orders made under the NSW Act for the care and treatment of interstate persons; and

(v) the recognition of psychiatric treatment orders made under the ACT Act for the community treatment and care of interstate persons.

Clause 5.2 of the agreement says:

The parties agree:

(a) … a person apprehended by a NSW Police Officer in accordance with section 24 of the NSW Act may be admitted to and detained in an approved [ACT] facility; and

(b) a person apprehended under section 37 of the [Mental Health (Treatment and Care) Act 1994 (ACT)] may be admitted to and detained in a gazetted mental health service in NSW.

Clause 5.4 says

A person who may be taken to a hospital by a NSW Police Officer under sections 22 or 24 of the NSW Act, may be taken to and detained at an approved facility in the ACT by a NSW Police Officer.

Neither the Mental Health (Treatment and Care) Act 1994 (ACT) nor the Mental Health Act 1990 (NSW) provided for apprehension or detention by ambulance officers or paramedics. Section 24 of the old NSW Act equates to the current s 22. Section 37 of the old ACT legislation equates to s 80 though s 80 has added paramedics to police as people authorised to apprehend a mentally ill person.

Assuming that via the transitional provisions these references should be read to ss 20 and 22 of the current NSW legislation and s 80 of the current ACT legislation  then it would say that a NSW ambulance officer or police officer can detain a person in NSW and take them to the ACT; or an ACT police officer or paramedic can detain a person in the ACT and take them to NSW. But the agreement does not say, and did not say, that a police officer (and by extension to modern times an ambulance officer) from NSW could detain a person in the ACT based on the NSW Act; or that an ACT police officer in NSW could rely on their ACT powers to detain a person.

If that’s true then I’m at a position where an ACT ambulance officer in NSW cannot detain a mentally ill or disordered person under s 20 of the NSW Act as he or she is not an ‘ambulance officer’ as defined in the Mental Health Act 2007 (NSW), nor can they rely on s 37 of the ACT Act as they are not in the ACT. A NSW ambulance officer on the other hand could, by virtue of the Emergencies Act 2004 (ACT) s 64 act as if they were an authorised paramedic under the Mental Health Act 2015 (ACT), but could not rely on s 20 of the NSW Act as it prima facie only applies in NSW.  But that adds to a complexity in that it would require NSW paramedics to get some training in ACT law.

An alternative

An alternative is to consider that paramedics carry their powers with them. Section 80 of the ACT legislation refers to an ‘authorised ambulance paramedic’ and that is authorised by the ACT’s Chief Officer – Ambulance.  The NSW Act talks of ‘An ambulance officer who provides ambulance services …’ A NSW paramedic who is dispatched into the ACT is continuing to provide ambulance services.

In either case the paramedics are going to travel interstate but they still carry their own equipment (subject to the discussion that’s been had before about carrying drugs (see Carrying scheduled drugs between NSW and the ACT (December 19, 2018) and Paramedic practice in NSW and Victoria (September 14, 2017) but regardless of any conclusion I draw, paramedics do carry their drug boxes across state borders) and work to the protocols and procedures set by the ambulance service. In inter-state agreements they are asked by the requesting state to come and provide their services – to work – in the hosting state; so if NSW asks ACTAS for assistance to respond to an emergency in Queanbeyan they are asking ACTAS to provide their ambulance services in that jurisdiction, not to come and be part of NSWAS.

If that is right then I think the conclusion (though not without difficulties) is that when travelling interstate ACTAS paramedics carry s 80 with them and vice versa for NSWAS officers. (That analysis could also be applied to confirm that they can carry schedule drugs when responding interstate, but would not help other ambulance providers who were the subject of the discussion in the posts referred to above).

Conclusion

Although the answer is not clear and involves asking the question ‘what do I think a court would do to find a pragmatic solution?’ I think the answer is that when requested by the other state – so if NSW Ambulance asks ACTAS to respond into NSW or vice versa, the paramedics carry their legislation with them and can act in accordance with the powers given in the legislation that empowers their ambulance practice.

Of course the issue would be so much clearer if the legislation gave relevant power to ‘paramedics’ and now that paramedics are nationally registered, a paramedic in NSW is also a paramedic in the ACT!  Or update the agreement to reflect the current law.

For another post on interstate application of mental health laws see Interstate paramedics treating the mentally ill (August 19, 2019).

Today’s correspondent asks if I:

… would be able to write an article on upper leadership in both state and commonwealth governments. In particular I’m wondering if the PM can ‘pull rank’ over the premiers, either in normal day to day or during the pandemic. Thanks. Rhys.

Perhaps not really an ‘emergency law’ question but given the issues arising out of COVID it’s relevant. The short answer is that we live in a system of collaborative federalism where each government is responsible or areas within its constitutional responsibilities. One might imagine the arrangements look like:

But that is not the case. A better representation is:

Local Government is a creature of state legislature so it sits squarely under the states subject to the direction and control of the state government. The states however pre-existed (as colonies) the Commonwealth and exist independently of the Commonwealth. Remove the Australian Constitution and the states are still there (Australian Constitution s 107). But in my diagram the states sit slightly behind and below the Commonwealth.

First there are areas where the Commonwealth and State can both makes laws. If they do, and if a state law is inconsistent with a valid commonwealth law, the commonwealth law prevails. So in an area of Commonwealth constitutional responsibility the PM can ‘pull rank’ over the States and an area of current discussion is the ability of the Commonwealth to ‘veto’ agreements between states and other countries. The Commonwealth has legislative authority in the area of ‘external affairs’ (Australian Constitution s 51(xxix)) and it is the nation state of Australia (not the subnational states) that is the subject of international law. I would suggest that there is undoubted constitutional authority to give the Commonwealth the power to pass legislation to veto state agreements with other countries – to pull rank. (See also Luke Beck, ‘Explainer: can the federal government control the ability of states to sign deals with foreign governments?’ The Conversation (August 27, 2020)).

In other areas the Commonwealth can ‘pull rank’ because the Commonwealth has the money. The Commonwealth raises the taxes that the states and territories spend (hence my diagram as the states ‘behind’ the Commonwealth). Part of the reason for the GST agreements was to remove that threat by making the flow of money not depend on the federal budget but fixed arrangements. But the Commonwealth can say ‘we’ll fund something but only on these terms’ (Australian Constitution s 96).

But in areas that are not within the legislative responsibility of the Commonwealth, then they are matters for the states. Within the concept of collaborative federalism (ie they should try and work together and the view of the PM representing the Federal government is relevant) then no, the PM cannot ‘pull rank’.

That could change if the Commonwealth were to give itself emergency legislation – ie the power to declare a ‘national emergency’. Like the defence power that expands and contracts depending on the circumstances, if there was a defined concept of a national emergency then the Commonwealth reach and power may extend (as we can see the state powers do) during the period of a declared emergency. At the moment there is no overarching Commonwealth emergency management legislation but whether there should be is a question being considered by the Royal Commission into Natural National Disaster Arrangements.

Today’s question returns to the question of advanced care directives and the right of people to refuse treatment. My correspondent asks:

What would the legal position be if an advanced care directive for no CPR is presented but the patient’s enduring guardian requests CPR be performed?

Would this change if the advanced care directive was signed by the patient while they had capacity rather than by the enduring guardian who has now changed their mind?

Also in a similar vein, if there is no advanced care directive or enduring guardian but the patient’s family asks for no CPR and it would seem to be good medical practice to agree with the family would this be appropriate? For context I am practicing in NSW where I believe the guardianship act provides a hierarchy of people who can provide consent. I am a little confused here as consent is not required to perform life saving treatment however I’m unsure what the legal position is where there is not only an absence of consent, but a refusal from the responsible person.

One last question, would a paramedic need to sight the enduring guardian document or could they take the person’s word for it? This might be particularly relevant if the person purporting to be the enduring guardian is only contactable by phone.

‘The fundamental principle, plain and incontestable, is that every person’s body is inviolate’ (Collins v Wilcock [1984] 3 All ER 374, p. 378). In the absence of statutory compulsion, a person has the absolute right to determine what medical treatment they receive or don’t. (In terms of ‘statutory compulsion’ think involuntary mental health treatment, compulsory decontamination in fire and emergency services legislation and as come to the fore in these COVID times, there are provisions in public health law to compel people to undergo treatment if they pose a risk to public health – to the principle is ‘fundamental’ but can be overridden by clear and unambiguous legislation).

At common law a person can communicate their wishes in any way that is likely to be effective, including by carrying a card in their wallet that says ‘no blood transfusions’ and, as I have argued elsewhere, I would suggest an unambiguous tattoo – (Malette v Shulman (1990) 67 DLR (4th) 321 discussed in all the posts found here – https://emergencylaw.wordpress.com/?s=malette)

Legislation that provides for advanced care directives or the like is simply providing a form to allow people to express their wishes in a way that is recognised by health professionals but, except in South Australia where there is no equivalent provision, the legislation does not limit a person’s right to communicate their wishes in any way they want; that is the common law right to refuse treatment is maintained (see Medical Treatment (Health Directions) Act 2006 (ACT) s 6; Advance Personal Planning Act 2013 (NT) s 89; Powers Of Attorney Act 1998 (Qld) s 39; Medical Treatment Planning And Decisions Act 2016 (Vic) s 10; Guardianship and Administration Act 1990 (WA) s 110ZB). In NSW and Tasmania there is no legislation about advance care plans, so it is the common law that applies.

What would the legal position be if an advanced care directive for no CPR is presented but the patient’s enduring guardian requests CPR be performed?

Fundamentally if the document has been executed by the patient, it is their statement of their wishes and it must apply. Without again going through the exercise of citing the legislation in each jurisdiction, enduring guardians are generally not allowed to make decisions that are contrary to the known wishes of the patient.

There is also the issue that a person cannot insist in futile treatment. If in the paramedics professional opinion, the treatment is futile then no-one can insist that it be applied. The focus must always be on the patient’s best interests and subjecting someone to futile treatment is not advancing their interests (Airedale NHS Trust v Bland [1993] AC 789).

Would this change if the advanced care directive was signed by the patient while they had capacity rather than by the enduring guardian who has now changed their mind?

Absolutely. As noted above if it’s signed by the patient then it’s their wishes. If it was executed by an enduring guardian or other appointed medical decision maker at a time when the patient could not make or communicate a decision then the substitute decision maker, like anyone, can change their mind.

If it is their document they can change their mind and the document ceases to have effect.

… if there is no advanced care directive or enduring guardian but the patient’s family asks for no CPR and it would seem to be good medical practice to agree with the family would this be appropriate?

Where a patient is in cardiac arrest they cannot (obviously) consent or refuse consent to treatment. In that case treatment can be given ‘such as a reasonable person would in all the circumstance take, acting in the best interests of the assisted person’ but ‘officious intervention cannot be justified by the principle of necessity. So intervention cannot be justified … when it is contrary to the known wishes of the assisted person, to the extent that he is capable of rationally forming such a wish’ (In Re F [1990] 2 AC 1). In the circumstances described one doesn’t know what the ‘wishes of the assisted person’ so the question comes down to the paramedic’s assessment fo what would be in the patient’s best interests. That is in part a clinical decision – do the circumstances indicate this treatment will benefit the patient – as well as a broader social decision. In the seconds available to make a decision is there an indication that based on the person’s history and values they would consider the treatment a benefit or a harm. Here the family’s views can help inform, but do not direct that decision making.

It is true that in NSW (and in all states) there is a hierarchy of people who can consent to treatment – the notion of the ‘person responsible’.  In NSW that list is (for an adult) is (Guardianship Act 1987 (NSW) s 33A(4)):

(a) the person’s guardian, if any, but only if the order or instrument appointing the guardian provides for the guardian to exercise the function of giving consent to the carrying out of medical or dental treatment on the person,

(b) the spouse of the person, if any, if:

(i) the relationship between the person and the spouse is close and continuing, and

(ii) the spouse is not a person under guardianship,

(c) a person who has the care of the person,

(d) a close friend or relative of the person.

A person responsible may give consent to treatment but it’s not clear that may refuse consent. If they give consent treatment may be given as if the patient has given consent (s 46). If there is no consent so if the person responsible cannot be located or refuses to give consent, treatment cannot be given unless otherwise authorised by the Act (s 35)

In an emergency there is not time to debate these issues, so s 37(1) says

Medical or dental treatment may be carried out on a patient to whom this Part applies without consent given in accordance with this Part if the medical practitioner or dentist carrying out or supervising the treatment considers the treatment is necessary, as a matter of urgency:

(a) to save the patient’s life, or

(b) to prevent serious damage to the patient’s health, or

(c) except in the case of special treatment–to prevent the patient from suffering or continuing to suffer significant pain or distress.

It is not clear how all this applies to paramedic practice or first aid (bystander CPR). For the purpose of this Act medical treatment is defined in s 33 as:

medical treatment (including any medical or surgical procedure, operation or examination and any prophylactic, palliative or rehabilitative care) normally carried out by or under the supervision of a medical practitioner

Those old enough to have watched the US show ‘Emergency’ will remember paramedics Roy DeSoto and Johnny Gage pulling out the old radio to communicate with Rampart Hospital to get orders to “give D5W TKO”; Acknowledged by their call sign “KMG365”. Those paramedics were acting ‘under the supervision of a medical practitioner’ but paramedicine has come a long way since then. Today paramedics provide paramedic care and they are not medical practitioners nor are they acting ‘under the supervision of a medical practitioner.

Second there are detailed procedures to be followed to get consent from a ‘person responsible’. Section 40 says:

(1) Any person may request a person responsible for a patient to whom this Part applies for that person’s consent to the carrying out of medical or dental treatment on the patient.

(2) Such a request shall specify:

(a) the grounds on which it is alleged that the patient is a patient to whom this Part applies,

(b) the particular condition of the patient that requires treatment,

(c) the alternative courses of treatment that are available in relation to that condition,

(d) the general nature and effect of each of those courses of treatment,

(e) the nature and degree of the significant risks (if any) associated with each of those courses of treatment, and

(f) the reasons for which it is proposed that any particular course of treatment should be carried out.

(3) In considering such an application, the person responsible for the patient shall have regard to:

(a) the views (if any) of the patient,

(b) the matters referred to in subsection (2), and

(c) the objects of this Part.

It would not be possible for paramedics and a person responsible to go through that procedure at a out of hospital cardiac arrest.

If you can identify the person responsible and you are wondering whether CPR is called for their views may help decide whether resuscitation is in the patient’s best interests. I have no doubt that is a difficult call to make in the time available, but it is part of assessing the entire scenario – where is the patient, what are their circumstances.  If they are in a palliative care facility or at home with evidence that they are receiving palliative care, the families wishes my help confirm the view that this is not in the patient’s best interests. If on the other hand, the patient needs CPR because they’ve been beaten unconscious by a family member then their view would be irrelevant. Context is everything. 

My view is that a refusal, or a demand, or a request from the person responsible is something to be considered as part of the decision-making process. Commencing CPR in accordance with ambulance protocols given the urgency of the situation will not be unlawful given the procedures that have to be followed to get consent from a ‘person responsible’ (Guardianship Act (NSW) s 40).

Would a paramedic need to sight the enduring guardian document or could they take the person’s word for it?

Again I think context is everything. If there was any doubt in your mind, raised eg by someone saying ‘you’re not their guardian’ then you would want to see it. But on the other hand, if those there say ‘Uncle John was his appointed guardian, we’ll ring him and get to talk to you’ and the person on the phone says ‘yes I’m John, and I was appointed on xyz date …’ and you have no doubt that may be sufficient.

Although it was about the advance care directive, not the appointment of an enduring guardian, I don’t think I can go past my answer to the question Do paramedics need to see the advance health directive in WA? (July 8, 2019).

Conclusion

I don’t think one can go past NSW Ambulance protocol C2 which says:

Resuscitation should be commenced if there is any doubt as the validity or currency of a Treatment Directive; or any ambiguity or uncertainty about the situation or patient’s history. Resuscitation may be withdrawn as further information becomes available.

Whether there is ‘doubt’ ‘ambiguity’ or ‘uncertainty’ depends on all the circumstances. Context is everything.

See also Revisiting conflict between advance directives and those near and dear to the patient (February 29, 2020).

See also

• Who can give consent, who can refuse consent and when is consent not required for emergency medical care?
  A: https://emergencylaw.wordpress.com/?s=consent
  A: https://emergencylaw.wordpress.com/?s=necessity

For an excellent resource on these questions see the website of Advance Care Planning Australia and, in particular, their page on Advance care planning and the law.

Today’s question returns to the COVID 19 response in Victoria and today’s correspondent has

… heard via the media, that police have new powers further the State of Disaster declaration In Victoria to enter private property without a warrant.

I find nowhere in the Act that provides for such and ask for your opinion out of sheer curiosity.

Frankly I find it very hard to believe that is the case.

Looking forward to reading your comment on the matter

I was referreed to an article in ‘The Age’ Sherryn Groch ‘Victoria is in a state of disaster. What does that mean and what are the rules now? (August 5, 2020). That article says:

But a state of disaster goes beyond health; it is usually intended for crises wrought by nature or by malicious attackers. It allows the state’s Emergency Minister (in this case, Lisa Neville) to direct government agencies and allocate resources as well as controlling movement within the disaster area when a threat is deemed to pose “a significant and widespread danger to life or property”. Police can be deemed “authorised officers”, Neville has said, able to enter private property when they believe rules are being breached.

I cannot see that this is correct. The term ‘authorised officer’ does not appear in either of  the Emergency Management Acts of 1986 and 2013 (Vic) nor is there any specific power to enter premises in those Acts. The term ‘authorised officer’ does appear in the Public Health and Wellbeing Act 2008 (Vic) as does the power to enter premises, sometimes without warrant (ss 168-170).

The declaration of the state of disaster issued on 2 August can be found in the Victorian Government Gazette; but I cannot find any directions or orders made pursuant to that declaration. The Victorian COVID page only provides information on ‘Directions issued by Victoria’s Chief Health Officer’ under the state of emergency under the Public Health and Wellbeing Act.  Emergency Management Victoria refers people to the DHHS website.

In short I cannot see what the article is referring to or that ‘the State of Disaster declaration In Victoria [allows police] to enter private property without a warrant’. Those powers do exist, but they are in the Public Health and Wellbeing Act.

Today we revisit the Mental Health Act 2007 (NSW) s 20 – and for earlier discussions see https://emergencylaw.wordpress.com/?s=%22mental+health+act+2007%22. 

This question is timely given a recent Australasian College of Paramedicine webinar.  Given I was a present at that webinar this answer will draw on material prepared for that and borrowed from others so it may wonder beyond that necessary to answer the question.  The question is:

I’ve been told by several hospital staff that a person cannot be sectioned if they are in police custody and may only be assessed, transported, treated etc either under the MHA or the law. When I relay this information to police they do not agree and have tried to pressure me into sectioning people who I don’t think I can legally section. Eg a patient in police custody for breach of an AVO had a razor blade hidden in his waistband, the patient produced this and slit his wrists whilst in the cells of a police station. Patient admitted to suicidal ideation, needed stitches for their wounds and obviously a mental health assessment at hospital which they were agreeable to all forms of transport and treatment to facilitate this. The police sergeant then asks if I’m happy to section on this information, I told him I won’t. A – because he is voluntary and B – because he is in police custody he cannot be sectioned. We had a big argument and he told me in all of his experience he has never heard of this and was quite unprofessional. Anyway, could you please advise on what is right legally in this situation?

The problem I have with the question is ‘what does section mean?’ I asked and my correspondent said:

By “sectioned” I mean to place someone under section 20 or 22 of the mental health act, I suppose we just use this as slang with the police and/or hospital staff. 

As I’ve said before, you cannot ‘place someone under section 20’ because that is just not what the section says.  Section 20 says:

20 DETENTION ON INFORMATION OF AMBULANCE OFFICER

(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.

There is nothing in s 20 to say that it cannot be relied upon when a person is in police custody.  If a person in police custody appears to an ambulance officer ‘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’ then subject to the discussion below the ambulance officer ‘may take the person to a declared mental health facility’.

Therefore what a police sergeant is asking if he or she asks are you ‘happy to section on this information?’ is ‘will you take the person to a declared mental health facility?’ If you don’t think 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’ then the answer would be ‘no’.  If you do think the test is met, the answer would be ‘yes’ provided the patient consents – and we’re told this patient does consent (see Revisiting the role of police and paramedics when dealing with the mentally ill in NSW (September 14, 2019)).

As I’ve said before I just don’t think s 20 says what NSW Ambulance and NSW paramedics think it says. It does not say that a person who is competent but refuses treatment (which is not the case in this story) can be treated against their wishes by NSW paramedics.  In support of that I note the following:

• Section 20 does not say an ambulance officer may ‘detain’ or ‘apprehend’ a person or refer to ‘involuntary admission and detention’. The heading does not say ‘detention by an ambulance officer’. It is detention by others ‘on the information of an ambulance officer’. The power to detain is given to the mental health facility (s 18(1)(b)).  The ambulance officer can take them to the facility and the facility can detain them on the basis of the ambulance officer’s view and before they are assessed by a medical practitioner.
• It says ambulance officers may ‘take’ a person to a facility. I read that as giving permission to travel to a mental health facility rather than say the nearest emergency department. It allows them to bypass other facilities if the criteria are met. Compare s 20 to
  • s 18 – ‘A person may be detained in a declared mental health facility…’
  • s 19 – ‘A person may be taken to and detained …’ and the doctor must be satisfied that ‘that involuntary admission and detention are necessary’
  • s 22 – ‘A police officer … may apprehend the person and take the person …’
• The Mental Health Act assumes that the mentally ill may and where they can, must consent to treatment.  If that right – to make autonomous decisions – is to be overriding it must be clear and unambiguous. Section 20 is neither.
• Section 20 does not compel anyone else to do anything.  A mental health facility may not must detain a person brought by ambulance.  Even if s 20 allows paramedics to take a person against their competent refusal, they are free to leave the facility once they have arrived unless the facility elects to exercise their powers under s 18.

I know NSW Ambulance thinks consent is irrelevant (see for example Protocol A3 and Protocol MH3) but I just don’t think that is what the section says. Protocol MH3 says (emphasis in original) if ‘the PATIENT IS WILLING to be transported to hospital voluntarily there is not need to enact Section 20 …’ That confirms my correspondent’s position where the patient is ‘agreeable to all forms of transport and treatment’ but in any event, it still does not make sense. If the patient is willing to be transported to hospital voluntarily’ then s 20 says that the paramedics may take them there. Paramedics don’t have to do anything to ‘enact’ section 20. Section 20 is engaged when they select a ‘declared mental health facility’ as their destination.  That decision enlivens s 18 such that the facility that receives the patient may choose to detain them based on the information provided by the ambulance officers pending examination.

As a rule of statutory interpretation every word must have meaning. Both police and ambulance officers have a power to ‘take’ a person to a mental health facility (ss 20 and 22) but only police have a power to apprehend (ss 21 and 22). If the word ‘take’ (in s 20) were sufficient to mean ‘take contrary to the patient’s refusal’ then the term ‘apprehend’ in ss 21 and 22 has no role to play.  I am reassured that the use of the word ‘take’ in s 20 does not mean ‘take against the wishes of a competent person’ because of the language used in comparable legislation:

• Mental Health Act 2015 (ACT) s 80: ‘A police officer or authorised ambulance paramedic may apprehend a person …’
• Mental Health and Related Services Act 1998 (NT) s 31: ‘A paramedic may detain a person …
• Mental Health Act 2007 (NSW) s 21: ‘A police officer to whose notice …a request for assistance by an ambulance officer …  is brought must, if practicable– (a) apprehend …’ and s 22: ‘A police officer … may apprehend …’
• Public Health Act 2005 (Qld) s 157B: ‘… ambulance officer or police officer may detain the person …’               
• Mental Health Act 2009 (SA) s 56 ‘An authorised officer [which includes an ambulance officer] … may take the person into his or her care and control …’
• Mental Health Act 2013 (Tas) s 17: An MHO [Mental Health Officer which includes appointed ambulance officers] or police officer may take a person into protective custody …’
• Mental Health Act 2014 (Vic) s 351: A police officer, or a protective services officer on duty at a designated place, may apprehend a person …
• Mental Health Act 2014 (WA) s 156: ‘A police officer may apprehend a person if the officer reasonably suspects that the person …’

We can see what the legislation looks like if you want to deprive a person of their liberty. In NSW ss 21 and 22 do look like that; s 20 does not.

 My view is that in NSW, Victoria and WA if the person does not have the capacity to consent, then a paramedic can provide treatment that is reasonably necessary and in the patient’s, best interests. And that may include sedation and transport to care- and that’s true if they’re mentally ill or have a physical injury eg a head injury.  That’s the common law doctrine of necessity and often replicated in guardianship type legislation.  If the patient can consent and does, then paramedics can provide appropriate care. If the patient can consent but chooses not to then their decision has to be respected even if they are mentally ill (PBU & NJE v Mental Health Tribunal [2018] VSC 564; see Victorian decision on refusing medical treatment – reviewing the principles (November 24, 2018)). 

Where a person is mentally ill and meets other criteria, they can be detained against their will by a paramedic in the ACT, the NT, Queensland, South Australia and Tasmania. In NSW, Victoria and WA the power to apprehend the person, that is a power to deprive the person of their liberty – their freedom to come or go – is a power to be exercised by police.  Though police, having exercised those powers, may ask ambulance for assistance.

In NSW, the value of s 20 is that the mental health facility can say ‘the paramedics think you’re mentally ill and they’ve brought you here so on the basis of their observations and assessment, we’re going to detain you ‘on the information of the ambulance officer’. The patient may come with the ambulance officers voluntarily but can then be detained by the facility. Section 20 is a condition precedent for the health facilities decision to detain, it does not say that the paramedics can treat a competent person against their will even though NSWAS thinks it does and even if that is what the Parliament intended. If that is what they intended, they should and could have said so (as the Parliaments in other states did). In NSW they did provide for ‘apprehension’ by police, but not by ambulance officers.

Let us return then to the given scenario:

… a patient in police custody … had a razor blade hidden in his waistband, the patient produced this and slit his wrists whilst in the cells of a police station. Patient admitted to suicidal ideation, needed stitches for their wounds and obviously a mental health assessment at hospital which they were agreeable to all forms of transport and treatment to facilitate this.

An ambulance is called. The patient has physical wounds that need stitching. Section 20 says that the ambulance officers may take the patient to ‘a declared mental health facility’. Let us assume the local ED is not ‘a declared mental health facility’.

The sergeant asks ‘are you happy to section on this information?’ But the question means ‘Are you happy to transport the patient to a declared mental health facility?’ to which the answer would, presumably, be ‘no, as they need to go to ED to have their wounds attended to’. If the local ED was a ‘a declared mental health facility’ the question is irrelevant as you are going to take them there anyway.

The hidden, but wrong meaning is that if you were to elect to take them ‘under s 20’ then they are not free to leave, but that is not what s 20 says. At best it says the declared mental health facility may detain them if the circumstances of the Act are met, but presumably they would treat the person as a voluntary patient given that he is consenting to treatment. If the person is not free to leave it’s because he is in police custody for whatever offences he is alleged to have committed and remains in custody until a bail decision is made.

Conclusion

• A person who is mentally ill and consents to treatment should be not be treated as an involuntary patient by anyone – a mental health facility, a paramedic or a police officer.
• A person who appears to police to be mentally ill and who has committed a crime or attempted suicide may be apprehended by police and taken to a mental health facility.
• A person who appears to an ambulance officer to be mentally ill or mentally disordered may be taken to a mental health facility by a paramedic but may not be ‘apprehended’ or ‘detained’ by that paramedic. Those words do not appear in s 20; they do appear in ss 21 and 22. If the person has the capacity to give or refuse consent and they don’t want to come; they don’t have to. If they do not have the capacity to give or refuse consent, then treatment that is reasonably necessary and in their best interest, including transport to a declared mental health facility (s 20) and restraint or sedation may be given (Mental Health Act 2007 (NSW) s 81; In Re F [1990] 2 AC 1 and see The doctrine of necessity – Explained (January 31, 2017)). Mental illness does not however necessarily mean a person lacks capacity (PBU & NJE v Mental Health Tribunal [2018] VSC 564)),
• If an ambulance officer, relying on s 20 takes a person to a hospital or a mental health facility, that does not impose any restriction on the patient’s liberty once they get to that facility. It empowers the mental health facility to make a decision to detain the person (s 18) but does not compel them to do so.

Today’s correspondent has ‘… been a member of the RFS for approximately 15 years and currently hold[s] the rank of Deputy Captain’. They say:

Over the fire season, I had two medical episodes. After the second episode, I made the decision to take an extended break from operational activities. 

 I have subsequently been reviewed by my doctor who has indicated that they see no issues with me returning to active duty (with no restrictions). 

 The Captain of my brigade is regularly challenging this and attempting to insist that I withdraw completely from operation duties or limit to ‘light duties’ and has stated on more than one occasion that he will not allow me on the truck.

The question is: what is the authority a brigade captain within the New South Wales Rural Fire Service and, specifically, do they have the authority to prohibit a member from participating in operational activities?

The Rural Fires Act 1997 (NSW) has nothing to say about the role of the Captain. It does talk about ‘officers’ of a brigade (s 21) but that’s about duties and roles at a fire rather than administration of the brigade. There are no relevant provisions in the Rural Fires Regulation 2013 (NSW).

The standard constitution of a brigade (Rural Fires Regulation r 4 and Service Standard 2.1.2 Brigade Constitution) provides for the election of the brigade captain, but does not specify the captain’s duties. Service standards 2.1.4 Appointment of Field and Group Officers and 1.2.1 NSW RFS Ranking and Rank Insignia also have provisions about the appointment of captains and where they fit in the rank structure but again do not set out their duties.  Service Standard 1.3.2 Powers of Officers is all about the power of officers to exercise emergency powers during a fire, not about the administration of a brigade or the sort of issues raised by my correspondent.  There is a Brigade Management Handbook that I cannot access as it is behind the RFS Intranet but a draft consultation version of 2016 is available.  It too does not add anything useful in this context.

The role of captain is a field role. The brigade is managed by the executive committee (Constitution [8.3]). Whether a person is a member is ultimately a matter for the District Office (Service Standard 2.1.6 Joining the NSW RFS as a Volunteer Member (Including Transfer Applications). It follows that the Brigade Captain has to deal with the members of the brigade that there are, he or she does not get to pick and choose the membership.  Any member must be entitled to all the benefits and privileges of membership and to play any role for which they are capable and competent.

That does of course beg the question of who is capable, but it cannot be a matter for a brigade captain to decide that a person is not fit for duty without evidence of that; and a medical certificate to the effect that the person is fit for duty has to override any concern to the contrary. 

A person unlawfully discriminates on the grounds of disability if a person treats another person less favourably than others on the basis that the person discriminated against ‘is thought to have’ a disability, or ’had in the past, or is thought to have had in the past’ a disability (Anti-Discrimination Act 1977 (NSW) ss 49A and 49B).   Therefore, a brigade captain who refused to let a member take part in brigade work on the basis that the person’s past medical history means they now have, ro did have a disability could be guilty of unlawful discrimination particularly where there is evidence that there is no disability.

But, on the other hand, everyone has work health and safety obligations and a brigade captain, particularly when it comes to operational firefighting, along with everyone has to have the ability to say to someone that ‘you are not fit or safe to be in the team’. But there has to be some reason behind that, and it would be hard to find a reason based on a ‘past medical history’ when the person involved has received a clearance from their treating doctor.

In short, the powers of a brigade captain are not clearly spelt out in the RFS public documents. There may be something in the management handbook or a particular brigade’s Rules and/or Standing Orders. In the absence of that material there is nothing I can see in the Act, the Regulation or the Service Standard that would allow a captain to ‘insist that [a member] withdraw completely from operation duties or limit to ‘light duties’’ or refuse to allow a member otherwise in good standing ‘on the truck’. 

If the captain has genuine concerns for the member’s or other members’ safety on the basis of evidence-based observations regarding fitness for duty, there are ways to deal with that other than direction. It would have to require consultation and discussion and, if necessary the involvement of a higher office. To refuse to let a member participate because of a belief that a past ‘medical episode’ means they are unfit may well constitute unlawful discrimination.

I’m not sure I really understand today’s question which is:

Our company employs varying levels of medical professional personnel. Patient Transport officer, EMT, Registered Paramedic, RN and ICP.

There seems to be a dispute between hospital staff and the registered paramedics [RP] on shift and whether or not the RP has a right to take a baseline set of vitals prior to accepting patient care from definitive care, then transporting them to various locations – I.e home, nursing home, hospital, specialist clinics.

At present, the process that most of the RPs are taking is taking a baseline vitals, and if anything is out of the “normal parameters” they question for altered calling criteria, resuscitation plans and history.

This has become an extensive discussion within our workplace, in regard to registration, as I’m sure you could imagine, and we have now received a fairly unofficial email regarding whether or not we have the authority to take vitals.

So for the time being, the question I have for you is this.

If, as a registered paramedic, we accept care of and take a patient from the hospital, a place of definitive care, without getting a baseline set of observations, and the patient was to deteriorate due to an underlying condition that could have been detected by taking those vitals, are we then held as accountable for that patients deterioration, and would we be risking registration as a result?

Does this change if we are to use the last set of vitals that the ward nursing staff give us during handover, whereby these vitals could have been taken 5minutes ago, or 8 hours ago?

As I say I don’t really understand the basis of the question as I don’t understand how anyone could think they could ‘direct’ a paramedic not to take a set of obs if the paramedic thought they would provide useful information that would enhance patient care, or why one needs to have a ‘right’ to do so.  In short the question makes no sense and that’s no reflection on the person asking the question but on whoever it was who suggested anything other than ‘of course you can take a set of obs if you think you need to, and if the patient consents’.

The obligation of a paramedic is to provide good paramedic care. The Paramedicine Board’s Code of Conduct-Interim says (at [2.1]):

Care of the patient or client is the primary concern for health professionals in clinical practice. Providing good care includes:

(a) assessing the patient or client, taking into account their history, views and an appropriate physical examination where relevant; the history includes relevant psychological, social and cultural aspects

(b) formulating and implementing a suitable management plan (including providing treatment and advice and, where relevant, arranging investigations and liaising with other treating practitioners)

(c) facilitating coordination and continuity of care

(d) recognising the limits to a practitioner’s own skills and competence and referring a patient or client to another practitioner when this is in the best interests of the patients or clients, and

(e) recognising and respecting the rights of patients or clients to make their own decisions.

I would think taking a set of obs is necessary for (a), (b), (c) and (d) above, based on the paramedic’s assessment of the task at hand, the relevant history etc. Taking a set of baseline obs and then asking about them if they are out of the ordinary is reflective of patient centred care and working together as part of the health team (Code of Conduct [4.2]).  It helps understand the treatment plan during transport and to ensure that the paramedics can make decisions about whether a patient’s condition is deteriorating or not.

It’s not for me to say, as I am not a paramedic, whether a set of obs is required in every case and even if I had a view, I don’t know the specific circumstances of where my correspondent works or the type of patients they are transporting. What that means is the question of whether a set of baseline obs is necessary or simply ‘would be helpful’ is a clinical question for the treating paramedics. But if the treating paramedic forms the view that a set of obs will enhance the care that they can provide then they have both a right and a professional obligation to take them and anyone telling them they cannot is simply speaking non-sense.  On the other hand, if they think the obs will be of no value, then they should not be taken just to be seen to take them ie for the paramedic’s benefit. Putting the patient to the albeit minor inconvenience of another blood pressure cuff etc can only be justified if it is necessary in the patient’s best interests. The inconvenience may be minor, so the benefit need not be much to justify it, but there has to be, in the paramedic’s mind, some benefit to the patient from taking the obs.

Let me turn to the questions:

If, as a registered paramedic, we accept care of and take a patient from the hospital, a place of definitive care, without getting a baseline set of observations, and the patient was to deteriorate due to an underlying condition that could have been detected by taking those vitals, are we then held as accountable for that patients deterioration, and would we be risking registration as a result?

A registered paramedic will be accountable for the decisions they make in providing paramedic care. If the paramedic thinks a set of baseline observations will enhance patient care, then he or she will be accountable for their decision not to take them. Imagine you are sitting as a panel of the Paramedicine Board assessing a paramedic’s conduct where indeed the patient’s condition did deteriorate and there was a delay in noticing that because of no baseline obs. The Panel might ask the question ‘why did you not take a set of obs?’ How would you judge the answer: ‘Because the hospital staff said I was not allowed to’.  Would that fit your definition of good paramedical practice?

If you think taking a set of clinical obs, given the circumstances is warranted and you don’t take them and then fail to detect that the patient’s condition is deteriorating I think you would be accountable, negligent and unprofessional.

Does this change if we are to use the last set of vitals that the ward nursing staff give us during handover, whereby these vitals could have been taken 5minutes ago, or 8 hours ago?

It depends on all the circumstances. You work with nurses and as the Code of Conduct says ‘Good care is enhanced when there is mutual respect and clear communication between all health professionals involved in the care of the patient or client.’  You don’t have to second guess the staff, if as part of their handover they tell you that obs have just been taken and give you those details as part of the handover then that may well be sufficient. I doubt if it is sufficient if they were taken 8 hours ago.   

You can understand the nursing staff may be annoyed if as part of getting the patient ready for transport they have taken obs in the hope of making your job easier and you then insist on taking your own set; it may also annoy the patient. But at the end of the day, just as nurses at an ED will probably take a set of obs when a patient is delivered by an emergency ambulance so too you may choose to take a set of obs. The issue is not about ‘not offending the nursing staff’ but providing patient centred care.  If you think you need your own set of obs, taken with your equipment to give you a baseline and to give a second opinion, then do take them (providing the patient consents).  If in all the circumstances you think the obs taken 5 minutes ago and which are within normal parameters or if not there is an adequate treatment plan, then fine. It’s a matter of clinical judgement for each paramedic – that is what it means to be a professional.  No-one can tell a registered paramedic that they are not ‘allowed’ or don’t have the ‘right’ to take a set of obs if the paramedic thinks that will help them to provide good patient care.  

Conclusion

A registered paramedic has an obligation to provide good paramedic care and it is their obligation to determine what that means in the particular circumstances. If it means taking a set of baseline obs, take them.

Mr Campbell, a volunteer bush firefighter,  appeared before the District Court of Western Australia and entered a plea of guilty to the charge of ‘wilfully lighting a fire under such circumstances as to be likely to injure a person or damage property’ (contrary to s 32 of the Bush Fires Act 1954 (WA)). He was sentenced to 12 months full-time imprisonment.  In Campbell v The State of Western Australia [2020] WASCA 131 the Court of Appeal upheld his appeal and substituted a sentence of 9 months imprisonment suspended for 12 months provided he complied with the terms of a release program. In other words, if he complies with the terms of is program for 12 months he does not go to gaol, but if he does not he holds a ‘go directly to gaol’ card and will serve 9 months in custody.

The circumstances of the offence were that the appellant lit a fire on a roadside verge on 11 January 2019. At the time the fire danger rating was low to moderate, the maximum temperature was 260 C and the winds were under 10 km/h for most of the day.  The appellant was driving a vehicle provided by his employer ‘which was equipped with a water tank, pump and hose, to help put out fires’ ([3]). After lighting the fire, the appellant began to take steps to extinguish it.  The local fire brigade attended and the appellant joined with them in extinguishing the fire.

In upholding the appeal and finding that the 12 months full time custody was ‘manifestly excessive’ their honours (Buss P, Mazza and Mitchell JJA) noted that the appellant was 19 years old at the time of the offence with no prior criminal history. At [18] (emphasis in original) they said:

The sentencing judge said that, while the appellant was the only person who truly knew why he lit the fire, the psychologist’s view that he was motivated by a desire for positive attention in his role as a volunteer firefighter was likely to be correct. Later, the sentencing judge observed:

Your learning disability and your ADD is obviously not your fault and it sets you up to be a bit of an outsider and a loner, which then leads to the depression.  And I accept this is all part of a complex picture as to why you would light a fire, deliberately, because it seems to me you were living a fairly lonely sort of life and feeling down and this fire-fighting brought you into contact with people, as part of a group.

And sometimes, beers were drunk afterwards. You told the police that. And it made you a part of something.  It gave you something to belong to.  So I do consider that your mild impairment and your moderate depression are linked to why you lit the fire.

The sentencing judge also said (at [23]-[24]):

I take into account that the day on which you lit the fire was a mild one for January.  There was no strong wind. The fire was very small, before you began to put it out.  And you did stay put to put it out.  That distinguishes this from a fire lit on a day with a high fire risk conditions and one that is left to burn unattended.

However, as I commented earlier, you know very well the risks in lighting a fire.  The wind can change.  The environment you were in was rural, with paddocks.  There were trees where you lit the fire.  Gum trees, that is.  It was January and the west is dry and a grass fire can move very, very quickly and meet more fuel and gain momentum.

So while I will take into account that the fire itself was small, and that the risk was less than it would have been had the fire conditions that day obviously been high, I do not consider the risk to have been slight, particularly not when you yourself said one of the fires that started only hours earlier was big and another was medium.

As against the matters in mitigation, when you deliberately light a fire in Australia in January when the land is dry and ready to burn, even though you are there to put it out, you deliberately take the risk that it will get away from you. There is little point deliberately lighting a fire if you don’t [sic] put it out when it’s only a few inches big.  There was no guarantee you would be able to put it out…

Notwithstanding your mild cognitive impairment, no one is suggesting that you don’t know right from wrong and you certainly know all about the risks of fire.  To take the risk, any risk whatsoever, with something so lethal as fire, shows so little regard for your fellow man and the animals in the area, such total self-absorption, that you must be considered at risk to the community…

And you must know that people sometimes suspect volunteer firefighters as people who start fires.  And people like you are the reason why.  It is so very unfair on the vast majority of volunteer firefighters who are simply brave people who are willing to risk their lives to keep everyone else safe from fire that people like you give rise to these lurking suspicions in the community.

The Court of Appeal noted that the judge correctly said (at [26]) ‘I must not impose an immediate term unless it would be inappropriate to suspend it.’ Her Honour found that ‘it would be inappropriate to suspend it’ and so imposed a sentence of immediate full time imprisonment.  The question before the Court of Appeal ([28]) was ‘whether it was reasonably open to the sentencing judge to conclude that suspended or conditionally suspended imprisonment were inappropriate sentencing options’?  Their honours said (at [30]-[33]):

It is also well established that, under s 39 and related provisions of the Sentencing Act, a sentencing judge must be positively satisfied that it is not appropriate to suspend or conditionally suspend a term of imprisonment before the term can be ordered to be served immediately.  The discretion to suspend or conditionally suspend a term of imprisonment is not confined by considerations relating to rehabilitation.  In a particular case, the objective features of an offence may outweigh the personal considerations of rehabilitation.

In Smith v The State of Western Australia, this court observed:

As has been noted on a number of occasions, the courts do not ordinarily impose a term of immediate imprisonment on youthful offenders of prior good character without considerable pause and reflection.  There are circumstances where the seriousness of the nature and circumstances of offending may require a sentence of immediate imprisonment.  While mitigating factors must be given appropriate weight, they must not be allowed to lead to the imposition of a penalty which is disproportionate to the gravity of the offence.  However, youth combined with prior good character may lead a sentencing court to refrain from imposing what would otherwise be an appropriate custodial sentence. (citations omitted)

The appellant had just turned 19 years old at the time of the offence and was of prior good character.

The maximum penalty for the offence is 20 years’ imprisonment.  However, as reflected in the sentence of 12 months’ imprisonment imposed by the sentencing judge, the criminality of the offending was very much towards the lower end of the scale of seriousness of offending of this kind.

The court noted (at [39])

… the seriousness of the offending, in terms of the risk of harm to persons and property, was reduced by the fact that:

(1)          The road verge area in which the fire was started was not heavily or densely vegetated, and was readily accessible to firefighters.

(2)          The appellant did not leave the area after starting the fire.

(3)          The appellant had firefighting equipment with him, which he could and did use to help extinguish the fire.

(4)           The fire was not started in proximity to buildings used for commercial or residential purposes.

At [43]-[44] they concluded:

While the appellant’s offending was undoubtedly serious, when account is taken of the nature and degree of risk of harm to persons or property, the offending was not so serious as to demand the immediate imprisonment of a very young man of prior good character who suffered from the cognitive impairment described above.  In the circumstances, it was not reasonably open to her Honour to be positively satisfied that conditionally suspended imprisonment was an inappropriate sentencing option.  The decision to impose a term of immediate imprisonment was unreasonable and plainly unjust.

In our view, the appropriate sentencing disposition is a term of imprisonment, conditionally suspended with a programme requirement to enable the appellant’s treatment needs to be addressed.  The term of imprisonment to be conditionally suspended should be reduced from 12 months to 9 months to take account of the approximately 3 months the appellant has spent in custody since being sentenced.  A suspension period of 12 months is appropriate.

The High Court of New Zealand is the equivalent of a Australian state supreme court sitting about the District Court but below the Court of Appeal and the Supreme Court. The Supreme Court of New Zealand is the equivalent of the Australian High Court.

In Borrowdale v Director-General of Health [2020] NZHC 2090 the Court ruled on Mr Borrowdale’s application for declarations that the New Zealand lockdown was unlawful. He raised three separate claims. The first related to the period commencing 26 March 2020 and running for 9 days. During that time the Prime Minister and others made statements in the media telling New Zealanders that they were required to isolate on pain of police enforcement.

The second challenge related to orders made by Director General of Health under the Health Act 1956 (NZ). Mr Borrowdale alleged that the DG had exceeded the authority provided by the Act particularly if the Act was interpreted in a way to make it consistent with the New Zealand Bill of Rights Act 1990 (NZ).

The third claim was related to the second and argued that the Order that prescribed that all business other than essential business had to close unlawfully left the decision of what was or was not an essential business to ‘unnamed members of the public service, and these decisions were regularly altered’.  Mr Borrowdale argued that this was an impermissible delegation of authority.

The first claim

The court upheld Mr Borrowdale’s claim.  An example of the sort of announcement that was made is given at [156] where the Prime Minister said (on 25 March):

If someone is outside and has no explanation, [Police] will remind them of their obligations, and if they believe they need to, they can take other enforcement actions.

The problem was that at this initial time the Director General of Health had issued an order requiring the closure of businesses and forbidding ‘people to congregate in outdoor places of amusement or recreation of any kind’ but an obligation to remain at home was not part of those orders. Although the Director General of Health could have issued orders imposing those restrictions, he had not yet done so and did not do so until 3 April 2020 (Order 2).  At [225] their Honours said:

… prior to Order 2 there was in fact no legal obligation for compliance with the Restrictive Measures. And that is not what was conveyed by the Statements that articulated them. It follows that any limits on rights that were implicit in the Restrictive Measures were not prescribed by law.

The government argued that the announcements from the Prime Minister and the police were requests rather than directions that people voluntarily complied with. The Court did agree (at [184]) that:

… the Statements contain much “soft messaging” focusing on the “Unite” campaign and the concept of a “Team of 5 million”. They repeatedly emphasise the importance of collective action and commitment. On numerous occasions New Zealanders are “asked” to stay home, just as they are asked to be kind and to wash their hands. Equally, however, the Statements are replete with commands: the frequent use of the word “must”, backed up by reference to the possibility of enforcement action for those who did not follow the “rules”.

The court concluded (at [185]) that ‘Standing together with that imperative language are other contextual matters that support our view that the Statements conveyed commands, not guidance.’

The court found that the statements by the Prime Minister and the Police Commissioner directed the citizens of New Zealand to stay at home when there was no legal obligation upon them to comply.

The second claim

The Director-General of Health made three orders under the Health Act 1956 (NZ). These were made on 25 March (Order 1), 3 April (Order 2) and 27 April (Order 3). Order 1 (at [75]):

(a)        required the closure of all premises within all districts of New Zealand, except those listed in the Appendix to the Order, until further notice; and

(b)       forbade people to congregate in outdoor places of amusement or recreation of any kind or description (whether public or private) in all districts of New Zealand, until further notice.

Order 2

… required all persons within all districts of New Zealand to be isolated or quarantined:

(a) by remaining at their current place of residence, except as permitted for essential personal movement; and

(b) by maintaining physical distancing, except—

(i) from fellow residents; or

(ii) to the extent necessary to access or provide an essential business; and

(c) for those with mobile residences, by keeping their residence in the same general location, except to the extent they would be permitted (if it were not mobile) to leave the residence as essential personal movement.

The court said (at [80]-[83]):

… Order 3 revoked the two previous Orders and relevantly required, in cl 6, all persons in all regions to be isolated or quarantined by remaining at their current place of residence, except for essential personal movement and maintaining physical distancing, and with exceptions of essentially the same kind as under Order 2. But cl 7 stipulated a number of further and more specifically defined instances of essential (and therefore permitted) personal movement.

Clause 9 required the closure of “restricted premises”, with exceptions where necessary work (such as maintaining the condition of the premises, plant or goods) was being undertaken.

Clause 11 prohibited congregating in outdoor places of amusement or recreation, but not venues where infection control measures were operating.

Order 3 did not contain a sunset clause, which would make its duration finite. But it was revoked in less than three weeks by the COVID-19 Public Health Response (Alert Level 2) Order 2020 on 14 May.

Mr Borrowdale claimed that the Director General did not have the power to make those orders. That power, he argued, was only vested in appointed Medical Officers of Health and further could only be exercised within each health district but not nationally. Finally, he claims that the actions were inconsistent with the New Zealand Bill of Rights Act 1990 (NZ) (‘the NZBORA’).  At [95] the Court said:

As others have notably said, the NZBORA is a “Bill of reasonable protection for rights”. The rights presently in issue are not absolute and “must accommodate the rights of others and the legitimate interests of society as a whole”, including the wider interest in protecting public health. This is confirmed by the express framing of the equivalent provisions of the ICCPR [the International Convention on Civil and Political Rights], discussed above. So the critical question must be what limitations on those rights can be justified in light of the public health interests in play – that is what s 5 requires to be asked and demands to be answered. Section 5 thus remains central to our inquiry, and s 6 must be read subject to it…

And at [97]-[98]; [100]-[102]:

… the relevant NZBORA question here is whether the limitations of rights resulting from the actual exercise of the [Health Act s 70] powers were necessary, reasonable, and proportionate. And that assessment depends on the particular (public health emergency) circumstances to which the exercise of power responds…

That assessment requires us to construe those provisions based on their text, in light of their purpose and statutory context, and on the basis that they are to be applied to circumstances as they arise. It does not require a prior reading down of those provisions in a way that is at odds with their text and purpose…

To start with the obvious, the powers conferred by s 70 are, indeed, “special” powers – powers for use only in a public health emergency. They largely precede, but nonetheless reflect and give effect to, the New Zealand Government’s international obligations to protect the health of its people and to take measures to prevent the spread of infectious disease both within and beyond our national borders. As is expressly recognised by the relevant international instruments, individual rights may have to yield to the greater good in circumstances where s 70 is in play. And as we have said, the s 70 powers themselves also contemplate that yielding.

Importantly, though, there are inbuilt limits to the exercise of the s 70 powers. Their exercise is permitted only for the purpose of preventing the outbreak or spread of infectious disease – a situation that is assessed by a public health expert, not by Cabinet or the Prime Minister. And their exercise is permitted only after the activation of one of the three “triggers”: Ministerial authorisation, a state of emergency, or an epidemic notice.

As well, the powers have temporal limits, albeit partly unspecified. For example, where the relevant trigger is an epidemic notice, the powers are only exercisable while the notice is in force. But as a matter of wider principle, the s 70 powers are intended to facilitate an immediate and urgent response to a public health crisis. They cannot sensibly be regarded as providing the framework for a longer term response. When a public health crisis is ongoing, the democratic nature of our constitution means that there comes a point when Parliament ought to pass bespoke legislation to ensure that critical policy decisions are made by ordinary Cabinet decision-making. That is, in fact, exactly what happened here, when Parliament enacted the COVID-19 Public Health Response Act 2020 on 13 May.

The court rejected all of the arguments against the orders. They held that the Director General of Health had the powers and functions of a Medical Officer of Health and could issue orders under the Health Act with national application, including powers to quarantine the entire the national population. The orders did impinge on the rights guaranteed to New Zealanders under the NZBORA but that the restriction was reasonable and proportionate to the risk posed by the pandemic.

The court concluded (at [139]):

In our view Orders 1, 2, and 3 were each authorised by either s 70(1)(f), (m) [of the Health Act 1956], or both when those provisions are interpreted in light of their purpose and context.

The second cause of action fails, accordingly.

The third claim

The third claim related to the closure of business in order 1.  That order (at [242[):

required to be closed, until further notice, “all premises within all districts of New Zealand except those listed in the Appendix”. The Appendix then listed a number of specific exemptions, including:

(e)        any premises necessary for the performance or delivery of essential businesses as defined further below;

…

For the purposes of this order:

• “essential businesses” means businesses that are essential to the provision of the necessities of life and those businesses that support them, as described on the Essential Services list on the covid19.govt.nz internet site maintained by the New Zealand government.

The power to determine which business must close was a power vested in the DG but according to Mr Borrowdale leaving it to public servants to create the online list was an unlawful delegation. The Crown case was that the DG exercised his powers by declaring all business other than ‘essential businesses’ were to close, and the material provided by the relevant department was advisory to help business owners decide whether they were ‘essential’ or not.

The court said (at [267]-[272]; [278]):

The issue here essentially arises because of the words after the comma: “as described on the Essential Services list on the covid19.govt.nz internet site maintained by the New Zealand government”. It is only those words that, at least arguably, suggest that it was left to others to determine the parameters of the definition.

But we do not think that those words should be regarded as forming part of the core definition. Rather, we agree with the Crown that the reference to the COVID-19 website was advisory, for the following reasons.

First, in making Order 1, the Director-General was exercising a public health function in emergency circumstances. He was acting as a Medical Officer of Health and determining what businesses could remain open following the issue of the Epidemic Notice. As in Cropp, the Order falls to be interpreted in those circumstances and in light of the Director-General’s functions and s 70’s purpose.

It was entirely appropriate for the Director-General to determine that, given the health threat posed by COVID-19, it was necessary to close all businesses, other than those required to meet the countervailing public health demands (ensuring that New Zealanders had continued access to the necessities of life). But it would have been entirely inappropriate for him to also engage with what we will call the “operational” side of that determination.

As the Crown submits, the assessment of precisely which businesses in New Zealand are “essential” is not a public health issue. Nor is the Director-General, or the Ministry of Health officials advising him, in any position to undertake that assessment.113 It was necessary, and lawful, to leave that kind of operational detail to the lead agencies operating in the relevant sectors. For example, the Ministry of Primary Industries was responsible for providing guidance to businesses supporting New Zealand’s food supply chain. There is simply no way that the Director-General could be expected to know which particular businesses in those complex and multi-faceted supply chains were essential, or, indeed, even what types of businesses =were involved.

Secondly, there is the fact noted at [259] that the core part of the definition was formally amended by Dr Bloomfield (on the advice of Mr Stocks). That signifies a delineation of functions that was understood and acted upon, which is inconsistent with Mr Borrowdale’s “delegation theory”. Setting the core parameters around what businesses were essential remained a matter for the Director-General. Operational matters, or giving effect to the definition, lay with officials…

Finally, the essential services list on the website was not comprehensive. A business not listed on the website could still meet the definition of an essential business if it met the definition in Order 1. If MBIE [Ministry of Business, Innovation, and Employment] or others suggested that it was not essential, judicial review would have been available. The issue was always whether it met the Order 1 definition: being a business essential for the provision of the necessities of life (or a business that supports them).

The court concluded (at [279]):

The definition of “essential businesses” was set by Order 1 and was at all times clear and fixed. It did not alter with the various changes and extensions to the list of essential services on the website from time to time. There was no delegation here and no breach of the rule of law. The third cause of action is dismissed.

Outcome

The outcome was that the directions issued by the government via the Prime Minister and Police Commissioner for the first 9 days, directing New Zealanders to remain at home were, in effect directions (not merely an advice or request) that infringed on rights protected by the NZBORA and were not supported by law. The situation was rectified by the making of Order 2 and thereafter the orders of the New Zealand government were both within power and where they reduced or restricted rights and freedoms those restrictions were reasonable and proportionate and permitted by the NZBORA.

The question then became what was the remedy? The 9 days had long passed and the legal situation was corrected by making order 2. On the question of whether they should make a declaration their honours said ([290]-[291]):

We find this question to be finely balanced. Although we have concluded that there was for nine days an unlawful limitation of certain rights and freedoms, that must be seen in the context of the rapidly developing public health emergency the nation was facing. We agree with Mr Borrowdale that – although not prescribed by law – the limits were nevertheless reasonable, necessary and proportionate. Moreover, they were limits that could have been imposed lawfully by the Director-General at the time, simply by issuing an order. And the unlawfulness has long since been remedied. We think these matters militate against making a declaration here.

But there are, of course, weighty rule of law considerations that point the other way. The rule of law requires that the law is accessible and, so far as possible, intelligible, clear and predictable. As Lord Bingham has explained extrajudicially, if individuals are “liable to be prosecuted, fined and perhaps imprisoned for doing or failing to do something, we ought to be able, without undue difficulty, to find out what it is we must or must not do on pain of criminal penalty”. The required clarity was lacking here. Although the state of crisis during those first nine days goes some way to explaining what happened, it is equally so that in times of emergency the courts’ constitutional role in keeping a weather eye on the rule of law assumes particular importance. For these reasons we conclude that it would be appropriate to make a declaration.

The court made the following declaration:

By various public and widely publicised announcements made between 26 March and 3 April 2020 in response to the COVID-19 public health crisis, members of the executive branch of the New Zealand Government stated or implied that, for that nine-day period, subject to limited exceptions, all New Zealanders were required by law to stay at home and in their “bubbles” when there was no such requirement. Those announcements had the effect of limiting certain rights and freedoms affirmed by the New Zealand Bill of Rights Act 1990 including, in particular, the rights to freedom of movement, peaceful assembly and association. While there is no question that the requirement was a necessary, reasonable and proportionate response to the COVID-19 crisis at that time, the requirement was not prescribed by law and was therefore contrary to the New Zealand Bill of Rights Act.

The second and third causes of action were dismissed.

It is not clear what effect if any this declaration will have other than to advise New Zealander’s of the legal position. It may be that if anyone was detained or issued with an infringement then they would rely on this finding as a defence to any prosecution or to support a claim for false imprisonment but whether anyone was detained or fined I don’t know, and the court did not address.

Discussion

 New Zealand is not Australia so the law discussed here does not apply in Australia, but the Health Act 1956 (NZ) is not so different from the various public health Acts in the Australian states and territories, and the NZBORA is not so different from the Human Rights Acts in the ACT, Queensland and Victoria.

Those concerned about the response to the pandemic may be reassured that the Court affirmed the rule of law continues to apply in an emergency. Governments cannot legislate by press release. I have said previously that, as a rule of thumb, a citizen can do whatever they want unless there is a law against it; but governments cannot do anything unless there is a law empowering them. For the New Zealand government (or an Australian state) to restrict liberty they can do so only by law.

But the case confirmed that the law can empower officers of the state (eg a Police Commissioner or Health Officer) to make orders and restrict liberties. And the restriction of personal liberty – even in the presence of the ICCPR and Human Rights legislation – is permissible when the restriction is reasonable and proportionate to the issues to be addressed. Human rights claims (other than the right to life) do not trump all else at all times.

In my post Challenging COVID restrictions – part 1 (April 23, 2020) I said:

If you think the current restrictions on your liberty is a breach of your fundamental and inalienable human rights, you could challenge them.  You could apply to a human rights watchdog and in some states, you may be able to seek a declaration in the Supreme Court.  My prediction is that, given the near universal international response, you would have no chance of persuading any tribunal that the current powers are not lawful.

Mr Borrowdale did take his objections to court, as was his right. And he did have some success but ultimately the court agreed that the restrictions on liberties was permissible under law. This is consistent with a previously reported outcome in the US – US Supreme Court rules on Californian COVID restrictions (June 4, 2020).  Those hoping to see challenges in Australia would draw little comfort from this decision even though the first cause of action was upheld.

On this blog I report on developments in the law that affects and applies to emergency management and I give my opinion on questions that people choose to ask on that subject. I am an admitted legal practitioner and have been since 1988 (now 32 years).  I have a Bachelor of Laws degree from the University of NSW, a Master of Laws from the University of Newcastle and a PhD from Monash University. I have conducted research on behalf of the Bushfire and Natural Hazards CRC and published numerous books, articles and conference papers on the subject. I think I can rightly claim to be an expert in the area.

The world wide web is a place for the ‘market place’ of ideas; anyone can set up a web page or a social media site to express their views, and those views can range from expert to deranged. I’m all for the principle of freedom of speech and freedom of ideas. People are entitled to hold ideas and to express them and others are free to look for them, consider them and form their own view on the value of what they read. But not all opinions are equal.

On this blog I express my views. Comments on this blog are moderated. They do not appear until I approve them. I have approved most comments (currently 2592 comments have been approved). I’m willing to entertain discussion and to be corrected. People are welcome to argue that I’m wrong and there are plenty of examples on this blog where I’ve amended or corrected what I’ve written on the basis of information and arguments provided by readers. The sort of comments that lead to correction are polite, engage with the argument and are usually referenced or at least coherent.

If you have posted a comment and it has not been approved within a day or two you might infer either WordPress has identified it as spam (which happens occasionally) or I have determined in my absolute discretion that what you have written is unhelpful, abusive, disrespectful, foolish, unintelligible, dangerous, wrong or all of the above. Further, I will not use this forum, or private messaging or email to engage with those ideas. Engaging with some ideas might suggest, to those expressing them, that they are actually saying something that is worth engaging with. Further given this blog is meant to be a law education blog, it may make some readers think the ideas being posited have some merit such that they deserve consideration. Not all ideas do.

So what follows is a general broadcast. People who have written comments can infer whether what follows applies to them.

The law can only be applied to facts. On this blog I cannot test the facts. When a court delivers a judgement the judge or judges outline what facts have been established by the evidence. When people ask a question, they give facts that I accept – my answers are based on the premise ‘If these facts are true, the law says …’

With respect to the current COVID pandemic this blog is not the place to debate the science. It is a law blog not a blog on epidemiology or virology. I accept that there are such things as viruses; there is a virus called Severe acute respiratory syndrome coronavirus 2 or SARS-CoV-2; this virus causes a disease called COVID-19 and that COVID-19 is more than the ‘flu. I accept that the governments are acting on informed health advice and the Prime Minister, Premiers and Chief Health Officers believe in the need for the various control measures that are being imposed. If those assumptions are wrong, then of course the legal consequences will be different but there is no value writing to me to dispute those factual issues. The factual issues are out of scope for this blog.

With respect to the law, everyone is welcome to ask me what I think the law has to say. But there is no value commenting to tell me, and others, your ideas about sovereign rights, the primacy of Magna Carta or the Bill of Rights or that being subject to law is a matter of consent. Nor is there value in putting ridiculous arguments with out of context references to ancient law. This is not your forum and your right to hold whatever deranged opinion you want and to express that opinion, does not impose an obligation upon me to publish incoherent rambling.

To conclude, if your comment does not appear it does not mean I think you are right, or that I don’t want to reveal the hidden secret that no-one is bound by the law unless they choose to be. It means I think what you have written is too offensive, non-sensical, incoherent or beyond the scope of this blog to be bothered with, and I’m choosing not to engage so as not to encourage you to think that what you have written is either intelligible or of value.  If you have written three or more comments that have not appeared, you can infer that I have no interest in what you are writing, and you might save everyone the time and effort by not writing again.

I have previously reported on a paramedic research project being conducted by the Australian National University – Research study on paramedic perceptions of law (March 18, 2020). That project has now been completed. You can access a summary of the findings, and a link to the final project paper, here –  Maddever – Summary of study findings v1.2 (17.08.20).

Today’s correspondent says:

You often say employees don’t get sued. How far does the employer’s vicarious liability go when employees are negligent? It appears that … [A] Nursing Home Covid outbreak began with an unauthorised staff party on site where some workers attended when not rostered on and avoided protocols.

I cannot talk about specific cases but I can talk general principles.

For vicarious liability we’re talking about the liability to pay damages in response to a civil claim for compensation. That is important for a number of reasons.

In a civil claim (eg in negligence) the only remedy available is money. The court can order a defendant to pay damages; nothing else. So the first step is to only sue a defendant who can pay. There is no point throwing good money after bad by suing someone who cannot pay.

The point of damages is to compensate the person who has suffered a loss. To put them back in the position, as far as money can do it, that they would have been had the tort not been committed. It is not to punish the wrongdoer or even to express moral outrage at their conduct. Again there is no value suing a person who cannot pay but that is also where vicarious liability comes in. The law has developed this concept to ensure that a defendant who is more likely to be able to pay can be sued. In an earlier post (Trying – again – to put to bed a myth about vicariously liability (November 30, 2019)) I said:

The justification for vicarious liability is not easy to explain – as the judges of the High Court of Australia noted in Hollis v Vabu (2001) 207 CLR 21 ‘A fully satisfactory rationale for the imposition of vicarious liability in the employment relationship has been slow to appear in the case law’ ([35], Gleeson CJ, Gaudron, Gummow, Kirby and Hayne JJ).   Some justifications are that the point of liability is to ensure that a person who is injured is compensated.  The ‘person’ that can best ensure that happens, either because they have the funds or the insurance policy, will be the business or government, not their employee.   Whether the employer is a business or a government delivering government services, they reap the rewards of the person’s labour, they pay the wages granted but the employee is acting in the employer’s interest not their own.  As the employer gets the benefit so too, they should take the risk.  The employer is also responsible for selecting employees, training them, building the relevant culture that may or may not prioritise safety etc.  All things that a person who engages with the business has no control over…

The point of vicarious liability is to ensure that a person who suffers a loss can recover compensation even when the employer has done everything, they can to avoid a risk. Remember schools can be held liable for the sexual assault of students by staff and clearly that is not part of their job –New South Wales v Lepore [2003] HCA 4.

Further the Insurance Contracts Act 1994 (Cth) s 66 provides that where an employer claims on their insurance policy (in effect asking their insurer to defend the claim) the insurer cannot, serious and wilful misconduct excepted, look to the employee to repay the damages.

Let us assume that there is ‘serious and wilful misconduct’ and that may avoid vicarious liability. But the case that the defendant has to answer is the case that the plaintiff choses to bring – the court is not free to roam at large to find a legal remedy, the court sits as a referee to judge the case that the parties bring. Vicarious liability arises where it is alleged the employee was liable in the course of his or her employment. But an employer can be liable in his or her or its own right. A plaintiff might bring the action alleging that the employer was liable for negligently training or supervising or selecting its staff. That is not vicarious liability, that is direct liability.

It may be negligent to have a system whereby people can enter the building when not on duty or where a party can be held, and no-one noticed and had the authority to take action. At the end of the day the employer sets the culture of the institution so behaviour that is formally prohibited but in fact tolerated may indicate negligent management. That is the rationale behind modern WHS legislation and why responsibility for the culture can move up the chain of command.

If a person is vulnerable such as they are in a residential care facility, they depend on the operators to manage the facility in a way that is reasonably safe. If that doesn’t happen then they can look to the management and argue direct, not vicarious liability.  At the end of the day where liability falls depends on all the circumstances and the case the plaintiff choses to bring. And they are going to bring the action against the agent who is most likely to have insurance for the obvious reason that suing anyone else is a waste of time effort and money.

Conclusion

How far does the employer’s vicarious liability go when employees are negligent? If employees are negligent in the course of their employment the employer is liable.  What constitutes ‘the course of their employment’ or ‘serious and wilful misconduct’ remains to be tested in each case.

“This panel discussion, chaired by Dr. Ruth Townsend, will explore the, at times, confusing legal and ethical area of paramedic management of mental health patients. Experts including Dr Louise Roberts will discuss how broad legal definitions can cause difficulties for paramedics in interpreting and applying the law; and the impact limited mental health education can have on paramedic preparedness for managing mental health patients. Professor Michael Eburn will unpack the often confusing ethical and legal mental health framework dilemma, including the issues that arise for paramedics when a competent mental health patient refuses treatment the paramedic believes is in their best interest; and ICP Andrew Cohen will discuss the paramedic experience of managing these patients in an often time critical, highly charged emotional environment.”

The panel discussion will be held on Thursday, 27 August 2020, 3 to 4pm.

For more details and to sign-up, see https://paramedics.org/events/law-eth-mentalhealth

I have previously reported on a medical practitioner who lost his registration for posts made on social media – see Inappropriate online comments: Professional misconduct (April 24, 2019).

Another doctor has come to grief for his posting on social media (and again I thank Bill Madden’s WordPress site for bringing this to my attention). In Ellis v Medical Board of Australia (Review and Regulation) [2020] VCAT 862 Dr Ellis was subject to immediate suspension of his registration for material he posted online. VCAT (the Victorian Civil and Administrative Tribunal) said:

Medical practitioners and social media

11        Before we consider Dr Ellis’ social media commentary, we make these important points.

12        We are not required to consider the right to freedom of expression that all citizens enjoy.  The right to freedom of expression is in any event not unlimited .  Similarly, this case does not concern academic freedom.  Rather, the case concerns a registered health practitioner’s particular use of social media.

13        Registered medical practitioners have special obligations.  Good Medical Practice: A Code of Conduct for Doctors in Australia (March 2014) (the Code) includes the following statement at 1.4 – Professional values and qualities of doctors:

While individual doctors have their own personal beliefs and values, there are certain professional values on which all doctors are expected to base their practice. Doctors have a duty to make the care of patients their first concern and to practise medicine safely and effectively. They must be ethical and trustworthy. Patients trust their doctors because they believe that, in addition to being competent, their doctor will not take advantage of them and will display qualities such as integrity, truthfulness, dependability and compassion. Patients also rely on their doctors to protect their confidentiality. Doctors have a responsibility to protect and promote the health of individuals and the community. Good medical practice is patient-centred. It involves doctors understanding that each patient is unique, and working in partnership with their patients, adapting what they do to address the needs and reasonable expectations of each patient. This includes cultural awareness: being aware of their own culture and beliefs and respectful of the beliefs and cultures of others, recognising that these cultural differences may impact on the doctor–patient relationship and on the delivery of health services. Good communication underpins every aspect of good medical practice. Professionalism embodies all the qualities described here, and includes self-awareness and self-reflection. Doctors are expected to reflect regularly on whether they are practising effectively, on what is happening in their relationships with patients and colleagues, and on their own health and wellbeing. They have a duty to keep their skills and knowledge up to date, refine and develop their clinical judgement as they gain experience, and contribute to their profession.  (Emphasis added)

14        Guidelines issued in November 2019 entitled Social media: How to meet your obligations under the National Law (the Social Media Guidelines) note that the inappropriate use of social media can result in harm to patients and to the profession.  The Social Media Guidelines further note that information stays on social media indefinitely – that it is often impossible to remove or change and it can be circulated widely, easily and rapidly.  In a section about “common pitfalls” the Social Media Guidelines advise that National Boards may consider social media use in a practitioner’s private life (even where there is no identifiable link to the person as a registered health practitioner) if it raises concern about the practitioner’s fitness to hold registration.  There is this warning: “While you may think you are engaging in social media in a private capacity because you do not state you are a registered practitioner, it is relatively easy and simply for anyone to check your status through the register, or make connections using available pieces of information”.

15        The Social Media Guidelines give examples of when social media activity could trigger someone making a notification about a registered practitioner:

Public health messages

While you may hold personal beliefs about the efficacy or safety of some public health initiatives, you must make sure that any comments you make on social media are consistent with the codes, standards and guidelines of your profession and do not contradict or counter public health campaigns or messaging. A registered health practitioner who makes comments, endorses or shares information which contradicts the best available scientific evidence may give legitimacy to false health-related information and breach their professional responsibilities. Practitioners need to take care when commenting, sharing or ‘liking’ such content if not supported by best available scientific evidence.

and –

Cultural awareness, safety and practitioner and patient beliefs – social and clinical

As a registered health practitioner, your views on clinical issues are influential. Comments in social media that reflect or promote personal views about social and clinical issues might impact on someone’s sense of cultural safety or could lead to a patient/client feeling judged, intimidated or embarrassed.

On his various social media accounts, Dr Ellis made posts that were classified as ‘medical’ or ‘social’ statements.  At [21] the Tribunal said:

In the notice of proposed immediate action, AHPRA described the 56 posts.  It described posts 1-38 as commentary expressing and encouraging views regarding vaccination, chemotherapy, and treatment for COVID-19 and other health topics that have no proper clinical basis and/or are contrary to accepted medical practice and/or are otherwise untrue or misleading .  It described posts 39-45 as statements that are denigrating and demeaning to the LGBTQI community.  It described posts 46-48 as “anti-abortion sentiments”.  It described posts 49-56 as denigrating and/or demeaning and/or broadly critical of the religion of Islam and that specifically call for the end to migration to Australia by Muslims.

In considering whether or not to confirm the decision to immediately suspend Dr Ellis’ registration, VCAT said (at [81]-[82]):

In considering whether we reasonably believe that because of his conduct Dr Ellis poses a serious risk to persons, we focus on the Medical Statements.  On the basis of the evidence we have referred to, we have a reasonable belief as to the following matters in particular.  Dr Ellis has published material – about vaccines, chemotherapy, and vitamin C and COVID-19 – that has no proper clinical basis or that is contrary to accepted medical practice or that is otherwise untrue or misleading.  He has publicly disparaged medical practitioners, including psychiatrists, the hospital system and pharmaceuticals.  Dr Ellis’ commentary has had at least the potential to deter members of the public from obtaining vaccination for themselves or their children, or from having chemotherapy; to encourage them to rely on unproven protocols for the prevention or treatment of COVID-19; and to undermine their confidence in doctors, hospitals and pharmaceuticals.  There were evidently thousands of persons who (wherever they were located) accessed the social media commentary.  A proportion of them knew that the commentary was by a registered medical practitioner.  Members of the public include vulnerable persons or persons who at least lack the qualifications necessary to evaluate the Medical Statements properly and make safe decisions about their health care.

The coronavirus pandemic has increased the risk that vulnerable or unqualified persons would, out of fear or desperation, turn to “advice” from unreliable sources.

And (at [92]):

In summary, expressing the matter in terms similar to those used by Horneman-Wren J in Oglesby, we have a reasonable belief that, because of his conduct, Dr Ellis poses a serious risk to persons.  We consider that there is a real possibility that he will engage in conduct that could be harmful to persons – whether by publishing (in one form or another) statements that are the same as or similar to the Medical Statements we have been considering; or by practising medicine in accordance with the views he has expressed in those statements rather than in ways that have a proper clinical basis and are in accordance with accepted medical practice.  The possibility of Dr Ellis acting in that way is not remote or fanciful, and the possible harm is not trivial.

On the question of whether immediate suspension was required, the Tribunal said (at [109]-[112]):

The Code and the Social Media Guidelines acknowledge that doctors have their own personal beliefs and values.  The Code and the Social Media Guidelines nevertheless make clear what the problems associated with Dr Ellis’ social media commentary are.  The Code provides that doctors are required to display qualities such as integrity, truthfulness and compassion.  Doctors have the responsibility to protect and promote the health of individuals and the community.  Doctors must be culturally aware and respectful of the beliefs and cultures of others.  The Social Media Guidelines require that doctors ensure that any comments they make on social media – whether by commenting, sharing or “liking” – are consistent with the codes, standards and guidelines of the profession and do not contradict or counter public health campaigns or messaging, lest they give legitimacy to false health-related information and breach their professional responsibilities.  The Social Media Guidelines further advise that social media comments that reflect or promote personal views about social and clinical issues might impact on someone’s sense of cultural safety or could lead to a patient feeling judged, intimidated or embarrassed.

By making the Medical Statements Dr Ellis has failed to display integrity and truthfulness and he has failed to protect and promote the health of individuals and the community.  He has contradicted or countered public health campaigns or messaging and so given legitimacy to false health-related information.  By making the Social Statements Dr Ellis has failed to display compassion.  Further, by making the Social Statements Dr Ellis has not been respectful of the beliefs and cultures of others.  Dr Ellis’ Social Statements have had the capacity to impact on persons’ sense of cultural safety or to lead to patients feeling judged, intimidated or embarrassed.

We re-state that this case does not involve consideration of the general right to freedom of expression, or academic freedom.  Counsel for Dr Ellis made a submission to the effect that today’s “heretics” are tomorrow’s “pioneers” and that, while he was not describing Dr Ellis as a pioneer, he was submitting that to go so far as to suspend Dr Ellis’ registration would have a “chilling effect” on doctors who had an interest in “advancing medicine”.  Counsel submitted that it would be dangerous to suspend a doctor for expressing “fringe” views because to do so may deter other doctors from engaging in debate.  Counsel further submitted that Dr Ellis’ “sin” was to publish his views via the “wrong” medium – where debate and discussion can be intemperate – and that, on reflection, Dr Ellis readily admitted that.

We do not accept those submissions.  Doctors are free to make contributions towards the advancement of medicine.  Ordinarily, they do so through appropriate discourse within the professional community.  In this context, there is an obvious difference between publication via social media and, say, publication in medical journals.  But there is a broader point.  Dissemination of material by a registered medical practitioner to the general public that is disparaging, denigrating and demeaning, or that otherwise has the capacity to cause harm to the community in the ways we have identified, is expression of a different kind altogether.  To take lawful, appropriate measures against the kind of expression that Dr Ellis has engaged in cannot reasonably be claimed to deter doctors from making contributions towards the advancement of medicine.  The Code and Social Media Guidelines make clear where the lines are drawn.

And (at [116]):

… In Kok, VCAT expressed concerns about whether the community would accept that any medical practitioner could switch, as though they were a light, from airing disrespectful views online to providing respectful and appropriate treatment for those who fall within a class they denigrate online: at [88].  Counsel for Dr Ellis challenged this notion by referring to Dr Ellis’ many positive character references, and by remarking that people can be chameleons.  Counsel for the Board acknowledged that Dr Ellis may ultimately have an answer to the concern, but he highlighted, correctly in our view, that the question is whether we have a reasonable belief that immediate action should be taken.  We emphasise that the concerns that we have are not only about the public’s reaction to the Social Statements but also the public’s reaction to the Medical Statements.  We express our reasonable belief that the public would legitimately have grave concerns that Dr Ellis’ published views on both medical and social topics would influence his practice of medicine.

Dr Ellis claimed that his views did not affect his practice but the Tribunal was not convinced. At [88] they said:

… we can and we do have a reasonable belief that because of Dr Ellis’ conduct in expressing the particular views on social media (in the manner he has, and for the period of time that he has) he poses a risk to patients in his practice.  The reasonable belief involves the straightforward proposition that people are more likely to act according to their views and opinions than contrary to them.  In saying that, we acknowledge that health practitioners should generally be able to give priority to accepted medical practice over any conflicting personal views they may hold.  But in Dr Ellis’ case, we are considering a practitioner who has repeatedly published emphatic, and often extreme, views.  We are conscious that Dr Ellis strongly maintains that when he sees patients, he gives priority to accepted medical practice.  The character references provide some support for that.  We emphasise, however, that we are not weighing probabilities.  We are considering our reasonable belief.

VCAT confirmed the decision of the Medical Board to take immediate action to suspend Dr Ellis’ registration pending final resolution of the allgations against him.

Discussion

Registered health practitioners, including paramedics, are bound by their ethical codes and those of their registration board including social media codes (for paramedics, see https://www.paramedicineboard.gov.au/Professional-standards/Codes-guidelines-and-policies/Social-media-guidance.aspx).

We are all entitled to our own views, but we are bound by professional codes and law. The interplay may be shown by the diagram below:

In an ideal world the three circles would overlap completely, but that is unlikely if not impossible. There are no-doubt things that some think are good and proper that a professional code or the law prohibits whilst there are others that some would think are wrong or improper that a professional code or law allows.

A paramedic with a firm belief in the healing power of crystals may believe that passing a crystal over a person with abdominal pain is appropriate treatment, but their colleagues and the law would probably assess that as inappropriate care. Regardless of their own committed belief, when practising as a paramedic they have to demonstrate that skill expected of a reasonable paramedic (see High Court overturns finding of negligence against Queensland paramedic (August 13, 2020)), not a crystal healer. By joining a profession, you become bound to practice within the bounds and norms of that profession which may require you to put aside your own personal views. If you cannot manage that conflict you have to consider whether you can remain in the profession.

Conclusion

Although this case was about a medical practitioner the warning applies to all registered health professionals. Membership of a profession may require putting aside personal views and beliefs to practice within the accepted norms of the profession.

The Australian national University’s Disaster Risk Science Institute is offering a Professional Short Course on Emergency Management in the Australian Federation: Legal and Constitutional Issues. The course will be delivered as three online sessions from 4-6pm on Tuesdays 15, 22 and 29 September 2020.

The teaching staff are, well, me.

If you are interested in taking part more detail can be found

• On the DSRI website – https://cce.anu.edu.au/drsi20; or
• In the attached flyer – DRSI Short Course flyer.

I have previously reported on the matter of Masson v State of Queensland, first in the Supreme Court of Queensland (Queensland Ambulance not negligent in treatment of patient’s extreme asthma (July 25, 2018)) and then in the Court of Appeal (Queensland Court of Appeal finds paramedic was negligent in treatment of extreme asthma (May 11, 2019)). Today, in State Of Queensland v The Estate of the Late Jennifer Leanne Masson [2020] HCA 28 the High Court unanimously allowed an appeal holding:

… that the State of Queensland, as provider of ambulance services under the name “Queensland Ambulance Service” (“QAS”), was not liable in negligence, either vicariously or directly, by reason of the failure of its ambulance officers to promptly administer adrenaline to Jennifer Masson, a chronic asthmatic, who suffered a severe asthma attack.

The High Court produces a summary statement of its reasons which you can read here – https://cdn.hcourt.gov.au/assets/publications/judgment-summaries/2020/hca-28-2020-08-13.pdf.  The discussion that follows below is my summary of the judgement (and you can read the Court’s reasons, not just the summary, here).

The court was constituted by Kiefel CJ, Bell, Keane, Nettle and Gordon JJ.

Kiefel CJ, Bell and Keane JJ

There were two questions to be answered. The first was ‘did Mr Peters, the treating intensive care paramedic ‘consider’ adrenaline as required by the CPM?’ and if he did ‘was the decision to administer salbutamol in preference to adrenaline a reasonable response?’  The trial judge had determined that the answers to both those questions was ‘yes’. The Court of Appeal found that the answer to both questions was ‘no’.

After recounting the history in the courts below (and reported in my earlier posts) their Honours said (at [10]:

The standard of care expected of Mr Peters was that of the ordinary skilled intensive care paramedic operating in the field in circumstances of urgency . Self-evidently, this is a less exacting standard than that expected of specialists in emergency medicine. The Court of Appeal correctly observed that intensive care paramedics cannot be expected to make fine professional judgments of a kind that require the education, training and experience of a medical specialist. This is not to say, however, that an intensive care paramedic is not expected to exercise clinical judgment. The guidance in the CPM is posited upon the assumption that ambulance officers will exercise clinical judgment and that officers may depart from its guidelines where the departure is justified and is in the best interests of the patient.

Importantly they said (at [11]) that the Clinical Practice Manual (the CPM) ‘was not, determinative of the range of reasonable responses for an intensive care paramedic treating an asthmatic patient in imminent arrest who presented with Ms Masson’s symptoms’. Having assessed Ms Masson’s condition it was open to Mr Peters to act upon his clinical judgment. At [22] they noted:

The stated object of the CPM was the provision for ambulance officers at all levels of clinical practice with a comprehensive guide to pre-hospital treatment and care. Notably, the CPM was said to depart from earlier “Clinical Protocols” in its emphasis on the exercise of officers’ “good judgement”.

And, at [34] they noted that the CPM required treating paramedics to ‘consider’ the use of various drugs.

… the CPM explained the use of the term “consider”:

“When this term is used it implies that the ambulance officer has to make a judgement regarding application of the following treatment modalities based on potential benefits and adverse effects. It does not imply that the following treatments are automatically appropriate or sanctioned. Consultation should be used if doubt exists.”

The Court of Appeal had found that when considering whether to use salbutamol or adrenaline a paramedic should have regard to the speed with which the drugs would act. At [70]-[71] their honours said:

There was no basis in the evidence for concluding, in the case of an asthmatic patient in imminent arrest, that the “consideration” of adrenaline in accordance with the CPM was not to be informed by the ambulance officer’s clinical judgment, allowing that in the case of a patient with Ms Masson’s high heart rate and high blood pressure IV salbutamol might be preferred.

Contrary to the Court of Appeal’s analysis, there was ample evidence to support the trial judge’s finding that, in 2002, a responsible body of opinion within the medical profession favoured the administration of IV salbutamol in the initial stage of treatment for a patient in Ms Masson’s overall condition, with her high heart rate and high blood pressure.

At [73] they said:

Intensive care paramedics are expected to exercise clinical judgment in applying the guidance contained in the CPM. If, as the trial judge found, Mr Peters’ decision to administer IV salbutamol to Ms Masson reflected his judgment that her high heart rate and high blood pressure were contra indications for adrenaline, the fact that that judgment was supported by a responsible body of opinion within the medical profession would be inconsistent with finding that Mr Peters failed to apply reasonable care. It remains to consider whether the Court of Appeal was right to overturn the finding that Mr Peters’ decision not to administer adrenaline in his initial treatment of Ms Masson was a clinical judgment.

In other words, the issue at this point became whether Mr Peters made a clinical decision. The CPM flowchart (shown in the earlier posts) identified the following symptoms as indicative of a patient at risk of ‘imminent arrest’:

GCS < 12/

Bradycardia/

Absent pulses

In those case a paramedic was directed to, amongst other things, consider adrenaline. The question was did Mr Peters consider and reject adrenaline (ie make a clinical judgement) or did he not consider adrenaline because Ms Masson was hypertensive and tachycardic, not bradycardic. At [78] their honours said:

… it was clear that Mr Peters considered adrenaline, the inference that he rejected it because he believed that Ms Masson’s tachycardia and hypertension were contra-indications for its use was well open. The trial judge’s finding that Mr Peters made a clinical judgment not to administer adrenaline because of the presence of Ms Masson’s high heart rate and high blood pressure was neither contrary to compelling inferences nor glaringly improbable. It should not have been overturned.

In other words, Mr Peters did not misunderstand that the CPM was intended to be a flexible guide to decision making rather than a strict, inflexible protocol. He understood that he had to make a call on which treatment to give and he did consider adrenaline, but determined that in the circumstances salbutamol was the preferable drug given Ms Masson’s presentation. He understood he needed to ‘consider adrenaline’ and he did, and ruled it out- a clinical judgment.

They concluded (at [79]):

The trial judge was rightly critical of the tendency of the parties in argument to treat the flowchart as if it were a statute or legal document. As his Honour explained, the flowchart was “intended to guide and assist rather than [to] proscribe decision-making” . The flowchart prompted consideration of adrenaline but did not require its administration. The decision Mr Peters made in the face of Ms Masson’s high heart rate and high blood pressure, to administer IV salbutamol, was supported by a responsible body of medical opinion. In the circumstances, his Honour’s conclusion that Mr Peters’ treatment of Ms Masson did not fall below the standard of care expected of an ordinary skilled intensive care paramedic was clearly correct.

Nettle and Gordon JJ

Their honours reviewed the evidence and the proceedings in the lower courts and said (at [139]):

In the result, the overall effect of the evidence led before the primary judge was that a responsible body of opinion in the medical profession in 2002 supported the view that Ms Masson’s high heart rate and blood pressure in the context of her overall condition provided a medically sound basis to prefer salbutamol to adrenaline at the time of initial treatment. Further, as his Honour observed , he was bound to bear in mind that paramedics are not medical practitioners specialising in emergency medicine. In the urgent reality with which Mr Peters was presented, he was faced with the dilemma of choosing between the administration of adrenaline, which he correctly understood would carry a real risk of worsening the patient’s condition, and salbutamol, which did not carry that risk. Consistently with a responsible body of medical opinion, he chose the latter, and such evidence as there was of practice among paramedics was that it was not an inappropriate decision. The reality was, as his Honour said , that this was a decision which could reasonably, in light of the competing risks, have gone either way. No breach of duty of care was established.

Discussion

This case is a recognition of growing professionalism in paramedicine. Led by the ambulance services (in this case QAS) paramedic ‘protocols’ have moved to ‘guidelines’ recognising the capacity of paramedics to make complex decisions when faced with complex conditions. The High Court has recognised that development and acknowledged that paramedics are capable of and expected to make clinical decisions. Those decisions need to accord with a ‘responsible body’ of opinion.

In that area there is still some way to go. Unlike earlier cases (think Neal v Ambualnce Service of NSW, Ambulance Service of NSW v Worley and Lithgow City Council v Jackson, all discussed on this blog) there was evidence from paramedics in this case. Each side called an ‘expert paramedic’ but they also both called ‘expert medical practitioners’ so there is still some way to go before a court will say that a decision has to be consistent ‘with a responsible body of para-medical opinion’ but there is a start.

Most importantly the court recognised that Mr Peters was an appropriate clinical decision maker. He had training and experience and knowledge to bring to bear and he was facing a complex case where drugs such as adrenaline were both indicated, and contra-indicated. Recognising that a poor outcome does not mean a poor decision is vindication that paramedics are not mere automatons required to implement procedures written by doctors but they too are health care professionals. That step has been taken further by the registration of paramedics under the Health Practitioner Regulation National Law.

With respect to my professional brethren part of the reason this case got to the High Court may have been the way the lawyers ran it. Queensland’s case was that Ms Masson was not at risk of ‘imminent arrest’ as all three criteria (GCS < 12, Bradycardia and absent pulses) were not present and therefore adrenaline was not an option. That is the State itself tried to treat the CPM as proscriptive and this was the subject of criticism by Kiefel CJ, Bell and Keane JJ at [79] quoted above.  With that ‘case theory’ it is not surprising that in evidence Mr Peters said that he was ‘prohibited’ from giving adrenaline.

The trial judge accepted that Mr Peters used the word ‘prohibited’ but he did not think that at the time of treating, Mr Peters really believed that he was not allowed to use the drug, just that given her presentation it was contra-indicated. The Court of Appeal took Mr Peters’ use of the word ‘prohibited’ as evidence that he did not ‘consider’ adrenaline as he was not allowed to.

Nettle and Gordon JJ said (at [111]-[112])

Possibly, if Mr Peters had been a judge or a lawyer or someone else whose education and experience has more to do with semasiology than the applied science of critical emergency care, he might have chosen an expression such as “not recommended” or “not appropriate”. But it is neither surprising nor at all unlikely that a paramedic whose day to-day business is one of making life and death decisions should conceive and speak of a “not recommended” or “not appropriate” course of initial treatment as one that is “not permitted”. Common sense and ordinary experience dictate that, just as a paramedic’s initial treatment must be immediate and unhesitating, a paramedic is likely to be inclined to conceive and speak of actions in perfunctory and unqualified terms. Of course, exceptionally, such a person might be so particular in his or her choice of language as to convey that, by stating that something is “not permitted”, he or she means that all choice is excluded. But whether that was the case here could only be decided by seeing and hearing the witness give his oral evidence.

The oft unspoken reality that lay witness statements are liable to be workshopped, amended and settled by lawyers, the risk that lay and, therefore, understandably deferential witnesses do not quibble with many of the changes made by lawyers in the process – because the changes do not appear to many lay witnesses necessarily to alter the meaning of what they intended to convey – and the danger that, when such changes are later subjected to a curial analysis of the kind undertaken in this matter, they are found to be productive of a different meaning from that which the witness intended, means that the approach of basing decisions on the ipsissima verba of civil litigation lay witness statements is highly problematic. It is the oral evidence of the witness, and usually, therefore, the trial judge’s assessment of it, that is of paramount importance.

What was said in a written statement, 9 years after the event and no doubt ‘workshopped’ by lawyers was not to be preferred to the oral evidence of what actually happened when it was clear that Mr Peters did ‘consider’ adrenaline and ruled it out.

Conclusion

One cannot get over the tragedy here. Ms Masson had an asthma attack in 2002. She lived in a persistent vegetative state until her death in 2016. In 2020 a court decides that the treating paramedic was not negligent. I just cannot imagine what that has been like for the Masson family or for Mr Peters and his colleagues and this author extends his sympathy to all involved.

From a distance however this case is a step forward in the growing field of paramedicine and paramedic professionalism. Paramedics are not only expected to make clinical decisions is it is recognised that they are trained and capable of making those decisions with due recognition for the circumstances that are unique to paramedic practice.

Today’s question relates to collateral damage when evacuating a building. The scenario I’m asked to consider:

… assumes that a premises has good processes, planning and training in place for fire/evacuation. They have an emergency incident that requires patrons at a hotel to be evacuated away from their primary evac area (a carpark) to the secondary area which is near a roadway. They are conducting a full evacuation of the entire premises, typically evacuating approx 100 people with about a dozen staff to assist. The full evacuation of the building is being conducted because of an actual fire or real possibility of a fire being present and they have deemed that it is safer for all patrons to be removed from the danger. They are directing people to that secondary area because the fire is blocking safe egress to their primary area.

When evacuating to their secondary area a person is hit by a car. Could they be at all liable for the persons injuries as they were the ones directing the person to that area?

The problem with predicting answers to questions like this is that it always depends on ‘all the circumstances’ and one can never give a guaranteed answer; but even with that disclaimer the answer is most likely to be ‘no’.

First the scenario says the secondary area is ‘near’ (not across) the road.  If it’s near the road I fail to see how there could be any suggestion of liability if the person steps off the road into the path of a car. I cannot imagine how that could be the fault of the hotel or its staff.

If the secondary area is across the road then there would be a question of whether that was a resonable area to designate as a secondary area and that would turn on what alternatives may have been available and what size of road it is. It’s a 6 lane divided road, asking people to cross the road may be negligent, but assume it’s a 2 lane (one in each direction ) suburban street.

With a fire in the building and/or people evacuating it may be prudent, if resources permitted, to have a warden in a high-viz vest shepherding people across the road and/or warning drivers not only of the fact that there are pedestrians on the road but also that there’s a fire in a building on the side of the road (and no, you don’t have to be a ‘traffic controller’ or the like; waving down a driver and saying ‘can you just wait here there’s a fire in that building’ is not unlawful (see my comment after the post Assisting NSW police with road closures (January 7, 2014 where I said:

Here’s an example from 1880, Ned Kelly’s holding the populace of Glenrowan when one man escapes and flags down the train carrying police. Did he have any authority to stop the train? No, but it can’t be suggested it was illegal to flag down the train to tell the driver and the police that the tracks had been ripped up and Kelly was hold up in Glenrowan.

So you’re driving along the freeway and you see a fire and you chose to stop and warn others; no authority is required. Of course the other driver’s commit no offence if they ignore you and travel past.

But, putting that issue to one side, directing a person to an evacuation centre across the road is not directing them to run across the road without looking and, most fundamentally, a driver has an obligation to look out for and not run over pedestrians. Everyone has a duty here and the fact that people are being evacuated does not remove their obligation to take reasonable care of their own safety and the duty of a car driver on the road not to hit them.

There is then the practical issue that compensation for car accidents is run of the mill day to day grind for many law firms. They know how to do it. People injured in car accidents recover under the state or territory compulsory third party insurance scheme. Every car, registered or not, is covered by the scheme. The scheme sets out how claims are made, what compensation is payable without proof of fault and what claims require proof of fault. They set up an insurer who in turn is very familiar with the process. Why would anyone look to any other party when the driver can be identified, and the claim process is straight forward?

An injured person may want to find another defendant to try and avoid limits in personal injuries compensation claims but then they face limits under other laws such as the various Civil Liability reforms of the early 1980’s.  The likely person who might raise it would be the CTP insurer that may have to pay out and they may try to find another defendant to share the cost. But losses are apportioned so even if someone said ‘we’ll the staff were 10% responsible’ that’s not a lot of money for a lot of effort to recover it.

On the other hand if the fire itself was negligently caused, a plaintiff may establish that there injuries were due to, and part of, the fire. In that case they could sue the premises for their negligence which may, depending on the jurisdiction, be worth more than, but be a more complicated action, than an action against a car driver.

Could the staff be liable? Not a chance – see Vicarious liability for the actions of fire wardens (March 5, 2016).

Conclusion

As always, the determination of liability depends on who did what and was what they did ‘reasonable’ in all the circumstances. In the scenario described the person who is most likely to be held to have caused the accident will be the car driver. Drivers are expected to look out for hazards, including surprises such as people on the road and buildings on fire on the side of the road. Equally pedestrians are expected to take care of their own well being which (depending on the size of the fire) may include not running in front of oncoming traffic.  The critical question for the staff managing the evacuation is whether there had been any planning, if the secondary evacuation centre was across the road, on how to warn drivers that there was an evacuation in place.

The risk of liability in the circumstances described would be almost zero (but never say never).