Today’s question comes from a Queensland paramedic who is a very difficult situation. There is a

… house very near to my own private residence which the occupiers all suffer with a variety of mental health conditions and social issues. Despite my efforts, the occupants are now aware that I am a paramedic with the state ambulance service, and they will on occasions make approaches to me when I am at home for advice on health matters. Last weekend I was woken by the matriarch of the house requesting that I assess her grandson who had allegedly been given illicit drugs the night before.

The matriarch has previous form for making health ombudsman complaints against other health practitioners, and I am aware that she is currently shopping for a lawyer to take on a case of medical negligence for the doctors involved in a previous hospital admission for her husband. With this in mind, I transported the drug affected grandson to the local hospital with his grandmother for further assessment.

I am trying to balance any risk between being a good neighbour and my professional registration. Is there a risk to my registration from any advice that I give to these people?

This is indeed a very difficult situation. As a general rule there is no duty to go to the aid of a stranger (Stuart v Kirkland-Veenstra [2009] HCA 15) so you would be in within your rights to tell them to call triple zero if they thought it was an emergency or otherwise make their own arrangements. But that is not helpful if they have a distorted view of the world and may make your life difficult.

Further one has to recall the case of Lowns v Woods (1996) AustTortsReps ¶81-376. In that case Dr Lowns was liable for failing to render assistance when requested even though he had no prior doctor/patient relationship with the patient. Critical in that case was that he was approached because the family knew he was a doctor (as with my correspondent). Critically, also, Dr Lowns was at work, he was at his surgery ready to see, but not yet seeing patients and there was no impediment to his attending. That would not be the same with my correspondent who is clearly not at work and in some cases may be unable to attend. Whether that is because he or she has already had one or two cleansing ales or is caring for children or has dinner on the stove or has just come off shift or any number of an infinite number of reasons.

Another key factor in Dr Lowns’ case was a provision in the then Medical Practice Act that provided it was unsatisfactory professional conduct to fail to render assistance in an emergency. There is no equivalent provision in the modern Health Practitioner Regulation National Law.  On balance I would suggest that finding that there would be a legal duty to provide any assistance would be difficult – even unlikely – but that’s probably what Dr Lowns’ lawyers told him, too.

The Paramedicine Board’s Code of Conduct (Interim) (June 2018) says (at [2.5]):

Treating patients or clients in emergencies requires practitioners to consider a range of issues, in addition to the provision of best care. Good practice involves offering assistance in an emergency that takes account of the practitioner’s own safety, skills, the availability of other options and the impact on any other patients or clients under the practitioner’s care, and continuing to provide that assistance until services are no longer required.

There is an expectation that good paramedic practice includes rendering assistance in an emergency but that begs the question of whether the events being described are, objectively speaking, an ‘emergency’.

The Code of Conduct also says (at [8.2]):

Professional boundaries allow a practitioner and a patient/client to engage safely and effectively in a therapeutic relationship. Professional boundaries refers to the clear separation that should exist between professional conduct aimed at meeting the health needs of patients or clients and a practitioner’s own personal views, feelings and relationships which are not relevant to the therapeutic relationship.

Professional boundaries are integral to a good practitioner–patient/client relationship. They promote good care for patients or clients and protect both parties. Good practice involves:

a) maintaining professional boundaries…

I’m not suggesting that my correspondent is not maintaining professional boundaries, but the family are not. Of course they are not bound by the Code of Conduct but it would be reasonable for my correspondent to try to establish those professional boundaries, ie to say ‘I’m at home and am not on call as a personal paramedic’; but one has to be careful if there really is an emergency.

Queensland does not have ‘good Samaritan’ legislation like other states. The Law Reform Act 1995 (Qld) s 16 says

Liability at law shall not attach to a medical practitioner, nurse or other person prescribed under a regulation in respect of an act done or omitted in the course of rendering medical care, aid or assistance to an injured person in circumstances of emergency…

But there are no other prescribed persons and my correspondent is a paramedic, not a ‘medical practitioner’ or ‘nurse’.

The Civil Liability Act 2003 (Qld) s 26 says:

Civil liability does not attach to a person in relation to an act done or omitted in the course of rendering first aid or other aid or assistance to a person in distress if—

(a) the first aid or other aid or assistance is given by the person while performing duties to enhance public safety for an entity prescribed under a regulation that provides services to enhance public safety; and

(b) the first aid or other aid or assistance is given in circumstances of emergency; and

(c) the act is done or omitted in good faith and without reckless disregard for the safety of the person in distress or someone else.

A prescribed entity for the purposes of s 26 includes ‘Queensland Ambulance Service established under the Ambulance Service Act 1991’ (Civil Liability Regulation 2014 (Qld) r 4 and Schedule 1).  Queensland Ambulance is also a prescribed entity for the purposes of s 27 that seeks to ensure that a prescribed entity is also not liable. In State of Queensland v Roane-Spray [2017] QCA 245 (discussed in State of Queensland STILL liable for paramedic negligence (October 25, 2017)) the Queensland Court of Appeal held that amendments to the Ambulance Services Act meant that

…the Queensland Ambulance Service, in its present form (as it was at the time of Ms Roane-Spray’s injury) is not a body corporate, and does not represent the State. It is an unincorporated body, an entity within the meaning of that term in schedule 1 to the Acts Interpretation Act 1954 (Qld), which consists of the commissioner, ambulance officers, medical officers and other staff members employed under s 13, from time to time. It is in that respect similar to an unincorporated club or association, which is comprised of its members from time to time.

The relevant defendant given the structure of the Act was the state of Queensland and the State of Queensland is not a prescribed entity for either ss 26 or 27.

One would infer that my correspondent, even if responding to the neighbours was part of his or her duties as a QAS paramedic would not enjoy the benefit of s 26 as he or she would be performing ‘duties to enhance public safety for’ the State of Queensland (the putative employer of QAS paramedics, not the Queensland Ambulance Service that has no independent legal existence (Ambulance Service Act 1991 (Qld) s 13).

Let me then turn to my correspondent’s question: Is there a risk to my registration from any advice that I give to these people? I cannot see any risk to registration in answering questions and providing generic advice (such as I do on this blog) provided the advice is professional and often that will require statements such as ‘I cannot make a diagnosis’, ‘I don’t have the equipment’ and ‘you should go and ask your doctor’.  There could be a risk if you provide advice you are not really in a position to give and the people rely on it or even if you qualify the advice and realise that they may still rely on it. The best advice may often be ‘you really need to go and see your doctor if you are worried about …’

In the story we’re told, my correspondent has been asked for assistance and has gone above and beyond the call of duty to respond. The question in disciplinary proceedings (which is where the risk to registration comes form) is how would other paramedics view the behaviour. Unsatisfactory professional performance is conduct of ‘the practitioner … below the standard reasonably expected of a health practitioner of an equivalent level of training or experience’.  Would other paramedics judge the conduct in that way?

Transporting the person to hospital is, I would suggest, imprudent. First it means that my correspondent is driving the car not providing patient care. If the person needs to go to hospital a more prudent response would be to call triple zero so the patient can receive care en-route from paramedics equipped with necessary drugs and therapeutic agents and where proper records of treatment etc can be maintained. If the patient went ‘flat’ en route there could be a risk to registration if other paramedics judged that a practitioner of ‘equivalent level of training or experience’ would have judged that the risk to the patient’s well being of being transported in a private car existed and could easily be avoided by calling for an on-duty ambulance crew.

We can all imagine cases, however, where further assessment may be justified but the case does not need an emergency ambulance; the sort of cases that fill paramedic facebook pages and ‘Save 000 for emergency’ campaigns. As neighbours we are free to offer to assist our neighbours who would benefit from being ‘checked over’ but who don’t need an emergency ambulance.  That makes sense if we are close friends, but I would infer that is not the case here. But the point of drawing that out is to show that one cannot say one should ‘always’ or one should ‘never’ do anything; the ‘right’ response depends on all the circumstances and the professional assessments made.

Equally, and hence the quote from the Code of Conduct, I don’t see that it would be open to find ‘Unsatisfactory professional performance’ if my correspondent refused to give advice and certainly if he or she refused to personally transport anyone to hospital. It would be open to any professional as part of maintaining professional boundaries to tell the neighbour that if they needed ambulance assistance, they should call triple zero and if they need to go to hospital but don’t need an ambulance call a taxi if they cannot drive themselves.

But again we cannot say there can never be a duty to help. We have been given the story in a particular way that no doubt colours all our views, but one can imagine that fellow professionals would think it ‘below the standard reasonably expected of a health practitioner of an equivalent level of training or experience’ to ignore cries for help from a neighbour with an infant child who says their baby is not breathing. I don’t think we can safely say it can never be expected that once a health professional is off duty, they can simply turn a blind eye to every request, just as Dr Lowns could not ignore the request from Ms Woods to come and help her brother; but consideration of all the circumstances would be relevant.

Conclusion

I am concerned about my correspondent’s position. A professional at home is at home and cannot be expected to provide a 24 hour medical service. Equally a health professional at home is still a health professional and a neighbour may well call them for help in circumstances where there are genuine threats to life and the professional neighbour is the only person with the skills to intervene. In between are many circumstances.

The Code of Conduct (Interim) recognises the limitations in providing care in an emergency where one has to consider all the circumstances, as well as the need to maintain professional boundaries which includes, I suggest, not turning one’s home into a clinic for demanding neighbours.

How my correspondent is to balance ‘being a good neighbour, professional obligations and ethics and the right to have a private life is a matter I cannot advise on. I can say that giving advice and assistance to the neighbour does not per se pose a threat to registration- there is nothing improper about helping those that ask for it should you chose to do so and the Code of Conduct expects that in a genuine emergency a professional will assist if they can. Equally refusing to attend and certainly refusing to provide personal transport and instead calling triple zero would not pose a risk to registration either. It follows that I would be very careful about adopting a policy of refusing to attend any request by a neighbour, but equally I would be very careful about ensuring those professional boundaries and not becoming their private paramedic and I would be very cautious about actually driving a neighbour who is not a close personal friend to hospital.

At the risk of ‘stepping out of my lane’ I would suggest that this issue needs careful management. My correspondent should think about raising the matter with peers for advice as well as with the QAS. It may be that if the situation becomes a problem the QAS, perhaps via a chaplain, could meet with the neighbours to help draw those necessary professional boundaries.

We’ve probably seen the videos of people being belligerent with Victoria police and shop staff – and if not, here are some:

• Melbourne woman threatens to sue police who questioned her for not wearing mask news.com.au (26 July 2020);
• Woman films herself refusing to wear a face mask in Victoria shopping centre during argument with police 7 News (27 July 2020); and
• Bunnings mask woman seen arguing with Australia Post staff in new video 9News, (27 July 2020).

A correspondent has also written to me saying

I read your with interest your blog regarding the current situation in Victoria and specifically police powers and the Public Health and Well Being Act 2008.

I must say, after reading the Act, I too arrived at the same conclusions as you did though I am not a barrister.

Police have no powers under the Act to enforce anything.

In fact, a person has no legal obligation to provide name and address to Police if requested – only an “authorised officer” has the power to request such and police are NOT authorised officers for purposes of the Act.

Amazingly, I have asked they produce their identity card which authorised officers are obliged to do, and they simply state that being in uniform is enough!!!

Finally, threats of arrest by police would constitute assault (I recall case law to the effect), and arresting any person for questioning is unlawful as you rightly pointed out.

I was arrested for refusing to provide my details and released after questioned and provided my details (conversation was recorded).

Appreciate your blog!!

Lest I be misquoted I’ll try again. In my post Policing the public health response – Victoria (July 10, 2020) I said that the police could not use force to take a person who was subject to the general lockdown that what was then in force, to return a person to their apartment. That is not the same as saying that the police could not ‘enforce anything’. It is an offence to fail to comply with a public health order. In that earlier post I said:

It is an offence to fail to comply with a direction made under s 190 or 200 (see ss 193 and 203). It is the police that usually enforce the criminal law but in this case, the Secretary may issue an infringement notice (s 209).

Just because the ‘Secretary may issue an infringement notice’ it does not mean that the Secretary must do so or that police have no authority. To again quote the Crimes Act 1958 (Vic) s458:

Any person, whether a police officer or not, may at any time without warrant apprehend and take before a bail justice or the Magistrates’ Court to be dealt with according to law or deliver to a police officer to be so taken, any person—

(a) he [sic] finds committing any offence (whether an indictable offence or an offence punishable on summary conviction) where he believes on reasonable grounds that the apprehension of the person is necessary for any one or more of the following reasons, namely—

(i) to ensure the attendance of the offender before a court of competent jurisdiction;

(ii) to preserve public order;

(iii) to prevent the continuation or repetition of the offence or the commission of a further offence; or

(iv) for the safety or welfare of members of the public or of the offender;

My point in my earlier post is that if police arrest a person breaking a lockdown with an intention of returning them to ‘the place where the person is required to be under the order’ that is not justified by this section. But that doesn’t mean they cannot arrest for the purposes set out in that section. And the primary purpose of arrest has to be to put the person before a court or otherwise commence proceedings.

It follows that if a person who is required to wear a mask is not doing so then they are committing an offence (Public Health and Well being Act 2008 (Vic) s 203). If they refuse to wear a mask police can arrest them for the purposes set out in the Crimes Act 1958 (Vic) s 458(iii) and (iv). If they refuse to give their identification details then an arrest could also be justified under s 458(i), because if the police don’t know the person’s name and address they cannot issue a summons or infringement notice and cannot, should it be necessary (eg if they ignore the summons or infringement notice) ‘ensure the attendance of the offender before a court of competent jurisdiction’.

Further the Crimes Act 1958 (Vic) s 456AA says:

(1)        A police officer … may request a person to state his or her name and address if the police officer … believes on reasonable grounds that the person—

(a)        has committed or is about to commit an offence, whether indictable or summary…

(2)        A police officer …who makes a request under subsection (1) must inform the person of the grounds for his or her belief in sufficient detail to allow the person to understand the nature of the offence or suspected offence.

(3)        A person who, in response to a request made by a police officer or a protective services officer in accordance with this section—

(a)        refuses or fails to comply with the request; or

(b)       states a name that is false in a material particular; or

(c)        states an address other than the full and correct address of his or her ordinary place of residence or business—

is guilty of a summary offence punishable on conviction by a level 11 fine (5 penalty units maximum).

(4)        A person who is requested by a police officer or a protective services officer under subsection (1) to state his or her name and address may request the officer to state, orally or in writing, his or her name, rank and place of duty.

(5)        A police officer or a protective services officer who, in response to a request under subsection (4)—

(a)        refuses or fails to comply with the request; or

(b)       states a name or rank that is false in a material particular; or

(c)        states as his or her place of duty an address other than the name of the police station which is the police officer’s or the protective services officer’s ordinary place of duty; or

(d)       refuses to comply with the request in writing if requested to do so—

is guilty of a summary offence punishable on conviction by a level 11 fine (5 penalty units maximum).

It’s not clear to me whether the first two videos that I’ve linked to are the same incident or different incidents. In one of the videos the police officer says that the requirement to provide a name and address is under ‘Commonwealth law’ and that is not correct. The obligation is under the Victorian Crimes Act, but just because the officer got the source wrong does not deny that the authority exists.  Lawyers spend a lot of time chasing down provisions and laws, police on the street are not required to give people legal advice. The assertion that she was required to provide her name and address was correct.

The police in the news.com.au video are on the ball. They hand over their details when requested (s 456AA(4) and (5), they tell the woman that they think she has committed an offence for not wearing a mask (s 456AA(2)) and they require her to provide her name and address. Her failure to do so appears to be an offence (ie an offence separate to the offence of not wearing the mask) and that again triggers their power to arrest (s 458).  Her assertion that she does not consent is irrelevant, the whole point of arrest is that it is depriving a person of their liberty. No-one ‘consents’ to being arrested.

A critical question is ‘is it an offence to not wear a mask in Victoria?’

The Stay at Home Directions (Restricted Areas) (No 4) has been issued by Dr Finn Romanes, Deputy Public Health Commander pursuant to section 200(1)(b) and (d) of the Public Health and Wellbeing Act 2008 (Vic).

Section 199 says that the Chief Health Officer may authorise various persons to exercise emergency powers. I will assume that Dr Romanes is duty authorised. The powers in s 200(1)(b) and (d) are powers to:

(b)       restrict the movement of any person or group of persons within the emergency area;

And

(d)       give any other direction that the authorised officer considers is reasonably necessary to protect public health.

This particular order applies to ‘everyone who ordinarily resides in the Restricted Area’ (as defined by the Area Directions (No 4) (see The Stay at Home Directions (Restricted Areas) (No 4), cl 13). Clause 5(6) says that a person may not leave their premises within the restricted area unless they

(a)        wear a face covering at all times; and

(b)       if subclause (7) (other than subclause (7)(a) or (c)) applies, carry a face covering at all other times.

Subclause (7) does provide exemptions but none of them appear to be relevant in any of the scenarios shown.

I cannot see that there is an obligation to wear a mask if you enter the restricted area from outside the restricted area.

The critical question becomes, at least for the first two videos, whether the woman ‘ordinarily resides’ in the restricted areas. I don’t know where the video was shot, but one can immediately see the problem for police. If we assume that the video was shot in one of the restricted areas, then prima facie she lives in that area but if she doesn’t produce ID they cannot know that.

An arrest, or a demand for ID is not unlawful because it turns out the person is not guilty of any offence. Police only need to have reasonable grounds to suspect the person is guilty of an offence to arrest (Crimes Act 1958 (Vic) s 461) or demand identification (s 456AA)..

It may be that the woman in videos (1) and (2) has not committed an offence. She may not ordinarily reside in a restricted area; she may have an exemption under cl 5(7); Dr Romanes may not have been duly authorised to issue the Stay at Home Directions (Restricted Areas) (No 4). Police cannot resolve all of that at the time. First they cannot address the issue of her address if she doesn’t tell them what it is. Second just because a person has an defence that does not make the arrest illegal; police do not determine guilt or innocence, courts do. Provided police have ‘reasonable grounds’ to believe an offence has been committed that is sufficient. A person may be able to challenge Dr Romanes’ appointment but I don’t think anyone would question that a police officer would have ‘reasonable grounds’ to believe he is duly authorised by the very terms of the order made.  As for a legitimate reason under cl 5(7) again if that is not offered to police they cannot form a view as to whether it applies.

As with most circumstances if one thinks police are acting ultra vires, it is usually better to cooperate and deal with it later rather than assert that ‘I’m right; you’re wrong’. Getting arrested and spending two years in court is a high price to pay to climb the moral high ground.

As for asserting that she’ll sue each officer personally for $60 000 that is rubbish. When you sue for ‘unliquidated damages’ (ie damages that cannot be quantified) you make a claim and ultimately a court assesses your actual losses. You can claim $60 000 but damages may be assessed at $6. Further if she alleges a tort (eg assault or false imprisonment) by a police officer, it is the State of Victoria that is liable (Victoria Police Act 2013 (Vic) s 74). She cannot simply chose to avoid that section. If she tries to sue the police officers personally it will still be the state of Victoria that is the defendant and that is there, no doubt, in part to stop people threating to take action against individual police in order to stop them performing their duties.

Conclusion 1

As always, we don’t know all the facts from a short video but from what we can see I would suggest:

1. If she was in a restricted area and not wearing a mask that would give police reasonable grounds to suspect she was committing an offence contrary to the Public Health and Well being Act 2008 (Vic) s 203.
2. That belief would justify making a demand that she provide details of her name and address. Failure to comply with that demand is also an offence.
3. There being reasonable grounds to suspect the commission of two offences, police could choose to exercise their powers of arrest to stop further breaches, to protect public safety and to take steps to put her before a court.
4. It is wrong to say that the ‘Police have no powers under the Act to enforce anything.’

Video 3

Video 3 is a different story. In that video the person is in Bunnings and an Australia Post outlet. These are private premises (even though Australia Post is a Commonwealth agency). They can set the terms and conditions of entry to their store. They don’t need authority to question the person or to ask them to leave. Trying entering Bunnings or Australia Post naked and test whether they have to let you in.

That is not unlawful discrimination on the basis of gender as alleged.  It may be unlawful discrimination if the person lived in a restricted area and was not required to wear a mask because (cl 5(7)(c)):

the person has a physical or mental health illness or condition, or disability, which makes wearing a face covering unsuitable…

Examples: persons who have obstructed breathing, a serious skin condition on their face, an intellectual disability, a mental health illness, or who have experienced trauma.

But the shopkeeper/employee would have to have some notice of that before it could be said they were discriminating on the grounds of disability by refusing to serve the person.

Conclusion

There is no ‘right’ to insist on not wearing a mask any more than there is a right to insist on the right to not wear a helmet when riding a motorcycle or a right to walk the street naked. Provided the Deputy Chief Health officer really holds the requisite belief that the actions are ‘reasonably necessary to protect public health’ then the order can be made and it’s a criminal offence to fail to comply.

If someone wants to challenge the ‘reasonableness’ of those orders getting arrested may be a good start. If a person is arrested and charged, they would have standing to raise those issues and take the matter to the High Court.  If you want to get arrested, fine – get arrested but don’t try to argue the police out of arresting you.  That just makes everyone’s life difficult for no good purpose.

Posting videos on facebook of half-baked legal understanding just demonstrates that the person is a [insert what you think is an appropriate descriptive statement here].

See also:

• Challenging COVID restrictions – part 1 (April 23, 2020); and
• Challenging COVID restrictions – part 2 (April 23, 2020).

Today’s correspondent asks for my

…  opinion on the following:

Prior to the Metropolitan Fire Brigade (MFB) ceasing to exist on July 1, the Metropolitan Fire Brigades Act 1958 – section 32B stated that “On an alarm of fire being received by a unit, those members of the unit specified by the Chief Officer must, with the appliances and equipment specified by the Chief Officer, proceed with all practical speed to the scene of the alarm of fire.”

Historically, it is my understanding that MFB used this particular section of their Act, particularly the phrase “practical speed”, as a justification for proceeding code 1 (emergency response) to the vast majority of calls. The only exception was less-common calls that were deemed to be of a low priority, such as an animal rescue.

The creation of Fire Rescue Victoria has seen the joining of MFB career firefighters with Country Fire Authority (CFA) career firefighters. There has been significant discussion about response codes to calls between the two merged groups. CFA firefighters have previously operated under a system where a code 3 (normal road conditions) response was quite common to calls considered to pose a low immediate threat to life and/or property, such fires not spreading, powerlines sparking and minor car accidents.

The phrase quoted from Metropolitan Fire Brigades Act 1958 – section 32B now exists in the Fire Rescue Victoria Act 1958. Does that section of the Act justify a code 1 response for all alarms of fire (defined as “any call for assistance at a fire, accident, explosion or other emergency”)?

Of course, one must consider the Road Safety Rules 2017 – regulation 306, stating that the exemption to the Rules for the driver of an emergency vehicle only applies if “it is reasonable that the provision should not apply”.

What’s “reasonable”, and how should one interpret the quoted portions of the Fire Rescue Victoria Act 1958 in light of the Road Safety Rules 2017, and vice versa?

To set it out in full the Fire Rescue Victoria Act 1958 (Vic) s 32B(2) says:

On an alarm of fire being received by a unit, those members of the unit specified by Fire Rescue Victoria must, with the appliances and equipment specified by Fire Rescue Victoria, proceed with all practical speed to the scene of the alarm of fire.

And, as my correspondent has noted, an alarm of fire is ‘any call for assistance at a fire, accident, explosion or other emergency’ (s 32A). Section 32B is similar to the Fire and Rescue NSW Act 1989 (NSW) s 11 which says:

When there is an alarm of fire, a fire brigade must, despite anything to the contrary in any Act, proceed with all speed to the fire and try by all possible means to extinguish it and save any lives and property that are in danger.

There are differences: The NSW Act says that the obligation exists ‘despite anything to the contrary in any Act’ and that the NSW Brigades must ‘proceed with all speed’, not just all ‘practicable speed’, but despite their differences I suggest they are sufficiently similar that lessons from one can be applied to the other. I have discussed the NSW section 11 in an earlier post: FRNSW and what does it mean to ‘proceed with all speed’? (October 6, 2015). In that earlier post (referred to above) I referred to the decision in Bennet and Wood v Orange City Council (1967) 67 SR(NSW) 426. I said:

The court held that the section [ie s 28 of the Fire Brigades Act 1909 (NSW) equivalent to the modern s 11 and s 32B of the Victorian Act] gave rise to no private right of action, that is it was not intended that anyone could sue for failing to comply with the section – the headnote (a summary but not a part of the court’s reasons) says that the effect of the case was to hold that section 28 was ‘merely descriptive of the obligations of the Board…’ (p 426).     In essence s 28 (and now s 11) are there to remind the Commissioner what the fire brigades are supposed to do and what his job is, but it doesn’t give rise to an actual legally enforceable obligation.

My conclusion was:

Section 11 of the Fire Brigades Act 1989 (NSW) [as it then was] is descriptive and does not impose any obligation that can be enforced by a person who is aggrieved that the brigades did not respond quickly enough.  The reference to ‘all speed’ has to be read as ‘all reasonable speed’ and that has to take into account all the circumstances including that the area where the fire occurred is protected by a retained rather than permanent fire crew.

The Victorian Act is even clearer given that it says all ‘practicable’ speed and does not purport to apply ‘despite anything to the contrary in any Act’. What follows is that one has to consider many factors to decide what is ‘practicable’ including the risk to other road users and the benefit to be obtained. I suggest that a clause like s 11 (in NSW) or 32B (in Victoria) is telling the Chief Officer that responding to a fire alarm is the brigades first priority, so don’t finish lunch or do other tasks that were received first because the ‘fire can wait its turn’. It does not however give a ‘blank cheque’ to travel at whatever speed one get the appliance up to nor does it mean that the service cannot determine policies about what is practicable given the nature of the alarm.

To turn to the questions asked:

Does that section [ie s 32B] of the Act justify a code 1 response for all alarms of fire (defined as “any call for assistance at a fire, accident, explosion or other emergency”)?

Yes, my view is that it does justify a code 1 response, but it does not require it. It is up to Fire Rescue Victoria to determine its policy on responding to fires and to consider what is ‘practicable’ in the myriad of circumstances that the now expanded service will face.

What’s “reasonable”, and how should one interpret the quoted portions of the Fire Rescue Victoria Act 1958 in light of the Road Safety Rules 2017, and vice versa? 

I note that the Road Rules 2017 (Vic) still define an ‘emergency vehicle’ by reference to the MFB and CFA. I’m sure, without checking, that the ‘savings and transitional’ provisions that brought about the changes to Victoria’s firefighting arrangements will provide that any reference to the MFB is to be read as a reference to Fire Rescue Victoria and I will assume therefore that Fire Rescue Victoria appliances are an emergency vehicle for the purposes of the Road Rules.

For a discussion on determining what is reasonable see Road traffic exemption – Who determines if it is reasonable that the provision should not apply? (May 22, 2016).

Reasonable is one of the great words of English/Australian law that leaves the response to be determined ‘in all the circumstances’ and with the consequence that you can only know whether your conduct was ‘reasonable’ after the event. Certainly, it would not, in my view, be ‘practicable’ to respond without regard to the Road Rules (and that was my conclusion on the NSW section too, even though it says it applies ‘despite anything to the contrary in any Act’). It is practicable for Fire Rescue Victoria to drive contrary to the normal road rules in circumstances permitted by r 306 as it applies in Victoria, in other circumstances their practical speed must be limited by the need to comply with road rules including stopping at traffic lights and complying with the speed limit.

When developing their response policy, Fire Rescue Victoria like the former MFB and CFA will need to consider their circumstances. Perhaps the fact that the MFB operated only within Melbourne meant that priority 1 responses were more ‘routine’ than in country Victoria. Now that Fire Rescue Victoria operates in both realms one might think that simply adopting the ‘norms’ of either organisation will not be fit for purpose.

The new organisation can, and I would be bold enough to say should, reflect on its all of Victoria mandate and it may determine that a priority 1 response is not ‘reasonable’ in all cases and that the benefit of any faster response time has to be balanced against the risk to firefighters and other road users, and sometimes it’s not ‘reasonable’ to expose those firefighters and other road users to a great risk for a marginal benefit. If it is not ‘reasonable’ (as the term is used in r 306 of the Road Rules), then it’s not ‘practicable’ to proceed other than in accordance with the Rod Rules.

Conclusion

It would be my view that s 32B(2) of the Fire Rescue Victoria Act 1958 (Vic) would justify, but would not require, a code 1 response to every ‘alarm of fire’ even where the event was perceived to be of low risk and where it can be shown that the policy response is ‘reasonable’ taking into account the various benefits and costs (or risks) associated with response driving.

But the obligation remains in both metropolitan and country Victoria. On receipt of an alarm of fire, responding too that alarm takes priority over other tasks.

Today’s question is about ‘citizen’s arrest’ in NSW. Perhaps not an ‘emergency law’ question save that the stimulus for the question comes from the TV show ‘Bondi Rescue’ so the people making the arrest are the lifeguards ie emergency personnel. The question is:

I watched the following video: https://www.youtube.com/watch?v=DZLH3vK8PwM

It’s a Bondi beach and they actually grab supposed thieves. Is this allowed? At 13:58 you can see one example. The one with the black shorts is a probable thief (they have seen him taking an unattended bag), the other one is a lifeguard.

I haven’t watched the whole video and I’m not going to comment on the particular incidents, but the law is clear.

The Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (LEPRA) s 100 says:

(1) A person (other than a police officer) may, without a warrant, arrest a person if–

(a) the person is in the act of committing an offence under any Act or statutory instrument, or

(b) the person has just committed any such offence, or

(c) the person has committed a serious indictable offence for which the person has not been tried.

(2) A person who arrests another person under this section must, as soon as is reasonably practicable, take the person, and any property found on the person, before an authorised officer to be dealt with according to law.

(The power of police to make an arrest is set out in s 99 and has more extensive circumstances that we don’t need to consider).

Stealing (or Larceny) is an offence punishable ‘under any Act’, in particular the Crimes Act 1900 (NSW) s 117.

Sub-section 2 may appear to be problematic and is a carry-over from old legislation. It says the person making the arrest must take the person before an ‘authorised officer’. An ‘authorised officer’ is (s 3):

(a) a Magistrate or a Children’s Magistrate, or

(b) a registrar of the Local Court, or

(c) an employee of the Attorney General’s Department authorised by the Attorney General as an authorised officer for the purposes of this Act either personally or as the holder of a specified office.

No-one who makes a citizen’s arrest actually takes the offender to court, they hand them over to police. Police can then ‘take over’ the arrest, that is effectively ‘end’ the citizen’s arrest and then exercise their powers of arrest.  Further the case law dealing with the old Crimes Act 1900 (NSW) s 352 (that was in similar terms) says that delivering the person to police is sufficient compliance.

Brown v GJ Coles trading as Coles New World Supermarket [1985] FCA 114 was a decision of the Full Court of the Federal Court of Australia hearing an appeal from a judge of the Federal Court. The matter was in the Federal Court because the events occurred in the Australian Capital Territory before the passage of the Australian Capital Territory (Self-Government) Act 1988 (Cth). At that time NSW law applied in the ACT so the court was interpreting s 352 of the Crimes Act 1900 (NSW) (now repealed) that said that a citizen, when making an arrest, was required to take the person ‘before a Justice to be dealt with according to law’.  In this case the store loss prevention officer had taken the alleged offender to the office and called police who after making inquiries continued the arrest. Davis J said:

The principal burden of Dr O’Connor’s submissions [Dr O’Connor was the lawyer for the defendant] was that a citizen who arrests another under the powers conferred by s.352 must take the arrested person immediately before the appropriate authority and is not entitled to delay such taking while consulting with a more senior person or calling in aid an officer of the police. Yet that view has been distinctly rejected.

In Leachinsky v Christie [1947] UKHL 2; (1946) 1 KB 124 Uthwatt LJ said, at pp.148-9 :

“. . . Arrest is a step in criminal procedure directed to leading to an adjudication in due course of law on the conduct in the matter in hand of the person arrested. For it is the duty of a constable arresting without warrant with all due speed to bring the individual arrested before a court of justice having jurisdiction in the matter, and it is the duty of the private citizen either to take that course or to hand the supposed offender over to a constable with a view to that course being taken. Neither can justify private detention. There is no lawful arrest therefore unless the interference with the individual’s liberty is made as a preliminary step to an investigation by a court of justice. . . “

In John Lewis & Co Ltd v Tims (1952) AC 676, where the facts were similar to those with which we are concerned, Lord Porter said, at pp.687-8:

“Where the right of arrest is given to a private person, it is obviously desirable that the arrested man should be entrusted to some official care as soon as possible, and statements to that effect are to be found in, I think, all the textbooks, old or new. . . . “

At pp.691-2, his Lordship said:

“The question throughout should be: Has the arrester brought the arrested person to a place where his alleged offence can be dealt with as speedily as is reasonably possible? But all the circumstances in the case must be taken into consideration in deciding whether this requirement is complied with. A direct route and a rapid progress are no doubt matters for consideration, but they are not the only matters.

Those who arrest must be persuaded of the guilt of the accused; they cannot bolster up their assurance or the strength of the case by seeking further evidence and detaining the man arrested meanwhile or taking him to some spot where they can or may find further evidence. But there are advantages in refusing to give private detectives a free hand and leaving the determination of whether to prosecute or not to a superior official. …

Sheppard J (dissenting, on other grounds) said

It appeared to me that counsel’s argument went so far as to suggest that s. 352 conferred only one power, namely a power to apprehend and to take the person apprehended before a justice. If the person making the arrest did not take the arrested person before a justice, the power had not been exercised according to law with the consequence that the arrest was unlawful. I would reject that submission. A similar submission was rejected by Asprey J.A. in Jobling’s case; see (1969) 1 N.S.W.R. at p. 135. I would respectfully agree with what his Honour there said.

Everett J said:

As I understood the argument of counsel for the appellant, it was submitted that the provisions of sub-section 352(1) were in effect one and indivisible, to the extent that the two physical acts to which the provision refers – namely, the apprehension and the taking of the arrested person before a Justice to be dealt with according to law – are not severable but are strictly joint. That is to say, the argument was that unless the second of the two physical acts is in fact done by the person who makes the arrest, the whole arresting process is without lawful justification and therefore actionable.

Such an interpretation of sub-section 352(1) is, in my opinion, without authority, illogical and overlooks the purpose of the arresting process.

I would reject the argument for the reasons expressed by Mr Justice Davies and against the background of the authorities to which he has referred. In my opinion, the actions of the store detective [in holding the offender until the arrival of police] were lawful.

In other words, notwithstanding that s 352 of the Crimes Act said, and s 100 of LEPRA now says that a citizen is to ‘take the person, and any property found on the person, before an authorised officer’, holding the person until police arrive is consistent with that obligation, and police can then form the view to take over the arrest and continue the prosecution or release the person (LEPRA s 105).

As for the use of force, LEPRA s 231 says (emphasis added):

A police officer or other person who exercises a power to arrest another person may use such  force  as is reasonably necessary to make the arrest or to prevent the escape of the person after arrest.

I have not (and will not) go through the case law on the mental state required for a lawful arrest suffice to say that being wrong does not make the arrest unlawful. If the arrested person is acquitted or after further investigation the arrest is discontinued or charges are withdrawn, that does not make the original arrest unlawful. What is critical is whether the decision to arrest was reasonable the circumstances, that is whether the arresting citizen, or police officer, ‘reasonably believed’ that the circumstances in s 100(1) existed (see the various cases cited in Brown v GJ Coles and in particular, Leachinsky v Christie (1946) 1 KB 124 and John Lewis & Co Ltd v Times (1952) AC 676).

Conclusion

If a life saver, or life guard, or any person sees someone take a bag in circumstances where they reasonably believe the person has committed an offence they may, with reasonable force, detain the person and hold them until they can be delivered to police.

This post has been made with reference to NSW law but a citizen’s arrest is permitted in every jurisdiction. The law allows a citizen to ‘actually grab supposed thieves’.

For another posts on  lifeguards and lifesavers acting as law enforcement, see:

• Lifeguards as law enforcers? (July 6, 2014)
• Authority of a surf lifesaver (January 11, 2016)

 

Today’s correspondent asks about

… the highly publicised lockdown of nine public housing towers in Melbourne. Amongst my friends and peers there seems to be widespread acceptance that the lockdown of these towers and their inhabitants is necessary, but there also seems to be considerable outrage over the use of the Victorian Police to enforce and monitor the lockdown.

My questions for you are, disregarding all logistical or manpower considerations:

• Does this lockdown need to be carried out by police?
• What are the legal implications of health professionals enforcing this lockdown?
• Would a health professional be able to issue fines for non-compliance or stop, with reasonable force, an individual that chooses not to abide by the lockdown orders?

I’d be grateful if you could shed some light onto the relevant legislation.

The lockdown is authorised by the Public Health and Wellbeing Act 2008 (Vic). That Act, in Part 10, gives the Chief Health Officer extensive powers to take action ‘to investigate, eliminate or reduce public health risks’. These powers include the powers in s 200 to

(a) detain any person or group of persons in the emergency area for the period reasonably necessary to eliminate or reduce a serious risk to public health;

(b) restrict the movement of any person or group of persons within the emergency area;

(c) prevent any person or group of persons from entering the emergency area;

(d) give any other direction that the authorised officer considers is reasonably necessary to protect public health.

The Stay at Home Directions (Restricted Areas) issued on 8 July 2020 is made pursuant to s 200. (You can see all the Directions at https://www.dhhs.vic.gov.au/victorias-restriction-levels-covid-19 under the heading ‘Directions issued by Victoria’s Chief Health Officer’.

To return to the question I was asked, the critical question is ‘who is an authorised officer?’

The Public Health and Wellbeing Act 2008 (Vic) s 30 says

(1) The Secretary by instrument may appoint a person employed under Part 3 of the Public Administration Act 2004 to be an authorised officer for the purposes of this Act.

(2) The Secretary must not appoint a person to be an authorised officer under this section unless the Secretary is satisfied that the person is suitably qualified or trained to be an authorised officer for the purposes of this Act.

(3) An appointment of a person to be an authorised officer may—

(a) specify the functions, duties or powers under this Act or the regulations to which it relates; and

(b) be made subject to any conditions that the Secretary considers to be appropriate….

(6) The Secretary may give a direction to an authorised officer appointed by the Secretary in relation to the performance of the authorised officer’s functions or duties or the exercise of the authorised officer’s powers under this Act or the regulations.

(7) A direction given under subsection (6) may—

(a) be of a general nature; or

(b) specify that the direction relates to a specific matter or specified class of matter.

It’s not all or nothing. It’s not that an authorised officer can exercise all the powers under the Act, only those that he or she is authorised to exercise and on the terms set out in any direction. But anyone employed under Part 3 of the Public Administration Act 2004 (Vic) can be appointed an authorised officer.  Council officers can also be appointed (s 189(b)).

Part 3 of the Public Administration Act 2004 (Vic) deals with employment in the ‘public service’ that is Departments and Administrative offices (ss 10 and 11). What are the departments and administrative offices that make up the Victorian Public Service? That is explained on the Victorian Public Sector Commission website at https://vpsc.vic.gov.au/about-public-sector/employer-public-sector-bodies/. It includes Ambulance Victoria and Victorian health services.

The use of force – Public Health Orders

A public health order is an order made under s 117 (see s 1, definition of ‘public health order’). Section 123(4) says:

A police officer may use reasonable force to detain the person subject to … a public health order and take that person to—

…(b) the place where the person is required to be under the order.

That would be fine save that the orders relating to the covid lockdown say they have been made under s 200 ‘Emergency Powers’, not s 117 ‘Public Health orders’.

The use of force – Public Health Risk and Emergency Powers

Section 200 is triggered by the declaration of a state of Emergency (see s 198). That declaration has been made.  That declaration allows the Chief Health Officer to authorise an authorised officer to exercise the powers listed in ss 190 (Public Health Risk Powers) and 200 (Emergency Powers) (see s 199(2)).  An authorised officer may be assisted by police (ss 192 and 202).  Apart from s 123(4) there is no provision allowing the use of force to ensure compliance with directions made under s 190 or s 202. Section 123 is not relevant as the orders are not ‘Public Health Orders’ as defined by ss 1 and 117.

It is an offence to fail to comply with a direction made under s 190 or 200 (see ss 193 and 203). It is the police that usually enforce the criminal law but in this case, the Secretary may issue an infringement notice (s 209).

To be honest I cannot see where there is a power to use force to ensure compliance. The Crimes Act 1958 (Vic) s 458 says

Any person, whether a police officer or not, may at any time without warrant apprehend and take before a bail justice or the Magistrates’ Court to be dealt with according to law or deliver to a police officer to be so taken, any person—

(a) he [sic] finds committing any offence (whether an indictable offence or an offence punishable on summary conviction) where he believes on reasonable grounds that the apprehension of the person is necessary for any one or more of the following reasons, namely—

(i) to ensure the attendance of the offender before a court of competent jurisdiction;

(ii) to preserve public order;

(iii) to prevent the continuation or repetition of the offence or the commission of a further offence; or

(iv) for the safety or welfare of members of the public or of the offender;

Detaining someone who is breaching an order may well be relevant to subparagraphs (a)(ii), (iii) and (iv) but the overarching purpose of arrest under this section is to take the person ‘before a bail justice or the Magistrates’ Court to be dealt with according to law’ not to return them to where they are meant to be or ensure compliance with a direction under the Public Health and Wellbeing Act 2008 (Vic).  Arresting them for the purposes of returning them to the area of detention would not be justified by the Crimes Act 1958 (Vic) s 458; see also Bales v Parmeter (1935) SR(NSW) 182; Williams v R (1986)161 CLR 278.

It may be that the use of the word ‘detain’ and ‘detention’ in s 200 implies a power to use force, but the Act does not say that.  Equally one might find a right to use force in some ancient common law on the power of a constable to preserve the peace, a power that is retained by Victorian police by virtue of the Victoria Police Act 2013 (Vic) s 51which says (unhelpfully) says:

A police officer who has taken and subscribed the oath or made and subscribed the affirmation under section 50 has—

(a) the duties and powers of a constable at common law; and

(b) any duties and powers imposed or conferred on a police officer by or under this or any other Act or by or under any subordinate instrument.

A section that requires a person to go back through history to identify what are the duties and powers of a constable at common law is unhelpful for both members of Victoria police and the citizens of Victoria. A pamphlet on the Office of Constable (2018) produced by the Police Federation of England and Wales says:

In England the office of constable was in existence during Henry I’s reign. The principal duty of the constable, which was a military term at this stage, was to command the army.

The term constable first appeared after the Norman conquest, and towards the end of the 12th century acquired the local significance it has held ever since.

The Statute of Westminster 1285 enshrined the principles of two high constables appointed in every hundred with responsibility for suppressing riots and violent crimes and for the arming of the militia to enable them to do so.

Henry I reigned from 1100-1135 so if one would have to trace over 900 years of case law in both England and Australia to identify the ‘duties and powers of a constable at common law’. It follows that no-one really knows what those duties and powers are and Victoria Police Act 2013 (Vic) doesn’t help.

Discussion

This has been a really interesting outcome. First, I cannot see any provisions in the Public Health and Wellbeing Act 2008 (Vic) that allow the use force to ensure compliance with the Chief Health Officer’s Directions. The penalty for non-compliance is a fine (ss 193 and 203). A person could walk out of the building and receive an infringement notice. The Act provides for no other enforcement unless the order is made under s 117 and none of the directions that I have seen refer to s 117.

Police could arrest a person who breached the order on the basis that their arrest was necessary to ‘to preserve public order’, ‘prevent the continuation or repetition of the offence or the commission of a further offence’ or it was necessary ‘for the safety or welfare of members of the public or of the offender’ but that arrest would only be lawful if at the time fo the arrest the police officer intended to take the person ‘before a bail justice or the Magistrates’ Court to be dealt with according to law’.

If there is a power to use force it is implied by the word ‘detain’ in s 200 or to be found in 1000 years of case law. That is not satisfactory.

What follows in my view, is that if police or anyone used force to detain a person who chose to leave the ‘locked down’ apartment block and returned them to the block, rather than taking them to the police station to charge them and then perhaps release them on bail with conditions that they return, then the person arrested would have a good argument to bring a claim for assault and false imprisonment.

Conclusion

So where does that leave my correspondent’s question? It follows that the lockdown does not have to be enforced by police as they’ve got no specific power. Any member of the public service including health officials or members of Ambulance Victoria could be ‘authorised officers’ and they could give directions to a person to remain in their premises and they could, if authorised, issue an infringement notice.  Even they could arrest someone under s 458 and hand them to police for prosecution.

The use of police, I suspect, deals with the ‘logistical or manpower considerations’ that I have not considered. And Police carry a great moral suasion. People are used to doing what they are told to do by police because, whether the police have the legal power or not, complying is easier than testing both their patience and their legal authority. Getting arrested, charged and appearing before a court is a big price to pay even if 2 years later a court agrees with you that there was no power to use force. And given there’s 900 years of history to troll through, a court could probably find a relevant power if it really wanted to.

This is clearly an unsatisfactory situation and in my view brings out some very poor drafting in the Public Health and Wellbeing Act 2008 (Vic) and lazy drafting in the Victoria Police Act 2013 (Vic).

Today’s correspondent says:

Some years ago there was a report into Bullying in CFA done at the request of the State government and completed by the state human rights commission.

Because CFA and the Unions argued that only CFA can investigate CFA the report was suppressed from public publication by a lawful court order.

BUT senior CFA officials and their legal staff viewed the report and the complaints from the 563 CFA volunteers who lodged formal written complaints about bullying harassment intimidation assault and sexual assault in CFA.

While the release of the report is banned I would like to know what is the legal requirement for CFA having been informed of these complaints and being aware of the names and addresses of the people who did complain, to act on those complaints and launch their own internal CFA investigation of the complaints ?

This has not happened

None of the 563 CFA members have been contacted by CFA with regards their complaints (to my knowledge).

No CFA counselling or peer support has been offered to any of these complainants, they have only been told that they cannot even have a copy of their own statement to the investigation because it’s suppressed.

What would be the legal requirements for CFA to deal with this?

The report that my correspondent refers to is discussed in my post Report on discrimination, sexual harassment and victimisation in the CFA and MFB to be withheld (October 5, 2018).  To correct one issue, the result was not that ‘only the CFA can investigate the CFA’ it was ‘only the CFA or the MFB could request the Victorian Equal Opportunity and Human Rights Commission (VEOHRC) to conduct a review of the CFA or MFB’ but at the end of the day it’s correct that VEOHRC could not publish its report.

I would be very surprised if the CFA was informed of the details of the complaints or of the names and addresses of the people who did complain. The decision before the Court of Appeal talked about an online survey. I don’t know the terms on which that was conducted but it may have been anonymous or with a guarantee that identifying information would not be shared with the MFB/CFA.  The privacy principles say that information can only be used for the purposes for which it was obtained. If the information was obtained for the purposes of a review by the VEOHRC it would be a breach of privacy to then share that with the MFB or CFA.  Without further material, I would very much doubt that the CFA has the information suggested.

The CFA one can infer however knows that there are issues and maybe it does have some identifying information. The CFA has both common law and statutory duties to ensure that the CFA is a safe place for workers and volunteers ((though the duty to volunteers is not express in Victoria as it is in those states that have adopted the Model Work Health and Safety Act).   That means if the CFA is aware of a culture of bullying and sexual harassment it has to take reasonable steps to deal with that, but no doubt it claims to do so.

As for approaching individuals that is problematic. Again I’m sure the CFA has a complaints process and provides for an employee/volunteer assistance program. It cannot compel people to use them (just as an employer cannot compel a person to make use of resources to help deal with their PTSD – see Negligence claims relating to PTSD (May 14, 2018)).

Even if someone in the CFA does know of someone who made a complaint or provided information to VEOHRC if they have not complained to the CFA then it would appear to me to be improper to behave as if they have. They may not have lodged a complaint for a reason and you cannot force them to do so.

Conclusion

To give any informed answer to those questions one would need a lot more detail of how the VEOHRC inquiry was conducted, how and what information was obtained and on what terms, how did the CFA and MFB work with VEOHRC during that process etc.  My immediate thought is that I very much doubt the VEOHRC either did or could share information about the complainants with the CFA or MFB and if that’s right there can be no legal obligation to follow up with individuals unless and until they make a complaint or reach out to the CFA or MFB.

Today’s correspondent is interested in my opinion of the effect of s 100(1) of Country Fire Authority Act 1958 (the CFA Act).  That section says:

The role of Volunteer Fire Brigades Victoria Incorporated in relation to this Act is to enable members of brigades (other than industry brigades) to consider and bring to the notice of the Authority all matters affecting their welfare and efficiency (other than questions of discipline and promotion).

I’m told that:

The CFA appears to use this section to effectively hamstring VFBV from providing advocacy for volunteers with disciplinary matters. My lay view, is that the section prohibits the VFBV from raising an issue with the authority but should not prohibit them advocating or assisting a volunteer in their defence of any disciplinary matter brought against them. what do you think?

I infer from the question that if someone from the VFBV is seeking to appear for, or as a support person for, someone going through that process the CFA says they cannot as that is not expressly provided for in s 100?  Is that the gist of the issue?

Volunteer Fire Brigades Victoria (VFBV) is not created or established by the CFA Act. According to the VFBV Constitution, available from their website they are an association incorporated under the Associations Incorporation Act 1981 (Vic) (now repealed and replaced by the Associations Incorporation Reform Act 2012 (Vic) but nothing turns on that as the transitional provisions ensure that it retains its incorporated status and the constitution retains its status as the constitution).

To digress for a minute, the CFA Act s 100(2) says ‘A person is not eligible to become an officer or official of Volunteer Fire Brigades Victoria Incorporated unless he or she is a registered volunteer.’  It is unusual for the Parliament to dictate membership qualifications for a non-government legal entity. That the Parliament knows that it is not the author of the VFBV constitution is made clear by s 100(6) which says ‘This section applies despite anything to the contrary in the Associations Incorporation Reform Act 2012 or the rules or constitution of Volunteer Fire Brigades Victoria Incorporated’. It is the case that the Parliament has imposed a qualification requirement on the VFBV executive even though they have not established the organisation.  That is unusual, but not beyond Parliament’s power.

To return to the VFBV Constitution, there is a Statement of Purpose attached to the Constitution. There is no reference to the statement of purpose in the Constitution, that is there is not clause that says words to the effect of ‘The purpose of the Association is set out in Schedule 1’ or the like. Despite that drafting anomaly nothing turns on that for this comment.  The purposes of the VBFV are:

An interesting, and with respect surprising (at least to me) aspect of the Constitution, is that it is the brigades and groups established by the CFA that are members of VFBV, not individual volunteer firefighters (see VFBV Constitution cl 3.1; see also [1] of the Statement of Purpose). This is consistent with provisions that say the Board is made up of 8 members appointed by the Brigades (cl 4.2) not by, say an election where firefighters get to vote. District councils are (cl 8.6), inter alia, to ‘Provide a forum for affiliated brigades to express volunteer concerns/views’ and to ‘Help brigades resolve matters of concern at a local level’. There is no process in the constitution for individual firefighters to raise issues other than via their brigade delegates; and no provision in the constitution for individuals to seek or receive assistance.

The VFBV does not represent firefighters, it represents brigades. How the brigade members give instructions to the VFBV or direct their brigade on what matters to raise is not spelled out in the Constitution and is presumably a matter for brigades to determine according to their local circumstances. But given Brigades are established by, and subject to direction from the CFA there may be cases where a firefighter’s interests are not the same as the ‘brigades’.

I note that the Rural Fire Brigades Association Queensland (RFBAQ), like the VFBV has ‘all registered Rural Fire Brigades in Queensland’ as members (RFBAQ Constitution cl 5). The NSW Rural Fires Association and the Country Fire Service Volunteers Association in South Australia, on the other hand, have individual firefighters as members (RFSA Constitution cl 2; CFSVA Constitution cl 5.1).

Discussion

To return to the question, s 100 of the CFA sets out the purpose of the VFBV in relation to the Act.  To repeat the section, it says (emphasis added):

The role of Volunteer Fire Brigades Victoria Incorporated in relation to this Act is to enable members of brigades (other than industry brigades) to consider and bring to the notice of the Authority all matters affecting their welfare and efficiency (other than questions of discipline and promotion).

Issues of disciplinary proceedings are dealt with in the Country Fire Authority Regulations 2014 (Vic).  As would be expected there are provisions about how complaints are received, investigated and finalised. Where a firefighter has been charged with a disciplinary offence the matter is to be determined at a hearing. At that hearing (r 18):

… the person charged may be—

(a) self-represented; or

(b) represented by another person.

Where a person is facing any of life’s troubles, including disciplinary hearings in the CFA he or she can and should be able to turn to any person they like for support, advice and counsel. A CFA volunteer may turn to a person who is an officer in the VFBV.

A person may want to write to the CFA or a relevant CFA officer to make submissions to try and stop a charge being presented or to draw to the CFA concerns that they may have of that process. They can and should be able to write that letter themselves, write it with assistance, or ask a trusted person, who may nor may not be an officer of the VFBV to write it for them.

When it comes to a formal hearing they can and should be able to be assisted, or represented by a person who may or may not be an officer of the VFBV.

The critical issue in all of these paragraphs is that the person’s status as an officer of the VFBV is incidental or even irrelevant. As soon as the person says “I’m making this submission as President/Board Member/Other officer of or on behalf of the VFBV” then I think the issue changes.

First s 100(1) says that VFBV may ‘bring to the notice of the Authority all matters affecting … [the] welfare and efficiency’ of ‘members of brigades’. If one is arguing that a member is not guilty of an offence charged, or that the penalty should be reduced due to mitigating factors, then the VFBV is bringing matters to the notice of the authority that affect the welfare and efficiency of that member but addressing the authority on matters of discipline is specifically excluded. Even if the VFBV wants to address disciplinary issues more broadly – eg the way the CFA is managing discipline in this area, or across Victoria, that is also excluded from the VFBV mandate.

On top of that there is nothing in the purposes of the VFBV to say that advocating for individuals is its role. As noted the members of the VFBV are brigades, not the individual firefighters. With no stated purpose and noting that the member subject to disciplinary proceedings is not a member of the VFBV, then it would appear to me that the VFBV acting as an advocate for a firefighter would be ultra vires (ie beyond power).

Conclusion

Reading both the VFBV Constitution and s 100 it appears that the VFBV is there to represent the interests of volunteers at a very broad level. It takes volunteer interests as communicated to it via brigades to the CFA. Section 100 specifically excludes issues of discipline from the VFBV mandate and the constitution and purposes in no way give the VFBV a role in advocating for individual firefighters.

I would agree that taken together, cl 100 of the Act along with the VFBV constitution makes it clear that it is not the role or purpose of the VFBV to provide ‘advocacy for volunteers with disciplinary matters’. To do so would be ultra vires and could put the VFBV in conflict with its members ie the Brigades, including the brigade of which the person is a member.

If a person who happens to be an officer with the VFBV wants to assist a friend and colleague that is another matter, but it would appear to me to be inappropriate to do so with VFBV resources or in the name of the VFBV.

Today’s correspondent refers me to

… issues of restraint by US police. One high profile case involves Elijah McLean who was restrained by police and sedated by paramedics with ketamine. Regardless of the dosage of ketamine, it raises an issue of paramedics sedating patients on the advice or request of police. In this case the police had been there first and had apparently painted a picture of Mr. McLean as being out of control and unable to be calmed. Following the sedation by the paramedics Mr. McLean has a cardiac event several minutes later and did not recover.

Police requesting sedation by paramedics is a common occurrence in many jurisdictions. This article: https://www.thecut.com/2020/06/elijah-mcclain-injected-with-ketamine.html  suggests it is too common in the US and suggests that paramedics, either knowingly or unknowingly are being used to transfer liability from police in the event of a poor outcome. While this article is commentary, is raises the issue of the decision making of paramedics in deciding to chemically restrain someone and the liability that creates for them. This article suggests that in the US paramedics are sometimes put in precarious ethical positions such as police demanding sedation or indicating it is the alternative to another non-lethal restraint such as a TASER.

While it is not suggested that this same dynamic between police and paramedics occurs in Australia regarding patient sedation, some of the same issues may arise. Could you comment on shared liability for patient outcomes in such situations requiring restraint in police custody. This is especially in light and the level of information paramedics have to make complex sedation decisions often in time-sensitive or dynamic environments.

Whilst I can understand that applying the answer, given the often close working relationship between police and jurisdictional ambulance staff, may be difficult, I think the legal answer is clear.

Paramedics are health professionals.  Every aspect of their job is to provide health care. The Paramedicine Board’s Code of Conduct for Paramedics 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.

All of that remains true whether the person is under arrest or not. A person who is under arrest can still consent, or refuse consent to medical treatment. Providing treatment without the patient’s consent is a battery, even if police ask the paramedics to provide the treatment.  (Noting that the situation may be different for prisoners under sentence see for example Crimes (Administration of Sentences) Act 1999 (NSW) s 73).

If the person is unable to consent that is they are unconscious, or so mentally ill or so intoxicated that they cannot understand the advice they are given and make a decision, then treatment that is clinically indicated in their best interests can be given (The doctrine of necessity – Explained (January 31, 2017)).  That doctrine does not justify treatment that is in the best interests of the arresting police or treatment that is not clinically indicated by the patient’s medical needs.

A paramedic administering any treatment without first assessing the patient and making his or her own assessment of the patient’s medical condition and the treatment required for that condition would be abrogating his or her professional responsibility and failing to act as a health professional.

Police don’t get to request or direct the type of treatment that paramedics give. They can request paramedic assistance if they think a person in custody needs health care. They don’t get to say what that health care will be so ‘Police requesting sedation by paramedics’ should be ignored. If the paramedic does not think sedation is clinically indicated, they should not administer it. If police demand ‘sedation or indicat[e] it is the alternative to another non-lethal restraint such as a TASER’ and a paramedic does not think sedation is clinically indicated he or she should say so and leave it to the police to decide if they believe they have the right to use alternative force. Weaponizing medical care, in effect giving police a weapon that they do not themselves have, should not be the role of paramedics.

I cannot see there is any shared responsibility or liability. Each is liable for the decisions they make. If police use force, whether a baton, capsicum spray, a TASER or a firearm they have to account for that decision and are (or we hope they are) accountable to law for that decision. They are entitled to use ‘reasonable’ force in arrest and ‘reasonable force’ if they believe their lives or the lives of others are in danger.

Paramedics are health professionals. They are expected to provide health care. That may involve advocating for patients (including those under arrest) eg by telling police to get off them and stop choking them; if they believe the patient needs transport to hospital they should say so, if they don’t think a patient’s condition warrants a particular treatment they should not give it. If they give treatment that is not indicated by the patient’s clinical position and consent (where the patient is competent to consent) then they can be liable for assault and/or professional misconduct. If they are of the view that the treatment (in this case sedation) is clinically indicated then they should give it and transport the patient to hospital. If they are aware that the patient/prisoner has been subject to violence that should affect their decision making where it is clinically relevant.

Conclusion

Paramedics are health clinicians. Every decision they make with respect to the treatment of a patient should be guided by that role and the ethics that inform health professional practice. They are not there to provide an extra weapon on the police arsenal. A police request to sedate a prisoner is an irrelevant consideration in a paramedic’s determination of treatment that should be administered.

Today’s correspondent asks:

Did you do a post by chance I might have missed on using ADF as guards in quarantine hotels and their powers? With the angst among public posters and commenters about how they should have been used to guard quarantine hotels as in NSW, it would be helpful to have the insight.

No I haven’t posted on this; but I can.

The Australian Defence Force can provide assistance to the Civil Authorities or Assistance to the Civil Community (DACC) (see The Australian Defence Force – Defence Aid to the Civil Community (DACC) and Defence Force Aid to the Civil Authorities (DFACA) (October 21, 2013)).

Defence Aid to the Civil Authorities is where the ADF deploys onto the Australian streets armed or at least with the expectation that they may use force. This is governed by the Defence Act 1903 (Cth) and the Australian Constitution.

The Constitution provides that the Commonwealth may make laws with respect to “the naval and military defence of the Commonwealth and of the several States, and the control of the forces to execute and maintain the laws of the Commonwealth” (s 51(vi)). Further “The Commonwealth shall protect every State against invasion and, on the application of the Executive Government of the State, against domestic violence” (s 119).

The ADF may be used to protect Commonwealth interests and, when requested, to assist the States to quell ‘domestic violence’ (Defence Act 1903 (Cth) Part IIIAAA). Section 51B says that the ADF may be used to protect a State against domestic violence if that violence is occurring or likely to occur and the is unlikely to protect itself.

To ‘call out the troops’ various steps are required.  Section 30 of the Defence Act provides a simplified guide to the process. It says:

The Defence Force can be called out under a call out order made under this Part. A call out order is made by the Governor-General if the Prime Minister, the Minister and the Attorney-General (who are called the authorising Ministers) are satisfied of various matters.

There are 2 general kinds of call out orders: Commonwealth interests orders and State protection orders. …

Under a Commonwealth interests order, the Defence Force is called out to protect Commonwealth interests in Australia or the Australian offshore area. The order might apply in a State or Territory, or in the Australian offshore area, or in more than one of those places. Each State or self-governing Territory in which domestic violence is occurring, or is likely to occur, must generally be consulted before the Governor-General makes a Commonwealth interests order.

A State or self-governing Territory can apply for a State protection order to protect the State or Territory from domestic violence.

Members of the Defence Force can exercise certain powers if the Defence Force is called out under a call out order. There are 3 categories of powers:

• powers that generally can be exercised only if authorised by an authorising Minister; and
• powers that can be exercised in an area that has been declared by the authorising Ministers; and
• powers for protecting infrastructure that has been declared by the authorising Ministers…

We saw the ADF ‘called up’ during the 2019-2020 bushfires crisis. We can see what a call up (as opposed to a ‘call out’ order looks like – see Calling out the troops (January 5, 2020). To the best of my knowledge there has been no formal order such as the one we saw in January.  Further, the use of the ADF in hotel quarantine is not protecting the states from domestic violence; it is therefore not an example of a state protection order. Nor is there ‘domestic violence that would, or would be likely to, affect Commonwealth interests is occurring or is likely to occur in Australia’ (s 33) so this is not a Commonwealth interests orders. In short the ADF has not been called out under Part IIIA and is not providing Defence Aid to the Civil Authorities.

This must, therefore, be an example of Defence Aid to the Civil Community (DACC).  DACC is not provided for in the Defence Act, rather it is governed by the DACC Manual. I would infer that the current use of the ADF is either DACC category 4 or 6 that is:

Category 4—significant non-emergency assistance provided to other Government departments or authorities, to Local, State or Territory Government or other authorities or organisations, commercial enterprises, not-for-profit organisations, individuals or bodies in the general community (DACC 4).

Category 6—law enforcement non-emergency assistance to civil authorities in the performance of law enforcement related support. As is the case with all DACC categories, there must be no likelihood that Defence personnel will be required to use force (DACC 6).

Under those categories the members of the ADF have no particular power. They cannot use force nor compel compliance with directives. They are in the same position that the SES or a private security guard would be in if they were asked to help maintain the quarantine. They are a well disciplined, self-sustaining force that are willing to turn their minds to any task they are given. That means they are an effective labour force but as guards at hotels, the most they could do is ask (with some moral authority) people not to leave and report them to police if they do. It’s no offence to disobey the soldier but it may be an offence under relevant public health orders and the Biosecurity Act 2015 (Cth) to leave the hotel or otherwise not comply with the directions that have been given.

They have a power of arrest, just as any citizen does, but it would be ‘brave’ (as Jim Hacker might say in ‘Yes, Minister’ for those old enough to remember) for an ADF member to try to arrest someone who failed to comply with a requirement under a public health direction.

Conclusion

the ADF provide a very effective surge capacity to help maintain quarantine at the various hotels, but they have no particular legal authority or power.

I have previously reported on the story of the Chapmans and the moves by Victoria SES to cancel their membership and their efforts to resist that move – see Natural Justice and the SES (September 28, 2015). In that post I reported on the outcome of an application to the Victorian Civil and Administrative Tribunal (VCAT) seeking a review of a decision to suspend the membership of the Chapmans.  5 years later and the matter may have been finally resolved with the decision in Chapman v Victoria State Emergency Service Authority (Review and Regulation) [2020] VCAT 722.

This decision was about an application by the Chapmans to recover their costs from the SES but it tells us much about what has happened since September 2015.  We are told that in October 2015 formal disciplinary proceedings were commenced. There were delays in hearing the allegations whilst the Chapmans took the matter to the Supreme Court of Victoria – Chapman v Chief Officer of the Victoria State Emergency Service [2017] VSC 547 (13 September 2017).  That case had not previously come to my attention, so I will digress here to consider what the Supreme Court decided.

Chapman v Chief Officer of the Victoria State Emergency Service [2017] VSC 547

The Supreme Court outlined the story of the Chapmans’ complaints about the leadership of the SES unit and the complaints by others regarding the behaviour of the Chapmans’ along with details of meetings and investigations and escalation of the issue within the SES. An independent consulting firm was asked to report on the matter and the impact it was having on the ability of the SES to provide a safe working environment (‘the Bowe Report’). This report was delivered on 12 December 2014. At [23]-[26] and [29] Emerton J said:

The Bowe Report records agreement among the individuals interviewed that ‘tension and disharmony within the Unit [had] reached unsustainable and unhealthy levels’. The volume and nature of the verbal and written complaints and counter-complaints was said to have impacted on the health and wellbeing of every member of the Unit. According to the Bowe Report, although there were numerous points of disagreement, all of those interviewed agreed that the Unit was divided into two groups, being ‘the Chapmans and their supporters’ and ‘the rest of the Unit’. The ‘Chapman group’ was identified as Ray, Paul and Daniel Chapman and three other individuals, including Mr Brendan Bennett. The other group was said to comprise the remaining approximately 50 members of the Unit. According to the Bowe Report, the Chapmans quite openly expressed their dissatisfaction with the existing Unit leadership team and made it known that they believed Ray Chapman would be a more appropriate Unit controller.

The Bowe Report found that the manner in which the Chapmans, and later their three supporters, chose to raise their concerns about the decisions and overall performance of the Unit leadership had created tension between them and the leadership and between them and other members of the Unit. Their conduct was increasingly perceived as disrespectful and as being motivated by an intention to discredit and drive out the existing leadership team. The Bowe report continued:

… It has become an unsatisfactory and unhealthy environment for both sides. For an organisation that depends on the goodwill of volunteers to turn up and collaborate to carry out the work in a highly professional and safe manner, it is not sustainable for this unhealthy, disrespectful and combative environment to continue.

… As a result, the Bowe Report identified two options: first, the Chapman group changing their approach; secondly, ‘separating’ the Chapman group from the Unit if they were unwilling or unable to make such a change. However, as the disrespect and disconnection had developed over a number of years and become entrenched, the second option was more likely to be ‘the appropriate and necessary way to eliminate the health risk in the short term and over the longer term’. The Bowe Report therefore recommended that VICSES management consider communicating with the Chapmans to outline a number of the findings and the position of the organisation, giving the Chapmans time to consider their options and whether it would be in their own best interests, and in the best interests of others, for the Chapmans to find another organisation in which to pursue their community service goals…

It is evident from the events that followed that VICSES management accepted the recommendation that the Chapmans be asked to step away from the Unit, at least temporarily, but not to use disciplinary action at the outset.

The events that followed were the directions that were the subject of my earlier post and the decision in Chapman v Victoria State Emergency Service (Review and Regulation) [2015] VCAT 1402 (see [53]).  As part of those proceedings there was a compulsory conference to try and find agreement between the parties. At [59]-[63] Emerton J said:

What took place at the VCAT compulsory conference is hotly disputed.

Ray Chapman gave evidence that as part of the compulsory conference process, Ms Bahen [SES Director of Human Resources] ordered the Chapmans to sign the draft Deed. According to Mr Chapman, Ms Bahen said that if the Chapmans signed the Deed, they could return to the Unit within a week or so and all would be forgiven and forgotten. Their ranks would be restored and life would just go on as normal. However, if they did not sign the Deed, Ms Bahen would procure charges against them and make the charges public. According to Mr Chapman, Ms Bahen also said that if they refused to sign the Deed, they would be charged with refusing to follow a lawful command.

Mr Chapman’s evidence that Ms Bahen required them to sign the draft Deed under pain of being charged with disciplinary offences, including being charged with refusing to obey a lawful command, was supported by the evidence given by Paul and Daniel Chapman and the evidence of Mr Bennett.

However, in their evidence, Ms Bahen and Ms Main denied that any such threats or demands were made. Their evidence was to the effect that the applicants were told that if the VCAT proceeding did not settle, then the next step would be the making of a formal complaint. This would involve the commencement of the disciplinary process under the Regulations.

The Chapmans declined to settle the VCAT proceeding. They said they were not prepared to sign a document containing the release.

(It should be noted that at [220] Her Honour says ‘I do not accept the Chapmans’ version of what took place at the VCAT compulsory conference on 3 June 2015’).

On 31 July 2015 the Chief Officer advised that complaints had been made about the Chapmans and these would now be dealt with under the Victoria State Emergency Service Regulations 2006 (Vic) (now repealed). Again an independent organisation (ZALT) was appointed to investigate the complaints. The consultant wrote to the Chapmans with details of the complaints. The problem was (at [82] and [84]) that the:

… allegations were … not the same as those summarised in the notices of complaint sent to each of the Chapmans on 31 July 2015. The allegations listed in the ZALT letters were apparently taken more directly from the interviews recorded in the attachments to the Bowe Report. Many of the allegations in the ZALT letter do not correspond with the allegations in the notices of complaint….

On 7 September 2015, the Chapmans collectively wrote a long letter to the Chief Officer in relation to the allegations in the ZALT letter. They pointed out that four different versions of the allegations against them had now been provided and that there was a ‘lack of clarity and consistency’ in regard to the allegations. They further contended that the allegations set out in the ZALT letters lacked sufficient detail to enable them to proffer a meaningful response.

Emerton J continued (at [90] and [93]):

On 9 October 2015, the Chief Officer wrote to Ray Chapman, advising him that in accordance with reg. 12(1)(b), the Chief Officer had decided to charge him in relation to the complaint. The letter stated that, for the purpose of reg. 13(a), the full particulars of the charges were set out in an annexure…

The disputation between the Chapmans and VICSES has continued since the Charges were brought. Most of the disputation has concerned the particularisation of the Charges and the adequacy of discovery…

The Chapmans went to the Supreme Court asking, amongst other things, that ‘the Court … set aside the decisions by the Chief Officer to suspend and charge them pursuant to the Regulations and [issue]… an injunction restraining the Chief Officer from taking any steps or proceedings on the basis of the purported suspension and charges’ ([94]).

In making her decision Emerton J reminded everyone (at [113])

Not every step taken by VICSES to manage the Chapmans involves a decision that is reviewable by the Court on administrative law grounds. The Court has no jurisdiction to review an administrative decision just because it is unfair or unjust; the decision must be unlawful. The relevant statutory framework for the decision-making is vital and must be steadily borne in mind. Otherwise there is a risk of losing sight of the limited scope and purpose of any proceeding for judicial review of administrative action.

It can be noted that the Chapmans complained about the SES not following the rules and procedures to the letter, of variations in the allegations making it impossible to respond etc.  Of the Chapmans, in court, Emerton J said (at [115]):

More worryingly, the Chapmans have deployed a scattergun approach to challenging the actions of VICSES and have made opening and closing submissions that raise a plethora of grounds or allegations that are not included in the Further Amended Originating Motion. The submissions are prolix, they generate more heat than light, and they contain numerous propositions of fact and law that are not sustainable.

The Court tried to come to grips with the complaint and the remedy sought. At [117]-[118] Emerton J said:

The principal relief sought by the Chapmans is that the decision of the Chief Officer to ‘suspend and charge’ them be quashed.

In order for certiorari [the formal name of the order] to issue to quash a decision, it must be possible to identify a decision which has discernible or apparent legal effect upon rights, for it is the legal effect of the decision which is quashed…

The problem was that the decision by the Chief Officer did not affect the Chapman’s legal rights.  At [126] Her Honour said:

… there is a real question as to whether the Chief Officer’s decision to bring the Charges is a decision that affected the Chapmans’ legal rights in the relevant way. It is an essentially procedural decision that forms part of a larger decision-making process, which will culminate in the hearing and determination of the Charges. However, as Nettle JA held in Byrnes v Marles, even if certiorari is not available, that may not be the end of the matter: procedural fairness in the form of an opportunity to be heard may need to be afforded if such a requirement is implied in the statute (in this case, the Regulations) governing the decision-making process.

Her Honour then reviewed the regulatory scheme for disciplining members and the processes that the SES had followed. She concluded that the SES had complied with the regulations up until the time that ZALT wrote to the Champans. At [168] Her Honour said:

…the allegations identified for investigation by the ZALT investigator are not coextensive with the allegations detailed in the notice of complaint. The ZALT investigator proposed to investigate a far greater number of allegations than were detailed in the notice of complaint. I have tried to reconcile the matters listed in the notice of complaint with those listed in the ZALT letter. I have concluded that, in substance, the ZALT letter raises a whole new set of allegations.

This means that the notice of complaint did not clearly indicate what was to be investigated. In that sense, the notice of complaint served on Ray[,Paul and Daniel] Chapman was deficient.

At [171]-[172] Her Honour continued:

Failure to comply with a statutory requirement to give a notice does not necessarily result in the invalidity of an administrative decision or action that is predicated on notice having first been given. It will be rare for a failure to give notice to result in a decision being set aside where the relevant information has been conveyed by other means…

… The notice of complaint is important because of what it signals about how other parts of the disciplinary process are to be carried out. The notice of complaint is procedural; a deficient notice of complaint is not, in and of itself, something that gives rise to invalidity.

Her Honour then traced through the history of the proceedings and the correspondence between the parties. She concluded (at [188]-[189]):

… it cannot be said that the Chapmans were denied the opportunity to be heard in the investigation. The Chapmans stridently declined to take the opportunity to be heard by the investigator. Although the allegations in the notice of complaint did not match the allegations listed for investigation in the ZALT letter, the Chapmans were given time to consider the ZALT allegations and to respond to them. It has not been shown that they lost an opportunity to put forward any information or argument relevant to the limited inquiry that was foreshadowed. No practical injustice has been shown.

In my view, the Chapmans were not denied procedural fairness in the investigation and the investigation itself satisfied the requirements in the Regulations, notwithstanding the deficiency in the notices of complaint.

Her Honour also found (at [199]) ‘that none of the grounds challenging the decision to bring the Charges on the basis of non-compliance with the Regulations is made out’ nor (at [205]) was anything ‘unreasonable in the legal sense in the decision taken to suspend the Chapmans’.

Finally, the Chapman’s challenged the decision to lay disciplinary charges on the basis that the decision was ‘made for an improper purpose’ ([206]).  Without repeating all of the findings or the judge’s reasoning, she did conclude (at [235]) that ‘The allegations of improper purpose are not made out.’

As for the purported suspension, the subject of the decision in Chapman v Victoria State Emergency Service (Review and Regulation) [2015] VCAT 1402, Her Honour said (at [259]) ‘I find that the ‘suspension in fact’ was not a disciplinary measure. It did not need to be effected in accordance with the Regulations. I am therefore not persuaded that the ‘suspension in fact’ was unlawful.’

At [269]-[270] Her Honour said:

None of the grounds for review in the Further Amended Originating Motion is made out. Furthermore, there is no basis upon which to make any of the declarations that are sought.

The proceeding will be dismissed.

Further steps

After the application to the Supreme Court was dismissed, the SES could continue with the disciplinary process. To return to the decision of Deputy President Lambrick in VCAT, she said (at [4]):

… on 10 October 2018, the delegate determined that various charges had been substantiated against each applicant. The applicants were appalled and astonished by those findings and declined to make submissions with respect to penalty.

The matter then came to VCAT to seek a review of that decision. Again there were a number of steps where actions were challenged and demands made. Critically at [12] we are told that:

At the directions hearing on 27 June 2019, the second respondent [the Chief Officer Operations of the Victorian State Emergency Service] formally sought leave to amend the charges…

This application was held over and again made when the hearing before VCAT commenced – ‘Unsurprisingly, the applicants opposed the leave application’ ([16]).  Her Honour continued (at [17]-[24]):

After hearing the applicants’ arguments, I did not grant the second respondent leave to amend any of the charges and gave oral reasons for not doing so. I expressed doubt that I had any power under the Regulations to amend the charges. In any event, I considered that the amendments sought by the second respondent would have resulted in the Tribunal dealing with different charges and therefore addressing a substantially different question to that which the first respondent was asked to determine. It is well established that on review this Tribunal must address the same question as the primary decision-maker. The effect of my ruling was that (at least some of) the charges apparently became less tenable/untenable.

… In due course, the parties requested that the matter be listed for a compulsory conference. The compulsory conference took place on 11 September 2019 before another member of the Tribunal.

Following the compulsory conference, on 24 September 2019 the second respondent advised both the applicants and the Tribunal in writing that:

the authority has determined not to oppose the applicants’ review application dated 20 January 2019, i.e. the Authority is not going to seek to prove the charges against the applicants which are the subject of the review application.

The second respondent proposed orders disposing of the matter.

The outcome was that VCAT formally set aside the finding that the charges against the Chapmans had been proved and the decision to cancel their membership of the SES was set aside.

The matter, the subject of this report, was then an application by the Chapman for the payment of their costs and compensation for the events over the last many years. In tribunals like VCAT the general rule is that each party must pay their own costs (see [36]).  This is unlike courts, where the general rule is the loser is ordered to pay at least some of the winner’s costs.

Deputy President Lambrick found that the Act establishing VCAT did not give the Tribunal the power to order costs for events that occurred outside the VCAT hearing.  She did not have the power to make an award for costs incurred in responding to the allegations, during the hearing of the complaint or in the Supreme Court (noting of course that the Chapmans lost in the Supreme Court ).  She said (at [69]) ‘This Tribunal can do nothing in relation to any costs incurred by the applicants before the matter came before this Tribunal.’

Her Honour then had to consider whether she should make an order for costs for proceedings in the Tribunal. She held that she should not.  She said ([78]-[110]):

The applicants did not demonstrate any time whereby the respondent relevantly failed to comply with any order or direction of this Tribunal.

The applicants did not point to any examples of the respondents failing to comply with this Act, the Regulations, the Rules or enabling enactment in the proceeding before this Tribunal for which an award of costs would be appropriate.

[There was no] … attempt by the second respondent to deceive another party or the Tribunal.

Whilst the applicants repeatedly contended that the proceedings were vexatious, there was no evidence before me upon which I could draw this conclusion… The second respondent was successful in its case before the first respondent. It is impossible in these circumstances to find that in defending its position before VCAT it acted vexatiously….

There are a myriad of reasons why this prosecution has taken a long time. I do not however agree that the second respondent prolonged unreasonably or in any way the time taken to complete the proceeding before this Tribunal…

The applicants contend that the charges against them should never have been laid… Once again, much of the emphasis surrounded the conduct of the hearing before the first respondent.

The first respondent found the charges proved.

I agree with the submissions of the second respondent that following my ruling, it did not persist before this Tribunal with charges that had no tenable basis.

The criticism advanced by the applicants would have been more arguable had the respondents determined, after my ruling, to nevertheless contest the application, knowing that the charges were no longer tenable.

… action by the second respondent to enforce a costs order arising from the Supreme Court judicial review proceeding at a time when the parties were engaged in a compulsory conference before this Tribunal does not constitute misconduct or bad faith…

The Tribunal declined to make a costs order but did order Victoria SES to reimburse the Chapmans the fees associated with the VCAT hearing in the sum of $2,824.70.

Discussion

From a legal perspective I think all of this shows two things. First I think it is a credit to the judicial arm of government (including VCAT) that the tribunals exist and dispassionately hear and try to apply the law to all manner of arguments. That the tribunals exist is a valuable release. On the other hand, unlimited appeals and the right to challenge each and every decision of each and every decision maker does lead to the appearance that anyone who is willing to keep throwing money and time at a decision they don’t like will eventually triumph. We usually think of big business with deep pockets winning by attrition but it is not so limited. Whether that’s justice or not depends on where you stand in any given matter.

We are not told what amendments the SES wanted to make or why. All we know is that when that application was refused, they did not proceed with the matter. The Chapmans, not surprisingly, were not happy with that outcome. They (at [26]) ‘made it clear that they would have preferred to have had the opportunity to be vindicated at a hearing of the Tribunal rather than simply have the respondents lead no evidence.’  As it is no-one has been vindicated.

Every step of this process, at least as reported in the Courts and Tribunals, has turned on process and procedure rather than the substance of the allegations. It would appear that, apart from the decision to refuse leave to amend the charges made by Deputy President Lambrick, the Chapmans have had no judicial determination in their favour even if, at the end of the day, one has to conclude that the charges as formulated were defective. We simply don’t know however what behaviour occurred, or did not occur. This is an unsatisfactory outcome to a very long process.

Conclusion

This is a sad and sordid tale for an organisation that depends on volunteers.  I have not repeated the details of the complaints against the Chapmans but they are set out in the Supreme Court judgement at [166]-[168]. If even some were true it must have made attendance at that SES unit very unpleasant.

I said at the start that ‘the matter may have been finally resolved’ but actually one would have no reason to believe that. Given the history of this matter and the ‘depth of ill-will, distrust and disrespect that had developed’ [Chapman v Chief Officer of the Victoria State Emergency Service [2017] VSC 547, [253]) it is hard to see how this, or any decision will go toward rebuilding the unit.

What I don’t understand is why the Chapmans, or the 50 or so other members in the ‘other group’ would choose to remain either in the SES or in a unit that is so dysfunctional.  Why is membership of the SES so important you would spend years and thousands of dollars fighting to stay when others clearly don’t want you; and why if people are behaving as the Chapmans’ were alleged to have done (acknowledging of course that the allegations have not been proved) would anyone else want to stay? Given the story, as told through judicial decisions, it is beyond me how the members of this unit find the will to turn up for training or to turn out to an emergency.

The time and cost it has taken to come to no real resolution – no-one’s complaints, those made by and those made against the Chapman’s have been satisfactorily resolved. This is a shocking story for Victoria SES and the Victorian community.

Today’s correspondent says:

I was hoping you could clarify some points of concern for me. I have recently come across a post in the … Facebook group discussing pharmaceutical licensing by state governments. This in turn ignited a fierce debate in one of the private chat rooms about state health organisations getting around the TGA rules.

We, as a private provider in NSW have to apply to NSW Health Pharmaceutical unit to obtain a license and permits to purchase, store and administer various medications. I assume this system is very similar in other states. We can only request to have medications on license that have been approved for registration by the federal government’s TGA [Therapeutic Goods Administration].

It is my understanding that state health organisations do not have to abide by this rule and can use certain medications that are not approved by the TGA, intranasal fentanyl for example.

Now that our business is struggling due to CoVID19, I find it especially frustrating that government ambulance services can freely compete with small businesses for the same commercial contracts. In the case of NSW Ambulance for example, they have been given generous exemptions in every aspect of registration and licensing for medication and are also overly represented in the management of various industry groups and regulatory committees.

The questions I bring to you are two different aspects of this.

1. Why are state ambulance services exempted from complying with these rules?
2. What’s the point of rules and regulations if most of the industry does not have to comply with them?
3. How can a publicly funded service, which enjoys these generous exemptions in various fields, bid for the same tenders and take commercial work away from small businesses? Is that not rather unethical?

We know that everyone needs an authority to possess, supply and/or administer a scheduled drug (The last word on scheduled drugs? (September 29, 2019)) and yes that scheme is consistent across Australia.

The Therapeutic Goods Act 1989 (Cth) makes provisions for how drugs are approved and listed for use.  Drugs may be prescribed for ‘off label’ use. The TGA says:

Off-label prescribing refers to the use of a registered medicine outside of the indications, dose, route of administration or patient group set out in the TGA-approved Product Information (PI).

The TGA is responsible for ensuring that medicines available for supply in Australia are safe and fit for their intended purpose. The approved indications, as described in the medicine’s PI, have been evaluated for safety and efficacy by the TGA.

The TGA recognises that off-label prescribing may be clinically appropriate in some circumstances, but recommends that such use only be considered when other options are unavailable, exhausted, not tolerated or unsuitable.

Prescribers should discuss the risks and benefits of the proposed treatment with the patient and/or their carers so that they are capable of providing informed consent.

Additionally, the treatment, including its effectiveness and potential adverse events, should be monitored.

In situations where the PI for a medicine is updated in a way that makes continued use ‘off label’, the patient should be informed so they can participate in the decision regarding treatment options.

Intranasal Fentanyl does not appear to be something out of the ordinary; see

• https://pch.health.wa.gov.au/For-health-professionals/Emergency-Department-Guidelines/Fentanyl-Intranasal
• https://www.rch.org.au/clinicalguide/guideline_index/Intranasal_fentanyl/
• https://www.rch.org.au/uploadedFiles/Main/Content/comfortkids/Intranasal%20fentanyl%20%20Master%20presentation%202016%20PDF.pdf
• https://www.pbs.gov.au/pbs/industry/listing/elements/pbac-meetings/psd/2014-03/fentanyl-nasal-spray

Nor does it appear to be ‘off label’:

• https://www.ebs.tga.gov.au/servlet/xmlmillr6?dbid=ebs/PublicHTML/pdfStore.nsf&docid=01D6D1F2AC7FB1B4CA257B8D00421D17&agid=(PrintDetailsPublic)&actionid=1

The NSW government, along with all Australian governments, has adopted the principles of competitive neutrality.  They say (NSW Policy Statement on the Application of Competitive Neutrality (2002), p. 23):

The objective of competitive neutrality policy is the elimination of resource allocation distortions arising out of the public ownership of entities engaged in significant business activities: Government businesses should not enjoy any net competitive advantage simply as a result of their public sector ownership.

That policy statement sets out general pricing guidelines to ‘ensure that goods and services sold in contestable markets are costed and priced in a competitively neutral manner’ (p. 14).

Discussion

I would start with the proposition that a statement on Facebook, no matter how adamant the writer is, is proof of nothing.   I can see nothing in the Therapeutic Goods Act and its various regulations nor state poisons laws that suggests that state ambulance services enjoy any exception to the rules.

There is however a clear difference between NSW Ambulance and private providers. First NSW Ambulance maintains a monopoly on responding to triple zero emergency calls. Therefore, NSW Ambulance has to have a capacity to respond to emergencies affecting the entire NSW community, people of all ages, of all backgrounds and all manner of emergencies. This may not be true of private providers depending on their area of operations. It may be that NSW Ambulance paramedics have a clinical need for some drugs that other providers do not.

NSW Paramedics can carry any drugs that the Secretary of Health authorises (Poisons and Therapeutic Goods Regulation 2008 (NSW) r 101 (with respect to schedule 8) and Appendix C, cl 7 with respect to schedule 2, 3 and 4 drugs). (Note that the Regulation refers to the Director-General of Health, but that title has been dropped and the relevant office is now the Health Secretary (Statute Law (Miscellaneous Provisions) Act (No 2) 2015 (NSW), Government Sector Employment Act 2013 (NSW) and Health Administration Act 1982 (NSW) s 8).  A private provider also has to have the approval of the Health Secretary  to be authorised to possess, supply or administer a scheduled drug (Poisons and Therapeutic Goods Regulation 2008 (NSW) r 170).  The second major difference between NSW Ambulance and private providers is that the Health Secretary runs and is responsible for NSW Ambulance (Health Services Act 1997 (NSW) s 67A). No doubt that gives the CEO of NSW Ambulance direct access to the Health Secretary and to the relevant head of the pharmaceutical branch of NSW Health so it may be easier for NSW Ambulance to get approvals to allow NSW ambulance paramedics to carry drugs that the CEO has determined would better improve their service. But at the end of the day, everyone needs the Health Secretary’s approval.  There is no exemption for NSW Ambulance.

Conclusion

I was asked:

1. Why are state ambulance services exempted from complying with these rules?
2. What’s the point of rules and regulations if most of the industry does not have to comply with them?
3. How can a publicly funded service, which enjoys these generous exemptions in various fields, bid for the same tenders and take commercial work away from small businesses? Is that not rather unethical?

My answers are:

1. I can see no evidence that state ambulance services are exempted from complying with the rules set by, or under, the Therapeutic Goods Act 1989 (Cth) or state poisons legislation.
2. In light of my answer to question 1, question 2 is irrelevant.
3. State government services are expected to bid for commercial work in a way that is consistent with the competitive neutrality principles that have been adopted by all Australian governments. I cannot say whether NSW Ambulance does that but there are complaint procedures if someone wants to allege that they have failed to do so.

 

 

Today’s question relates to

… Paramedics in NSW [who] are often required to do inter-hospital transfers of patient with intravenous medications from the emergency department ongoing. Many or most of these medications (and the equipment used to infuse these medications) are not in the scope of practice of paramedics in our ambulance service…

My questions are this: what is the medico-legal risk to paramedics if harms come to a patient with one of these infusions in situ? Given that we are not formally trained in any of these medicines … can we get into trouble if something goes wrong during the transfer? Also, is it true that we can take over any medications started in the ED? Does this extend to medical equipment such as ventilators and other machines we are not trained in as well?

I recently transferred a paediatric patient and they asked me to start an infusion during the transfer of a drug that has the potential for serious adverse events. I had no training in this medicine, and I don’t have training in most of the drugs they ask us to infuse during transfer. I felt uncomfortable with this and said so. But if I felt okay with doing this, despite not really knowing this drug well and something went wrong, will the coroner hold me culpable?

Let me again remind people that the coroner cannot hold anyone ‘culpable’. Coroners cannot determine guilt or innocence of a crime; they cannot determine whether there has been negligence or not; they cannot sentence anyone or award compensation. They can make recommendations which, in the context of the question, may be directed to NSW Ambulance or NSW Health with respect to training or the like.  I will not address the question ‘will the coroner hold me culpable?’ further.

It’s true that one needs authority to possess, administer or supply a scheduled drug (The last word on scheduled drugs? (September 29, 2019)).  Paramedics employed by NSW Ambulance can possess, supply and administer those schedule 2, 3, 4 and 8 drugs that they are approved to carry by the Director General (Poisons and Therapeutic Goods Regulation 2008 (NSW) r 101 (with respect to schedule 8) and Appendix C, cl 7 with respect to schedule 2, 3 and 4 drugs).  What we are told however is that the drugs that are in situ or that the paramedic is asked to start are not the normal drugs provided for by NSW Ambulance and we can infer therefore that those clauses don’t apply.

So where is the authority? It’s found in the various provisions of the Poisons and Therapeutic Goods Act 1966 (NSW).  For example s 16 provides that a person must not

… have in his or her possession or attempt to obtain possession of a prescribed restricted substance [ie sch 4] unless:

(d1)     the person is a person who has the care of, or is assisting in the care of, another person (for or to whom the supply of the substance has been authorised by the prescription of a medical practitioner, nurse practitioner, midwife practitioner, optometrist, podiatrist or dentist) and has the  prescribed  restricted substance in his or her possession for the sole purpose of administering, or assisting in the self-administration of, the substance to the other person in accordance with that prescription…

Section 23 says:

Despite any other provision of or made under this or any other Act, a person who has the  care of, or is assisting in the  care of, another person (for or to whom the supply of a drug of addiction [sch 8] has been authorised by the prescription of a medical practitioner, nurse practitioner, midwife practitioner or dentist) is not guilty of an offence in relation to the possession or supply of the drug if the person is in possession of the drug for the sole purpose of administering, or assisting in the self-administration of, the drug to the other person and does so in accordance with that prescription.

If I can get somewhat personal here, I like most people have had family members undergo treatment for cancer. Some of that treatment has been palliative care only. I have been in possession of and administered drugs that I have no qualifications in and in some cases have no idea what the drugs did.  But I did not commit any offence as the drugs were prescribed for those persons and I administered them in accordance with the (verbal) instructions I received from their doctor or nurse.

If paramedics collect a patient and there are ‘infusions in situ’ it is not the paramedics decision as to what drugs are being administered or the route used. Those drugs are prescribed for the patient and to the extent that the paramedic is in possession of the drugs (they are in the ambulance that he or she is in control of) there is no offence.

If a paramedic is asked to start a drug en route there are differences if the patient is being accompanied by a nurse or doctor and they are asking the paramedic to assist versus the paramedic is given the drug and asked to use it en route in particular circumstances such that the paramedic will need to make the call as to whether those circumstances have arisen.  In either case the fact that the drug is not within the paramedic’s scope of practice is irrelevant as they are administering a drug that has been prescribed for that patient.  The latter case may, however, call from some clinical judgement.

The rule is that you are only responsible for the decisions you make and the actions you take (or don’t take).  The decision to infuse the patient prior to transport is not made by the paramedic so he or she cannot be responsible for that decision. He or she can be responsible for the decisions he or she takes en route, so if the patient suffers a cardiac arrest a paramedic can probably infer that this was not the intended outcome from the drug and therefore would be expected to take some action. There may be consequences that are obviously adverse that the paramedic will need to act on. In minor cases that may be no more than noting that the patient developed redness or complained of pain at the site or some such, and report that when delivering the patient to their destination. In more serious cases more intervention may be required. That is not really about the drug but about the symptoms and I have no doubt that a paramedic can contact their comcen for medical advice if it appears that the patient is not responding well to the drug (Inquest into the death of Scott Cayirylys (3 March 2020)).

Where the paramedic is asked to start the drug the critical skill he or she is being asked to exercise is the technical skill – if it’s meant to be IV making sure that the drug does in fact go into a vein and not surrounding muscle etc.

A paramedic as part of the health team should also be willing to question a prescription. If they are asked to administer 30ml of a drug but they understand that this is a massive dose and perhaps the doctor meant 3ml, then they should raise that as that is what any reasonable member of the health care team would do.

The ultimate question will always be ‘was the paramedics’ conduct reasonable in all the circumstances’  and, from a professional discipline, did the paramedic demonstrate skill care and knowledge that could be expected from a paramedic of similar skill and training.  That does not mean you have to know the pharmacology, indications and contra-indications of every drug prescribed by the patient’s treating doctor or nurse practitioner. The paramedic is not responsible for the doctor’s or nurse practitioner’s choice of drug or route of administration.

‘Does this extend to medical equipment such as ventilators and other machines we are not trained in as well?’ Absolutely. In these cases the paramedic is not being asked to exercise clinical skill, if the machine’s there it’s there. If it stops working the paramedic would be expected to realise that and do something – whether that’s call for assistance or start their own protocols for cardiac arrest; but you can only be responsible for what you are responsible for. A paramedic, or a doctor, or a nurse, is not required to guarantee that there will only be good outcomes.

Conclusion

There is no issue in being in possession of and supplying a drug to a patient that has been prescribed for the patient even though the person holding and administering the drug has no formal training in that drug.  The reason for the drugs authorities for paramedics and others is to allow them to carry drugs ‘just in case’ for people not yet identified and where the paramedic has to make the clinical decisions of diagnosis and treatment. That is not the case described by my correspondent.

The question was ‘what is the medico-legal risk to paramedics if harms come to a patient with one of these infusions in situ?’ and the answer is there is none if it’s the drug that causes the harm. If the paramedic recognised or should have recognised that harm was occurring and did nothing that is a different matter.  But if it turns out that the patient cannot tolerate the drug the fact that this becomes apparent in the ambulance and not in the hospital will not make the paramedic liable for that outcome.

 

Today’s question asks:

As committee members of a charitable foundation that provides peer support to individuals with mental health conditions, what, if any, liability exists for (1) individual committee members) or (2) the charitable foundation, if someone (not a committee member) provides peer support under the name of the charity, and the situation ultimately ends negatively. For example, peer support is a attempted but a person dies by suicide. Could the family of the deceased take legal action against the charitable foundation or its committee members?

Once again it is worth remembering that a poor outcome is not proof of negligence. Many people involved in health services, including mental health, try their best but the outcome is not always ideal. A person may be getting help from the best health professional in the business but he or she may still take their own life. That does not prove that there has been inadequate care. We can say that the mere fact that the ‘situation ultimately ends negatively’ would not mean that the ‘family of the deceased [could] take legal action against the charitable foundation or its committee members’.  What is critical is the facts and what happened.

Negligent care

We’ve all heard stories of people being flippant or silly or calling someone’s bluff in these situations. The story of the medical professional who tells the person to cut their wrist along, not across the vein.  Someone who says to someone threatening suicide ‘on go on then, either do it or don’t we haven’t got all day’.  So maybe a person employed or volunteering with this charity says something that drives a person to suicide – they add the straw that breaks the camel’s back (so to speak). That may be negligent and unprofessional and that may allow someone to sue. The question is always whether such conduct was, or is ever reasonable, and whether it was that conduct that ’caused’ the person to take their own life and both of those points would require expert mental health opinions.

Failure to warn

There could be negligence if a person presented in crisis and the peer support worker failed to recognise that crisis and act upon it, eg if the person was threatening suicide then it may be negligent not to call an ambulance, or police, or the person’s health practitioner or other support person. There may be liability if the person threatens to harm someone else and the peer support worker does not act on that eg if the person indicates he or she is going to go home and kill their family and then themselves (Tarasoff v. Regents of the University of California, 17 Cal. 3d 425, 551 P.2d 334, 131 Cal. Rptr. 14 (Cal. 1976)).

In Australia, the position is not clear. In Hunter Area Health Service v Presland [2005] NSWCA 33 and Hunter and New England Local Health District v McKenna [2014] HCA 44 it was held that the defendant did not owe a duty of care to detain a patient who killed someone when released. In Presland it was the patient who sued for the trauma caused to him when he killed his brother’s fiancé whilst suffering a mental illness; in McKenna it was the family of the deceased. In both cases the plaintiffs alleged the defendant was negligent in not continuing the patient’s involuntary detention under Mental Health legislation. Those cases turned on the wording of the Act and the principles that limit the use of involuntary detention to a last resort. Doctor’s may not be willing to apply the principals of the Act if they could be liable for the actions of a patient once released.

In Stuart v Kirkland-Veenstra [2009] HCA 15 police were not liable for the death of Mr Veenstra after they found him in a car with a pipe from the exhaust into the vehicle. They formed the view that Mr Veenstra was not displaying signs of mental illness and whilst he may have been contemplating suicide, he had not attempted suicide as the vehicle’s engine was not on and had not been on – the bonnet was cold to touch. The police determined, and the High Court agreed, that the conditions set out in the Mental Health Act 1986 (Vic) s 10 (now repealed) that provided for police detention were not established and therefore the police had not power to detain. Absent a power to detain they could not stop Mr Veenstra from going home and later, taking his own life.

A peer support person cannot involuntary detain a person and is not, I infer, a mental health professional so their capacity to diagnose a mental illness, or to know what to do about it is limited. I assume however they receive some training and by taking on the role they must owe a duty of care, within the limits of their role, to the people they are supporting. That duty must be consistent with other statutory obligations including the privacy principles. There is no breach of privacy to release information that is otherwise confidential where that is required to prevent an imminent risk of harm (Privacy Act 1988 (Cth) s 16A – personal information can be released where ‘the entity reasonably believes that the … disclosure is necessary to lessen or prevent a serious threat to the life, health or safety of any individual, or to public health or safety’).

Even if there is no general duty to rescue (Stuart v Kirkland-Veenstra [2009] HCA 15) and whilst each case would turn on its own facts, I can imagine that a peer support person would, in some circumstances, have a duty to warn police, or the person’s treating health professional, or the person’s next of kin, if there are genuine concerns for the person’s, or another person’s welfare.  So if a person said ‘I’m going to kill myself’ and the peer support person believed that this was a statement of their actual intention, then I think it would at least be arguable that there was a duty to take some action such as calling police, a treating practitioner, a family member, or at least escalating the matter within the foundation for someone else to take the necessary action.

Committee members

Would action lie against committee members? That depends on how the charity is structured. If it is unincorporated then it has no legal standing so the only people that can be sued are the directors. If it is an incorporated association then it is a legal person separate from the directors and can sue and be sued in its own name.  That is the whole point of incorporation. The Directors of BHP are not personally liable for the debts of BHP and same with a local incorporated association and if someone got hit by a car owned by BHP and driven by a BHP employee, it would be BHP and not the chair of the BHP Board that would be liable.

Where an association is incorporated the directors have a duty to ensure that the organisation is solvent that is it can pay its debts. They also have duties under Work Health and Safety legislation to manage the association so that it does not pose a risk to workers and others. So a director who informs him or herself of the business and as part of the committee decision making takes reasonable steps to ensure that there is proper training in place and that the volunteers and staff are reasonably managed (without being supervised every minute) will not be personally liable even if a staff member or volunteer is negligent. The vicarious liability belongs to the association, so the director’s duty is to ensure there is proper insurance and management in place.

Conclusion

The short answer is therefore that the family of a deceased person could take legal action against the charitable foundation if there is evidence that the person providing the peer support was negligent in his or her approach – that they failed to provide the support in accordance with the foundation’s training and procedures and/or that the foundation’s training and procedures did not reflect good mental health practice within the limits of the service provided. I can also envisage, though it’s not certain, that there could be negligence if the person communicated to the peer support person that they intended to hurt themselves, or others, and the peer support worker took no steps to seek further assistance or to warn others if they were in danger.

Assuming the foundation is incorporated, committee members will only be liable for their management decisions. They are not personally liable for the negligence of their staff or volunteers. The whole point of incorporation is to create a legal entity separate from the staff, volunteers and directors and it is the legal entity that can sue – and be sued.

 

Today’s question is not really an emergency law question even if the employee is looking to join, or rejoin, one of the emergency services. IT’s an employment law question so somewhat out of my scope but I’ll give some brief thoughts. The question is:

What is the legal status of an organisation, such as [a non-government emergency service] creating a blacklist of ex-employees or failing to re employ ex-employees, is this discrimination? Is an organisation required to indicate why they consistently fail to shortlist or employ people despite meeting selection criteria and qualifications for a position advertised?

To discriminate is to make a choice – it is ‘recognition and understanding of the difference between one thing and another’. Employers discriminate between candidates every time they create a merit list of potential employees and some are ranked lower than others and some are considered ‘not appointable’.  Discrimination per se is not illegal. Discrimination, making a choice, based on some irrelevant grounds is.  Those grounds, under Commonwealth law, are: race, sex, disability and age (see Racial Discrimination Act 1975 (Cth); Sex Discrimination Act 1984 (Cth); Disability Discrimination Act 1992 (Cth); and Age Discrimination Act 2006 (Cth)).

These grounds, and others, are also reflected in state and territory legislation: Discrimination Act 1991 (ACT) (which includes a prohibition on discrimination on the grounds of ’employment status’); Anti-Discrimination Act 1977 (NSW); Anti-Discrimination Act 1992 (NT); Anti-Discrimination Act 1991 (Qld); Equal Opportunity Act 1984 (SA); Anti-Discrimination Act 1998 (Tas); Equal Opportunity Act 1984 (WA).

One would need to look at those state and territory Acts in detail to see if one could frame an argument, but I wouldn’t be confident that is going to work. Employers have to discriminate and the fact that a person has proved themselves as ‘not a good fit’ is surely something that cannot be ignored. If it had to be ignored, a person could be sacked, resign in a huff or disgrace on Friday, and reapply for their job on Monday; but no-one could seriously argue that their past behaviour had to be ignored.

Some legislation such as the Human Rights Act 2004 (ACT) provides for a ‘right to work’. It says (s 27B(1)) that ‘Everyone has the right to work, including the right to choose their occupation or profession freely. The practice of a trade, occupation or profession may be regulated by law’.  But a person’s right to work in their chosen trade or occupation does not give rise to an obligation in someone else to employ them.

In thinking of this answer I looked a number of websites

• HR Advance; Recruitment: Summary for Employers
• Australian Public Service Commission Recruitment: Guidelines
• Personnel Today; How Do Recruiters Choose the Best Candidates?
• Fair Work Ombudsman; A guide to hiring new employees

None of those suggest a legal obligation against identifying that someone who used to work in a business should not work there again for whatever reason. And of course, a candidate may think they are perfect for the job with skills ‘meeting selection criteria and qualifications for a position advertised’ but it doesn’t mean the recruiter’s see their CV, or their application, in the same way.

Conclusion

This question is not an emergency law question. It’s an employment question. The fact that the employer is a private provider of emergency services does not change that fact. I answered it out of courtesy and because writing to explain why I couldn’t answer it took as much work as writing this answer. For a definitive answer however the question has to be directed to an employment lawyer but from what I have been able to find I would suggest that, at least in the private sector an employer is entitled to employ whoever it thinks is the best candidate provided they do not discriminate on prohibited grounds.

Discriminating on the basis that the person is on ‘a blacklist of ex-employees’ or is a former employee would not appear to be such discrimination and would not, therefore, be unlawful.  Further I can see no legal obligation that requires a potential employer to ‘indicate why they consistently fail to shortlist or employ people despite meeting selection criteria and qualifications for a position advertised’.

Today’s question came as a comment on an earlier post – NT Paramedics and the mentally ill (February 2, 2017).  The comment/question is:

It has been explained to me (as a NT Practitioner) that a Paramedic working in the NT legally has the ability to detain and section a patient. However [St John Ambulance Australia (NT)] SJANT policy for detaining does not exist nor does any formal section documentation and as such this requires [Northern Territory] police [NTPOL] attendance to detain the patient for transport to hospital as an involuntary patient. Hearsay being that SJANT does not wish to be involved in the sectioning of patients despite having policies for the restraint and sedation of involuntary patients.

In the unlikely event that NTPOL is unavailable and an involuntary patient was transported in accordance with sedation and restrain policies without formal documentation of the section order, how would this fall?

As a policy does not exist to say not to section a patient would the paramedics involved still be liable for violating company policy and such be up for dismissal? Would they still be protected under the legislation if the patient were to lodge a case in court or the patient deteriorated, and the event became a coronial matter?

Let me first put aside one issue.  One doesn’t get ‘protected’ if an event becomes a coronial matter. Coroners investigate deaths where the identity of the deceased or cause of death is uncertain or where there are matters that warrant investigation to allow the Coroner to make recommendations to avoid future deaths. Coroners do not determine liability for either crime or compensation.

Putting those issues aside we can turn to the question. It is correct that the originally post is old (2017) so we’ll revisit the Mental Health and Related Services Act 1998 (NT).  Section 31 has been amended from the time of that first post and now refers to paramedics rather than ‘ambulance officers’. The current version of the section says:

(1) A paramedic may detain a person being conveyed in an ambulance for up to 6 hours where the paramedic believes, on reasonable grounds, that the person may fulfil the criteria for involuntary admission on the grounds of mental illness or mental disturbance.

(2) When detaining a person under subsection (1), a paramedic may use reasonable measures, including the use of restraints, on the person:

(a) to prevent the person causing serious harm to the person or to someone else; or

(b) to prevent behaviour of the person likely to cause serious harm to the person or to someone else; or

(c) to prevent further physical or mental deterioration of the person; or

(d) to relieve acute symptomatology.

(3) A paramedic who detains a person under subsection (1):

(a) must convey the person to the nearest approved treatment facility or, if that is not practicable, to the nearest hospital, as soon as practicable after the person is detained; and

(b) on arriving at the approved treatment facility or hospital, must complete the approved form and send it to an authorised psychiatric practitioner.

(4) For subsection (3)(b), the form may be sent by fax or email.

The prescribed form is the Form 6 – Ambulance Officer Detention Notification but I am unable to locate that form online (see however, Northern Territory Department of Health Mental Health and Related Services Act 1998, Approved procedure number 28: Transport of Patients (9/03/2020, Version: 7.0)).

In my original post, when the Act referred to an ‘ambulance officer’, I said:

In the absence of any ambulance service legislation, the term ‘ambulance officer’ must be defined. For the purposes of the Mental Health and Related Services Act, ‘ambulance officer’ means any person ‘employed as an ambulance officer, or engaged as a volunteer ambulance officer, by an approved ambulance service at the level of qualified ambulance officer or above’ or a person appointed as an ambulance officer by the Chief Health Officer (ss 4 and 24).

That meant a person’s authority to act under s 31 came with his or her employment or appointment.  Now that the Act refers to a paramedic, it comes with his or her registration as a paramedic (see also s 4, definition of ‘paramedic’).  The power is not now a power vested in St John Ambulance (NT) but a power vested in any and every registered paramedic.

Let me then break down my correspondent’s question. They said:

It has been explained to me (as a NT Practitioner) that a Paramedic working in the NT legally has the ability to detain and section a patient.

We can see that by virtue of s 31 that is correct.

However [St John Ambulance Australia (NT)] SJANT policy for detaining does not exist nor does any formal section documentation

There is ‘formal section documentation’ it is just not a St John document.  It is the Form 6 – Ambulance Officer Detention Notification.

and as such this requires [Northern Territory] police [NTPOL] attendance to detain the patient for transport to hospital as an involuntary patient.

No, it doesn’t and neither did the earlier version of the Act. The power of paramedics to treat their patient is find, relevantly in s 31.  That in no way requires police attendance regardless of whether there is or is not formal documentation.

In the unlikely event that NTPOL is unavailable and an involuntary patient was transported in accordance with sedation and restrain policies without formal documentation of the section order, how would this fall?

Provided the paramedic complies with s 31 then he or she is acting according to law.  Section 31(1) gives the paramedic the power to detain and s 31(2) gives him or her the power to restrain the patient. Section 61 talks of ‘mechanical restraints’ whereas s 31 refers to ‘restraints’.  If it was intended to limit s 31 to ‘mechanical restraints’ the words would have been used so s 31 must have a wider application and would appear to include chemical or pharmaceutical restraints.

There is nothing in s 31 that says NTPOL need to be involved in the decision making, detention or transport of the patient.

As a policy does not exist to say not to section a patient would the paramedics involved still be liable for violating company policy and such be up for dismissal?

It is outside the scope of this blog to go into details of an employment contract with St John (NT) but the obvious answer is that if there is no policy to say ‘don’t act under s 31’ you are not in breach of any policy if you do.

Further an advantage of paramedic registration is that paramedics now have independent duties and authorities.  If a paramedic believed ‘on reasonable grounds, that the person may fulfil the criteria for involuntary admission on the grounds of mental illness or mental disturbance’ and that they needed care, and they complied with the Act and the Mental Health and Related Services Act 1998, Approved procedure number 28: Transport of Patients I cannot see how any employer could take action against them. As a paramedic they have a professional duty to act in their patient’s best interests and provide treatment and care that is available. It is the Northern Territory Parliament that has determined that paramedics can detain and transport a patient. They can do that whether they have their employer’s permission or not. With that authority a paramedic could be negligent or guilty of professional misconduct if he or she refused to treat and transport a patient because their employer had not said they can.

Would they still be protected under the legislation if the patient were to lodge a case in court or the patient deteriorated, and the event became a coronial matter?

Absolutely. The authority under s 31 is given to a paramedic. Provided he or she had the necessary belief and acted reasonably (evidence of which would be compliance with the Mental Health and Related Services Act 1998, Approved procedure number 28: Transport of Patients) then they have complied with the law. The attitude of St John (NT) or NTPOL would be irrelevant.

Today’s correspondent is a

… university student in [New South Wales]…, and I’m currently in the process of joining the local SES unit. However, I had a concern about my university commitments conflicting with this volunteering. As I’m sure you know, when a student is unable to attend a class or assessment due to extenuating circumstances, they can apply for consideration towards their grade or a deferred assessment. The problem is that my university’s ‘Academic Consideration Policy’ does not account for emergency service workers/volunteers (it mentions everything from military service, to work commitments, religious holidays and beyond, but there is no mention of emergency responders). Wanting to reassure myself before becoming a volunteer, I attempted to deal with this by talking to staff at the university to see if a volunteer would actually qualify for consideration. Eventually I was given the rather unconvincing answer of ‘we don’t really know; it would probably come down to the separate judgement of each subject coordinator’. Having met most of my subject coordinators, my consideration being left to their judgement with no guidance from formal policies is a little alarming. Suppose there is a large flood I have to attend during an exam time, or something similar?

Getting to the heart of my question; is a university obligated by law to make allowances for students that are involved in emergency volunteering? I have searched briefly through some legislation myself and found protections in the Fair Work Act for employees that volunteer during emergencies, but I can’t find any mention of students.

The short answer, and pretty much the long answer too, is ‘no, a university is not obligated by law to make allowances for students that are involved in emergency volunteering’.  After that sort of opening statement, I would usually go onto explore ‘the law’ but given there is no legal obligation of that sort, there is no law to cite.  As my correspondent has noted there are protections for employees but not for students.

But I’ll wander out of my ‘lane’ for a minute.  As a university academic I am aware that all universities have a special consideration/deferred assessment policy.  Special consideration has always confused me; I’m never sure what to do with it. A student submits work, you assess it, how can you then give a higher mark on the basis that they may have produced a different result in different circumstances. The transcript does not say ‘Distinction (well not really but it might have been)’.  But there were circumstances were a student did have say Distinction results throughout the semester except for the one affected assessment task and their final result was one mark off a Distinction so you would rely on the ‘special circumstances’ to push them over.  I’m sure most academics would by sympathetic particularly as they live in the same community and will be aware of local floods or significant ones requiring out of area assistance.

Deferred assessment is always problematic.  Students putting off their exams from say November to the ‘special exam period’ in January or February never really do themselves any favours.

With my academic hat on, I’d be confident to say ‘I’m sure your teachers will give whatever lee way they can, but their options are limited and if results are important, put your best foot forward’.

Putting on a different hat, this time as someone who’s been involved, one way or another, with the volunteer emergency services since I was 13 and during my university studies, I don’t think you will find any service, or any unit controller, that doesn’t say ‘put your family, job and studies first’.   The question ‘Suppose there is a large flood I have to attend during an exam time, or something similar?’ demonstrates a misunderstanding of the concept of volunteering.  If there is a large flood, or something similar, a volunteer does not ‘have’ to attend, they attend if they can. And one of the factors that determines whether they can is other commitments such as exams.  University students may not be able to respond during exam time but may have more availability than others during the summer break (if that still exists and the university hasn’t moved to Trimesters).  And units located near universities that draw on students know that and should accommodate that.

I would urge my correspondent to discuss the matter with his or her local unit leader. I’m sure any of them would say ‘if you can’t come due to exams, that’s fine’.

Conclusion

As I said, the last two observations are outside my proper scope of reporting on the law.  The legal answer is ‘a university is not obligated by law to make allowances for students that are involved in emergency volunteering’.

 

Today’s correspondent has referred me to an article in the New York Times headed ‘A Prisoner Who Briefly Died Argues That He’s Served His Life Sentence’.  The gist of the argument is that the prisoner who suffered a cardiac arrest had died, and therefore his sentence had ended, even though he was resuscitated. The article says the argument ‘was not without precedent’ but that doesn’t make it any less axiomatically stupid.  A person standing in a court room is not dead.

My correspondent asks, whether in Australia, a ‘life sentence [would] be over following a period of being clinically dead?’ The answer is categorically ‘no’.

But rather than dismiss it for the stupidity it is (noting it’s the argument that’s stupid, not the correspondent who asked the question given someone has in fact suggested it) we can look at some law.  The law in every Australian state and territory says that death has occurred when there is ‘irreversible cessation of function of the person’s brain’ or ‘irreversible cessation of circulation of blood in the person’s body’ (Transplantation and Anatomy Act 1978 (ACT) s 45; Human Tissue Act 1983 (NSW) s 33; Criminal Code (NT) cl 1; Transplantation and Anatomy Act 1979 (Qld) s 45; Death Definition Act 1983 (SA) s 2; Human Tissue Act 1985 (Tas) s 27A; Human Tissue Act 1982 (Vic) s 41; Interpretation Act 1984 (WA) s 13C).

The key word is ‘irreversible’.  A person who has a cardiac arrest is having a medical emergency. They may or may not be dead. Because we cannot know we encourage people to perform CPR, used AEDs and call for assistance. If the person is resuscitated to return of spontaneous circulation the ‘cessation of circulation of blood in the person’s body’ was not irreversible and they were not dead.  If it was never reversible it may be that CPR and other treatment were administered to a dead person.

Death is a permanent state of affairs. If you are dead you are dead for the rest of time. You cannot be dead and then not dead (Zombie apocalypse excepted). The prisoner in the US was not dead; he was nearly dead. If a prisoner in Australia has a cardiac arrest and is resuscitated, he or she is not dead. They have never been dead; they have been critically unwell. If they are not dead, they are still under sentence and remain under sentence until they are dead.

 

Today’s question comes from ‘a student’ who refers to a ‘situation in emergency unit [that] concerned me’.  If what follows is a real case, then one has to remember that I am speaking generally and not giving legal advice. Every case turns on its facts; all I can do is discuss principles. On the other hand, if this is an assignment question, do make sure due credit is given when writing your answer.  I am asked to:

… assume there was an unconscious patient in emergency that had head injury and is bleeding. The practitioner who was treating him gave him a medicine that he was allergic to, but the practitioner could not have known that as the patient was unconscious. As the result when the patient started to recover, he had gone blind and sues the practitioner. What is the law here and was the doctor negligent?

I’ll assume this happened in NSW. The law is that it is axiomatic that a doctor owes a duty to provide reasonable care to a patient. There is no issue that there is a duty of care. The question is, did this conduct amount to a breach of duty.

That question has to be answered without the benefit of hindsight, that is from the position of the practitioner making the decision. Presumably it is known that some people are allergic to this drug and that a consequence of that can be blindness but that does not mean the drug can never be given. The fact that the patient suffered a loss does not mean that the treatment was negligent.

To determine what is (or was) reasonable a doctor (and ultimately a court) has to weigh up what was the risk of that allergy (in what percentage of the population does it occur and of the allergic population how common is blindness) versus whatever benefit the drug gives. To answer that a doctor would need to be informed by the prescribing protocols for the drug (ie what does the manufacturer say about indications and contra-indications) and by professional opinion.  To cite the law, the Civil Liability Act 2002 (NSW) s 5B(2) says:

In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things:

(a) the probability that the harm would occur if care were not taken,

(b) the likely seriousness of the harm,

(c) the burden of taking precautions to avoid the risk of harm,

(d) the social utility of the activity that creates the risk of harm.

The doctor has to consider those factors ((a)-(d)) before giving the medication. If the risk of blindness due to allergy is very low (eg 1:1 000 000 000) (s 5B(2)(a)) but the drug provides a very important therapeutic benefit, is required urgently and is likely to mean the difference between life and death (s 5B2(d)); there is no other efficacious treatment that can be given whilst inquiries are made about the patient’s history (s 5B(2)(c)) then it may have been reasonable to give the drug even though the risk of blindness was a very serious risk, but so is death (s 5B(b)).

Change the facts and figures: increase the likelihood of harm, decrease the therapeutic benefit, if the medicine was not required urgently or there were other equally efficacious treatments – and the conclusion changes.

We are all aware of the recent protests in Sydney in response to the death of George Floyd in the United States and the tragedy of continuing deaths of aboriginal persons whilst in custody in Australia. (According to The Guardian ‘There have been at least 434 deaths since the Royal Commission into Aboriginal Deaths in Custody ended in 1991’).  The question is: ‘how was this permitted given strict public health orders in New South Wales?’

I have written on challenging COVID restrictions and one might think that someone took the matter to the NSW Supreme Court and argued that the restrictions were unconstitutional because they unnecessarily restricted the exercise of the implied right of free political communication in the Australian constitution or some international treaty. Or perhaps that the Chief Health Officer did not have the power to make the public health orders.  The answer is far less interesting and demonstrates the role of the courts in applying the law.  The answer lies in the Summary Offences Act 1988 (NSW) ss 22-27.

I have previously made the point that under Australian law, as a general rule, a person (or people) can do what they like unless there is a law that says you cannot.  You don’t need permission to walk down the street holding a placard.  You don’t need permission to have a mate join you and you both walk down the street holding placard. Pre COVID you could have 2 mates, 20, 200 or 2000.  But when you get to numbers that size it’s going to cause a problem for others so a group of 2000 may commit offences such as obstructing traffic, some people might be offended, etc.

This is where the Summary Offences Act comes in. A public assembly may be ‘authorised’ (s 23). To get an assembly authorised the organisers have to give notice to the police that provides the details and is on the form required by s 23.  Having received the form the Commissioner of Police can tell the organiser that he or she does not oppose the public assembly in which case it is approved. If the Commissioner does object to the assembly and the notice was given 7 or more days before the assembly, the Commissioner has to ask the Court to prohibit the assembly (s 25). If the notice was given to the Commissioner in less than 7 days before the assembly then if they want to proceed the organisers have to ask the Court to authorise the assembly (s 26).

Section 24 says:

If an authorised public assembly is held substantially in accordance with the particulars furnished with respect to it under section 23 (1) (c) or, if those particulars are amended by agreement between the Commissioner and the organiser, in accordance with those particulars as amended and in accordance with any prescribed requirements, a person is not, by reason of any thing done or omitted to be done by the person for the purpose only of participating in that public assembly, guilty of any offence relating to participating in an unlawful assembly or the obstruction of any person, vehicle or vessel in a public place.

The Appeal judges, in Bassi v Commissioner of Police (NSW) [2020] NSWCA 109, at [12], described the effect of s 24 this way:

… the Summary Offences Act creates a regime whereby a proposed public assembly may secure the status of an “authorised public assembly”. A person who participates in such an assembly, so long as it is conducted substantially in accordance with the previously notified details, will not be guilty of any offence relating to participating in an unlawful assembly or the obstruction of any person, vehicle or vessel in a public place.

So what happened in Sydney?

According to the NSW Court of Appeal the organisers served a notice on the Commissioner on 29 May 2020 regarding a proposed assembly to be held on 6 June 2020.  The original notice said that it was expected that about 50 people would attend but it was soon apparent that the public opinion was such that many more would come. In a meeting between organisers and police, held on 4 June, it was estimated that there would be 5000 people. The details of how the event would be run was negotiated with police.

The Appellant [the event organiser] understood that the Commissioner agreed with this change of proposal and did not oppose the conduct of an assembly in amended form. An email sent by the Police to the Appellant on 4 June 2020 appeared to support this view. On 5 June 2020, however, the Commissioner of Police commenced proceedings to prohibit the conduct of the proposed public assembly.

Before the Supreme Court Fagan J held that the amendments made on 4 June constituted a new notice. Because it was served with less than 7 days’ notice, and the Commissioner objected, it was incumbent upon the organisers to persuade the court to authorise the assembly.  At [34] the Court of Appeal said:

In the circumstances of the case, after earnest and no doubt anxious consideration by reference to the powerful competing considerations … and with proper and genuine consideration of the importance of the purpose and aims of the proposed assembly … the primary judge [ie Fagan J] nevertheless declined to authorise the assembly. In reaching that decision, the primary judge drew on evidence of, amongst others, the Chief Health Officer and Deputy Secretary for Population and Public Health in NSW, Dr Kerry Chant, who had sworn an affidavit that was read in the proceedings at first instance.

The Court of Appeal (Bathurst CJ, Bell P, Leeming JA) unanimously agreed that the trial judge made errors of law, in particular the Court was of the view that the amendments made on 4 June did not constitute a new notice. I have quoted s 24, above, and it refers to circumstances where ‘particulars are amended by agreement between the Commissioner and the organiser’. The Court said (at [17]):

… (iii) the Summary Offences Act expressly contemplates, in s 24, that the particulars of a statutory notice of intention to hold a public assembly may be amended by agreement between the Commissioner and the organiser of the proposed public assembly;

(iv) this reflects the scope for negotiation and co-operation between the Police and the organiser as to the details and proposed manner in which the public assembly is to be conducted;…

The Court of Appeal found that the notice issued on 4 June (and in fact drafted by police on Mr Bassi’s behalf) was an amendment as contemplated by s 24, not a new notice. Because the police had seven days notice it was incumbent on the Commissioner to persuade the court to prohibit the assembly.  It was not incumbent on the organiser to persuade the court to authorise the assembly.

Further the court referred to email correspondence between police and Mr Bassi, in particular an email where the police redrafted the form to match the agreement that had been reached (see [42]). That email was communication to Mr Bassi that the Commissioner did not object to the assembly and was therefore confirmation that the assembly was authorised (s 23(1)(f)).

At [44] the Court said:

Plainly enough, at some point between the sending of this email on 4 June 2020 on which Mr Bassi was entitled in the circumstances to rely upon and 5 June 2020, the Commissioner’s view as to the advisability of the public assembly going ahead changed, and he accordingly and appropriately made an application to this Court. No criticism should be made of that change of stance; we live in challenging and uncertain times where the exigencies of public health are of critical importance and the situation is no doubt extremely fluid. Considerations of public order, or further information becoming known to the Commissioner, may require flexibility of approach.

The Commissioner made an application under s 25 but before the court of appeal that failed for two reasons. The first was that in the Court of Appeal, the Commissioner had argued that the trial judge had refused Mr Bassi’s application under s 26 and there was no appeal from that decision (s 27). It was only when it was clear that the Court did not agree that the lawyers tried to rely on s 25. The court said (at [49]) that this argument was rejected, first because ‘although the matter proceeded with great expedition, any such application should have been flagged at the very outset of the urgent hearing. By the time it was made orally, the public assembly was within approximately 20 minutes of commencing.’

Second there were a number of steps that had to be taken before a s 25 application could be made, and the Commissioner had done none of them so the application ‘would have been futile in circumstances’ ([50]).

Prohibited assembly is a misnomer

Section 25 provides that the Commissioner may make an application to have an assembly prohibited. This is a misnomer.  If an application under s 25 is approved, there is no offence of organising or taking part in the assembly. The only effect of an order under s 25 is that anyone who takes part in the assembly does not enjoy the benefit of s 24; that is they are liable to prosecution for ‘ any offence relating to participating in an unlawful assembly or the obstruction of any person, vehicle or vessel in a public place’ but the order of the court does not, of itself, make the assembly ‘unlawful’.  That would have to be found elsewhere.

An assembly is either authorised (ss 23 and 26) or it is not. The legal protection comes with authorisation (s 24) but ‘non authorisation’ does not make the assembly unlawful or expose anyone to any prosecution simply for being there and taking part. To describe an order under s 25 as prohibiting the assembly sounds good but it’s not what the effect of an order is; the effect of the order is that it is not authorised and s 24 does not provide participants protection for the enforcement of any other law.

Balancing rights – Conclusion

This could be seen as a case where the court had to balance the right to protest against the right of the authorities to restrict movement because of public health emergency and the right of others to face a reduced risk of pandemic spread. For many, including some readers and contributors to this blog, they may want to look at this case of evidence of overreach by the government and the role of the court as saviour of fundamental freedoms. I’m afraid the result was not nearly as interesting. As the court said (at [7]):

Competing public interests of great importance were thus potentially engaged but… the issues before this Court were very narrow. Our decision did not ultimately turn on a difficult weighing exercise that resolution of that competition would necessarily have required; rather, the appeal was allowed by reason of the operation of the provisions of the Summary Offences Act in the context of a notice of intention to hold a public assembly (the Notice of Intention) which had been given pursuant to that Act by Mr Bassi to the Commissioner on 29 May 2020.

Nothing to do with human rights but the words of the statute. The organisers served a notice, the commissioner did not object and so the organisers and participants were entitled to rely on that authorisation. When the Commissioner did object it was all too late, putting the relevant objection to the court twenty minutes before the assembly was due to commence.

It confirms my view that the way to get what you want is to fill in the correct form and pay the prescribed fee.

Today’s question is really about the meaning of the word ‘professional’.  I’m told that in South Australia,

… SA ambulance rolled out new ambulances to volunteer (unpaid) stations which have wording, “Professional service provided by volunteers from…” see https://www.abc.net.au/news/2020-06-03/ambulance-volunteers-rewarded-with-new-fleet/12317444

There is a clear divide on thoughts of the above from paid career paramedics, volunteers (cert IV) and paid ambulance officers (cert IV). Not that I think qualifications matter, the simple fact is healthcare professionals are not crewing these ambulances when the public think they are.

Are there any issues of misrepresentation of the workforce to the public? Can non paramedics say they are professionals in the prehospital care or ambulance context?

My short answer is ‘no; there are no issues’. Let us now look at that in detail.

The Health Practitioner Regulation National Law protects the use of titles. There is no suggestion that the volunteers are using the title paramedic (noting of course that a volunteer may indeed be a registered paramedic).

The Australian Consumer law provides that a person shall not, in trade or commerce, engage in conduct that is misleading or deceptive (Competition and Consumer Act 2010 (Cth); Schedule 2, cll 18 and 29).  Clause 29 says

(1) A person must not, in trade or commerce, in connection with the supply or possible supply of … services or in connection with the promotion by any means of the supply or use of … services:…

(b) make a false or misleading representation that services are of a particular standard, quality, value or grade…

First, I doubt SA Ambulance are engaged in trade or commerce but they may be – see United Firefighters Union of Australia (‘UFU’) v Country Fire Authority (‘CFA’) [2014] FCA 17 (31 January 2014) (February 12, 2014)).

If we assume SA Ambulance is engaged in trade and commerce, can a claim of ‘Professional service provided by volunteers…’ be misleading or deceptive? The answer to that depends what professional means.  It may mean a person who is paid rather than an amateur or hobbyist, or it may mean a member of a profession.  It is axiomatic that volunteers are not being paid; and if we put aside volunteers who are registered paramedics we might infer that many, if not most are not members of a recognised, registered healthcare profession. On those meanings the volunteers are not professionals; but they are just two of many possible meanings of the word ‘professional’.

The Cambridge dictionary (online) defines professional as:

• relating to work that needs special training or education:
• having the qualities that you connect with trained and skilled people, such as effectiveness, skill, organization, and seriousness of manner:
• used to describe someone who does a job that people usually do as a hobby:
• having the type of job that is respected because it involves a high level of education and training:

The Collins English dictionary  has similar definitions and adds as an adjective ‘If you say that something that someone does or produces is professional, you approve of it because you think that it is of a very high standard.

The online Oxford dictionary for English learners has these definitions (emphasis in original):

• doing something as a paid job rather than as a hobby…
• (of sport) done as a paid job rather than as a hobby…
• [only before noun] connected with a job that needs special training or skill, especially one that needs a high level of education…
• (of people) having a job which needs special training and a high level of education…
• showing that somebody is well trained and has a lot of skill SYNONYM competent
  He dealt with the problem in a highly professional
  Many of the performers were very professional.
  People trust websites that look professional.
  professional in somethingThe consultant was very friendly but professional in his approach.

If the words used are ‘‘Professional service provided by volunteers…’ the word ‘professional’ is an adjective being used to describe the service, not the service providers. SA Ambulance are claiming that their volunteers will provide a professional service that is a service that ‘needs special training and a high level of education’, is delivered to ‘a very high standard’ and with ‘the qualities that you connect with trained and skilled people, such as effectiveness, skill, organization, and seriousness of manner’ even though the people providing that service are volunteers, not someone getting paid to do the job.

Now one might think that volunteers never do a good job but clearly SA Ambulance doesn’t think that otherwise they would not use volunteers. (And if anyone does think that, then they have a pretty low opinion of volunteers with Australia’s emergency services – our volunteer firefighters, rescue and emergency officers and ambulance officers are and should be recognised as providing professional quality services even though they don’t get paid). And even if on occasions an individual fails to live up to professional standards (as might paid paramedics) that doesn’t mean that an agency cannot make a claim as to the level of service they intend and expect to provide.

Conclusion

I fail to see how any person could infer that a statement ‘Professional service provided by volunteers from…’ is holding out that the volunteers are either paid or necessarily a member of a registered health professional.  It is a description of the quality of the service provided. It claims that the volunteers are providing a skilled service, with a high level of care with ‘effectiveness, skill, organization, and seriousness of manner’.

Non paramedics cannot hold themselves out as paramedics.  There is nothing to stop them, or the organisation for which they volunteer, recognising that they provide a professional service.

On its plain English language meaning there is no potential to hold that this claim is misleading or deceptive. Anyone who thinks it is misleading is not reading the English word ‘professional’ in its ordinary, but multiple meanings.