Updating the NSW SES Code of Conduct

Michael Eburn: Australian Emergency Law - 8 February, 2020 - 16:36

A volunteer with the NSW SES

… recently noted that a new Code of Conduct and Ethics policy document had been released and published in the services policy index, it appears the revision was signed off by the SES Chief of Staff, as far as I can tell this document is now the official latest version. The new policy appears to contain quite significant changes and I would consider it a cornerstone document relating to volunteers’ relationship with the NSW State Emergency Service.

After speaking to various volunteers and staff it is clear that many were not aware that a new Code of Conduct was in the works, nor were any volunteers given notice that the new code of conduct had been released. The service still has not provided any formal communication indicating that there is a new Code of Conduct policy released. Included in the appendices of the code of conduct is a signature page that is to be signed by members acknowledging they accept the code of conduct, this is usually only done once when a member first joins the service.

Our Zone commander forwarded an email to all Local/Unit commanders in my zone last night, I won’t share the email in its entirety but here is an excerpt,

Please note the revised Code of Conduct is now on the KDI. Volunteers and Staff will be advised via:-

    • Member Connect (bi-weekly news letter)
    • A message on the entry screen of each user’s device/computer outlining that the Code of Conduct has been revised, acknowledging that the user has read the revised Code and the user acknowledges they have read and understood the message.

We have been requested to communicate the revised version through our Unit/Local Commanders, ensuring it is communicated at all training nights.

Key things to note re the updated Code:-

    • The Code of Conduct aligns with the Public Service Commission’s Code of Ethics and Conduct for the NSW government sector. It is also consistent with the Department of Communities and Justice Code of Ethics and Conduct.
    • The major change to note is that the revised Code of Conduct incorporates the requirements of the Conflict of Interest Policy.

I note, 99% of SES volunteers do not have an SES computer or device.

From a legal standpoint, should all volunteers and staff be required to sign the updated code of conduct or is notification by official channels requesting each member to review the update policy in their own time sufficient? and if so, would simply sending an email to all members service address be sufficient in from a legal aspect for the service to assume that all members have been notified of the updated policy?

The answer depends on the status of the Code of Conduct. On one view it might be akin to a contract. A member offer to provides their service in consideration of the training and status they receive as a member of the SES and when they sign the code of conduct that is the terms of their engagement. If there is a new Code of Conduct they are only bound if they agree to the change of terms.

I do not, however think that analogy is correct. The nature of the relationship between volunteers and the SES does have an appearance of a contract and it is one where the parties are entering into a legal relationship but if it’s a contract much of it is unenforceable. An employment contract commits the employee to turn up to work and the employer to provide work but a volunteer is under no obligation to turn up. And it’s not clear what contractual obligations (as opposed to say obligations that arise under statute law) the SES owes its members.

Even if we assume there is a contract between a volunteer and the SES it must stand to reason that the terms can change as they need to over time. If the terms were fixed at the time the member joined and signed the Code of Conduct that was current at that date, there would be different expectations on different members depending on when they joined.

The State Emergency Service is a statutory authority created by the State Emergency Service Act 1989 (NSW).  The Commissioner ‘is responsible for managing and controlling the activities of the State Emergency Service’ (s 11). There is no specific power to make standing orders or procedures (compare that with the Rural Fires Act 1997 (NSW) s 13). Section 18A says, however (emphasis added):

(3) Membership of an SES unit may be suspended at any time, but only for the purposes of conducting an investigation into:

(a) the member’s alleged offence against any law, or

(b) the member’s alleged contravention of, or failure to comply with, the procedures or instructions of the State Emergency Service

(6) The procedures for:

(a) suspending or withdrawing membership of an SES unit, and

(b) appealing against the withdrawal of membership of an SES unit,

are to be as set out in the procedure manuals maintained by the State Emergency Service.

There is an implied power to write and promulgate procedures and instructions for the members of the Service.

Discussion

I would suggest that the Code of Conduct is an instruction from the SES as to what is expected from the members, rather than a contractual document. There has to be the capacity to vary it over time in order to keep the SES up-to-date with developments in the public sector and in the community broadly. If that is correct then from ‘a legal standpoint’ it would not be necessary to have every member sign the new version in order to be bound by it. But members cannot be bound by or disciplined for failing to observe a standard that they were not aware of.  Asking ‘volunteers and staff’ to ‘sign the updated code of conduct’ is not so much to bind them in a contractual sense but to make sure it is brought to their attention and is therefore evidence that they were aware of the terms should there be a later reason to subject the member to discipline. In that case the member cannot say ‘but I did not know this conduct was prohibited’. That is a different argument to ‘but I was not bound to honour this document, even though I knew of its terms, because I did not sign it’.

I don’t think ‘simply sending an email to all members service address’ would be sufficient ‘from a legal aspect for the service to assume that all members have been notified of the updated policy’ but I don’t think that’s how the issue would play out. If a member was subject to discipline about the matter the question would be was ‘sending an email to all members service address sufficient to bring the matter to the attention of this member?’ And that would then allow discussion of that member’s particular circumstances and how communication is made to that member.

Clearly there is more to it than just an email. As the zone commander’s email, quoted above, says ‘Volunteers and Staff will be advised via:- Member Connect (bi-weekly news letter); A message on the entry screen of each user’s device/computer…’ and through messages from .’Unit / Local Commanders… at all training nights.’

Conclusion

I don’t think the Code of Conduct is truly contractual in nature, such that a signature by a member is proof that they agree to serve on the terms set out in the document. It is more in the nature of ‘the procedures or instructions of the State Emergency Service’.

The SES no doubt wants to ensure members are aware of the Code of Conduct as it wants members to comply with its standards. On a less principled level it also wants to make sure that at any disciplinary hearing it can make the argument that the member either knew, or should have known, of the terms of the Code of Conduct rather than the member expressly agreed to be bound by it. The value of the member’s signature is that it is evidence that the document was brought to their attention rather than an express agreement to be bound. Other evidence may also demonstrate that the matter was brought to the attention of members such as the use of broadcast emails and announcements at training nights but whether they reached a particular member can be contested. The member’s signature cannot.

Categories: Researchers

Unauthorised ambulance services in the ACT

Michael Eburn: Australian Emergency Law - 7 February, 2020 - 20:27

Today’s correspondent poses:

A few questions from the ACT [the Australian Capital Territory]. I work for a private ambulance provider and we see a lot of interstate (NSW or QLD) based providers come into the territory to provide ‘first aid’. The basis of my question is what constitutes first aid. These ‘first aid’ providers clearly do more than simple splinting/bandaging or administering the patient’s own medication. The Emergencies Act 2004 (ACT) provides law around approved providers of Ambulance Services and those that render first aid do NOT require a licence. But what is first aid? Most of the providers bring schedule 2, 3, 4 medications into the ACT and provide them to patients, this is another concern. They should be licenced with ACT Health (administered by the Health Protection Service) to possess, supply or administer scheduled medications.

So just to reiterate:

1. What constitutes first aid? Or what is more than first aid in terms of medical coverage?

2. What penalties apply of providing ambulance services without an approval?

As the advice given to me by the ACT Ambulance Service and the Minister is that although penalty units apply for breaches, there is no mechanism for enforcement unless it is an approved provider who breaches their current approval, as opposed to an entity without an approval but providing services.

3.What additional mechanisms (if any) would you recommend to ensure that the public and event/festival organisers are protected?

Q1: First aid

The relevant provision is the Emergencies Act 2004 (ACT) s 63 which says:

(1) A person commits an offence if—

(a) the person is not approved by the Minister under this part to provide emergency, ambulance, firefighting or rescue services; and

(b) the person provides emergency, ambulance, firefighting or rescue services.

Maximum penalty: 50 penalty units, imprisonment for 6 months or both.

(2) A person commits an offence if—

(a) the Minister approves the person to provide ambulance, emergency, firefighting or rescue services; and

(b) the person provides ambulance, emergency, firefighting or rescue services for which they are not approved.

Maximum penalty: 50 penalty units, imprisonment for 6 months or both.

(3) This section does not apply to—

(a) a doctor in relation to the provision of medical treatment, or pre-hospital care to a patient, in the course of, or as an incident of, conducting a medical practice; or

(b) an entity in relation to the provision of first aid; or

(c) a person who, acting without expectation of payment or other consideration, comes to the aid of a person who is apparently—

(i) injured or at risk of being injured; or

(ii) is in another way in need of emergency assistance; or

(d) a person who, acting without expectation of payment or other consideration, does something to reduce, or attempt to reduce, the effects of an emergency before the arrival of an emergency service; or

(e) a Commonwealth or State agency.

How do we distinguish between an entity that is providing first aid and an entity that is providing an emergency ambulance service? The Act gives no guidance so the only way to find out would be for someone to be prosecuted and for them to argue that s 63(3)(b) applies to them and for the prosecution to argue that it does not, and then a court would have to decide the question.

A first step would be to ask what is an emergency ambulance service? First aid is not defined but ‘ambulance services’ means (s 60) ‘the provision of medical treatment and pre-hospital patient care, and includes the transport of a patient by ambulance or medical rescue aircraft.’

That is not very helpful. The first question is what is ‘medical treatment’?  If medical treatment (in s 60) means ‘treatment by a medical practitioner’ then an ambulance service is ‘the provision of medical treatment [by a doctor]…’ but s 63(3) says that the prohibition does not apply to ‘medical treatment [by a doctor]’ or in other words, it’s an offence to provide medical treatment by a doctor unless you are a doctor.  I don’t think that is what is intended, and that medical treatment means something more than treatment by a medical practitioner. Paramedics and nurses can also provide ‘medical treatment’ as can first aiders.

Pre-hospital care is also an issue. Much care provided by ‘event health services’ is not pre-hospital. The person was never going to go to hospital or, in some cases, the care provided may mean they can avoid a trip to hospital. First aiders who give band-aids and Panadol may not be giving ‘pre-hospital care’ but even first aiders can treat people who are critically ill and that is ‘pre-hospital’ care. Controlling life threatening haemorrhage or doing CPR on a patient in sudden cardiac arrest is all ‘pre-hospital’ care, no matter who is providing that care.

I suspect the key component is that it ‘patient transport’ ie a service that has patient transport vehicles is providing ambulance services whereas an agency that does not offer that service, is not. But it does not have to be transport to a hospital on a public road. Driving a patient in a golf buggy from one area of an event to the medical tent is still patient transport (Paramedical Services Pty Ltd v The Ambulance Service of New South Wales [1999] FCA 548).

The answer to the first question ‘What constitutes first aid? Or what is more than first aid in terms of medical coverage?’ is ‘We have no idea; we’ll need to wait for someone to be prosecuted to find out.’

Q2. What penalties apply of providing ambulance services without an approval?

The penalty for providing an ambulance service without approval is a maximum fine of 50 penalty units or imprisonment for 6 months or both.  In the ACT a penalty unit is worth $160 for an individual and $810 for a corporation (Legislation Act 2001 (ACT) s 133).

So the maximum penalty for an individual is (50 x $160 =) $8000 and/or up to 6 months in gaol. For a corporation the maximum fine is (50 x $810 =) $40,500. A corporation cannot go to gaol.

There is a mechanism for enforcement, it’s called the criminal law. The police or ACT Health could lay an information before a magistrate, or file and serve a court attendance notice (Magistrates Court Act 1930 (ACT) ss 26 and 41B) alleging that a defendant had committed an offence contrary to s 63. The matter would proceed to court and the prosecution would have to prove its case ‘beyond reasonable doubt’.

Q3. What additional mechanisms (if any) would you recommend to ensure that the public and event/festival organisers are protected?

I’m not sure as I don’t know as recommending legislative change requires detailed consideration of the problem and consultation with stakeholders. The states and territories should, however, watch with interest the effectiveness of the licensing system being developed in Victoria – see Discussion paper on licensing of first aid providers in Victoria released (July 2, 2019).

Categories: Researchers

‘City councilman calls for Sacramento department to pull out of ‘Live Rescue’ TV show’

Michael Eburn: Australian Emergency Law - 6 February, 2020 - 16:56

I have written my view on ‘live’ TV shows involving ambulance services and how the push to put everything on social media risks breaching professional and legal obligations of paramedics – see

Now these articles from Sacramento, California also make the claim that these types of shows are inappropriate:

“These shows are exploitative …Certainly when you call 911 in a moment of distress or have an emergency, you don’t expect a film crew to be coming to film you or your family member, child or loved one. It’s trauma porn.”

See

 

Categories: Researchers

Blog post as evidence of fitness to practice

Michael Eburn: Australian Emergency Law - 5 February, 2020 - 18:16

I have previously written about a young doctor who was subject to professional discipline for what he wrote online – see Inappropriate online comments: Professional misconduct (April 24, 2019).  Another doctor has come to grief for what he posted on his practice website (Health Care Complaints Commission v McGregor [2020] NSWCATOD 13; and I again thank Bill Madden and his health law blog for bringing this case to my attention).

In this case it was not what he said that was the problem, but what it showed about his state of mental health and fitness to practice medicine.

Dr McGregor was a psychiatrist who had become suspicious that his partner was having an affair with another doctor. He filed a complaint with AHPRA against the other doctor and sent details of the complaint to a colleague. ‘Dr McGregor said that he sent the complaint to his colleague to protect his reputation’.  The colleague in turn made a complaint to AHPRA about Dr McGregor’s conduct. Whilst investigating the complaint, investigators looked at Dr McGregor’s practice website and found the following two blog posts:

29 January 2018

The following is the sole opinion and request by Dr Russell McGregor, Psychiatrist, and Director/Owner of “The Northern Beaches Psychiatrist and Psychologist Family Medical Practice.”

This post does not represent the opinion of anyone else at my practice.

This message is to all patriotic Australians.

Our world is at an historic inflection point where our freedom is at stake. The next few weeks and months will be critical.

Please spread the word to our blue pilled friends. We MUST stand up and support President Trump in his fight against the global deepstate. Educate yourself with the above, follow Q, and tweet/talk/message!

Once the Devine Nunes memo is released in the next few days there will be a CIA/deepstate backlash on the MSM. They will ramp up the propaganda. It will be ceaseless. You will encounter much resistance. Fight with your keyboard, knowledge and pen. Just fight!

Watch Dr Jerome Corsi on Youtube/Infowars. Follow Q’s breadcrumbs. Understand the FISA wiretapping, M 16 connection, Assassination plots and brace yourself for the unmentionable satanic ritual evidence to follow. The evil truth will be hard for most to bear. Be brave. Seek loved ones and offer compassion to friends and family.

When 9/11 is exposed the world will change. We will finally have the freedom to alter our future for the good. It is at this time that the treason trials will begin in Australia. Rightly, it will be the people who will decide judgement. Let us be fair and humane – but just.

Support white hats/Trump, Assange, Jones, Farage, Corsi, Brian Wilshire.

I have been aware of, and have researched the deepstate for decades. All that which is stated by Q is generally in keeping with my prior knowledge. Indeed there is a great deal more to the story than Q may wish to tell. It may remain untold. However trust Q as Q speaks the truth. I place my reputation at Q’s disposal.

Dr Russell McGregor

 

30 January 2018

The post below represents the sole opinion of Dr Russell McGregor, Psychiatrist. It does not represent the opinion of anyone else employed or associated with The Northern Beaches Psychiatrist and Psychologist Family Medical Practice.

Thank you to the GOP patriots of the House Intelligence Committee for approving the release of the Memo! This will be the start of the worldwide global awakening to our enslavement by the deep state. Over the course of 2018 there will be regular dumps of information by President Trump which will lay out just how close we have all been to the complete loss of our freedoms. I hope that the Australian people will use this knowledge to wisely transform our political and judicial landscape to prevent this from ever occurring again. It is up to all of us to be involved in this process and to reflect/understand the failings of each of us to have let this happen. Everyone no matter which party or philosophy that we have stubbornly adhered to must learn the lessons of our individual and collective mistakes.

. . .(passages deleted)

Julian Assange is not in the Ecuadorian Embassy. He is either in Switzerland or Washington. Q and the MoD, SVR (Kremlin) confirm this. He is an Australian hero and would make a fine future PM.

When the infant torture, rape and satanic rites cannibalism by elites is provided by Trump on tape – seek the comfort of others.

Pay attention to the news cycle. Follow Q breadcrumbs on 8chan. Message, tweet, post and discuss with friends and family. Be open to new knowledge and cross check information thoroughly.

Await the Australian Treason Trials (TT’s). Good luck John.

Dr Russell McGregor

A further complaint was made on the basis that Dr McGregor was not fit to practice medicine. Dr McGregor failed to take part in the initial hearings into his fitness to practice and he refused to attend an interview with a psychiatrist that the Medical Council required him to attend.  The judgement says (at [16]-[17]):

When Dr McGregor failed to attend the appointment with the psychiatrist, the Council decided to convene urgent proceedings under s 150 of the National Law. That provision allows Council to suspend a medical practitioner’s registration or impose conditions on the registration.

Before the scheduled hearing on 5 March 2018, representatives from the Council made numerous phone calls and attempted to contact Dr McGregor by email. Dr McGregor did not cooperate. On more than one occasion he hung up on the caller. On 23 February 2018 a representative from the Council succeeded in having a conversation with Dr McGregor. Dr McGregor told her that regardless of what Council does, it won’t change his political views and he won’t remove the blog from his website. Dr McGregor added that he would not attend the s 150 hearing.

During the hearing (at [19]-[21]):

… the panel attempted to contact Dr McGregor by phone. Eventually Dr McGregor spoke with the three Council delegates on the panel. He repeatedly asserted that it was his politically views, as expressed in his blog that had brought him to the Council’s attention. Despite the Presiding Member telling him that it was concerns about his mental health that had triggered their response, Dr McGregor continued to assert that he was being persecuted because of his political opinions.

At one stage during the phone call, Dr McGregor explained that, “there are great political changes occurring in the world at the moment and um I uh you know I need to uh uh get that across to other people and um ah if you uh feel that because uh my opinion is a little different to yours that you need to take away my registration that’s up to you . . um but . . .” He went on. “Um if you had any understanding of politics um you would understand that that that the beliefs that are actually put on the blog are actually um the uh directives um from ah from President Trump.”

The issue for the Council delegates at the s 150 hearing was whether Dr McGregor’s registration should be suspended to protect the health or safety of any persons or because the delegates were satisfied that suspension was necessary in the public interest: National Law, s 150(1). Based on several blog posts, the Council delegates concluded that Dr McGregor showed such impaired judgment, that exposure to those views had significant potential to expose his patients to risk of harm.

An urgent order was made and when communicated to Dr McGregor he responded with language that could be described as inappropriate, violent and offensive (see [22]).

Dr McGregor sought a review of the decision on the basis that he was being suspended for his political views rather than his fitness to practice. He alleged:

The Medical Council of New South Wales is a Paedophile Protection Agency. The operatives who have been involved in Politically destroying me are deranged President Trump haters and those who are Political sycophants of what the Deep State represents. That is, they Sensor and Punish any Patriot who criticises Paedophilia, and other Deep State crimes.

The New South Wales Health Care Complaints Commission referred the matter to the New South Wales Civil and Administrative Tribunal as they, and the Medical Council, are ([35]) “under a duty to refer a complaint to the Tribunal if, at any time, either forms the opinion that it may, if substantiated, provide grounds for the suspension or cancellation of a registered health practitioner’s . . . registration” (Health Practitioner Regulation National Law s 145D).

There were a number of complaints relating to Dr McGregor’s conduct including his complaint about his colleague, passing on details of that complaint to another practitioner and self-medication. These were found not to be examples of improper or unethical conduct within the meaning of the National Law.  What the tribunal did find ([41]) was that the blog publication had ‘the potential to expose Dr McGregor’s patients to harm when accessing the practice website for information or to make an appointment’ and that the publication of the blog content and the abusive language directed to the Presiding Member who advised him of the decision to suspend his right to practice were both examples of ‘improper or unethical conduct’.

There was a report prepared by a psychiatrist that Dr McGregor did agree to see (after initially refusing to comply with an order). That doctor concluded

These ways of responding may represent paranoid personality traits which have become exaggerated as a result of the stresses experienced by Dr McGregor, or they may represent a paranoid personality disorder.

The tribunal said ([92]-[95]):

The evidence supports a finding that Dr McGregor has a psychiatric impairment, disability, condition or disorder, being ‘impaired judgment,” “affective instability”, “a belligerent and ineffective approach to conflict resolution” and “a strong and public adherence to beliefs that are bizarre and possibly overvalued.” It is apparent that Dr McGregor has rigid views and perceives that he is being persecuted because of his political beliefs. Despite being told repeatedly that the concern was with his mental health, not his political views, Dr McGregor persisted in that belief. He wrote repeatedly in his blog and in emails that he was being persecuted because the Medical Council and others disagreed with his political beliefs.

Dr McGregor has not admitted that he has an impairment, but that conclusion is supported by Dr Wright’s evidence with which we agree. It is not necessary to identify a diagnosis in accordance with the Diagnostic and Statistical Manual of Mental Disorders (DSM–5) or otherwise. It is sufficient to note that we agree with Dr Wright that he has impaired reality testing. His perception is not the reality. Alternatively, he may have a delusional disorder or paranoid personality disorder. He has a psychiatric impairment, disability, condition or disorder.

… That impairment is likely to detrimentally affect Dr McGregor’s capacity to practise medicine. Dr McGregor is a psychiatrist. His clients, some of whom may be prone to paranoid thoughts or beliefs, are likely to read the blog and be influenced by his bizarre and overvalued ideas. In the clinical setting with patients who have various mental illnesses, conflict is a distinct possibility. Rather than managing and resolving conflict, Dr McGregor’s past behaviour suggests that he is likely to escalate the conflict if he feels under stress.

The conclusion was:

… Dr McGregor does not have sufficient mental capacity to practise medicine. The persistence of impaired reality testing that leads to entrenched misinterpretations of his perceptions and his inability to modify his interpretation of external events produce impairment sufficient to preclude confidence that Dr McGregor can practise safely. The impaired judgment and lack of insight he has displayed over a prolonged period demonstrate the need for public protection while his current impairment persists.

His behaviour in the s 150 hearing discloses a belligerent and unhelpful response to conflict. His vitriolic and somewhat bizarre abuse of Dr Wright and Dr Dore – who he perceived as a threat to his livelihood – is further evidence of impaired judgement and instability.

Although there have been no complaints from patients about his clinical practice since 2013, Dr Wright said that that does not mean that incidents with patients could not occur in the future. Dr McGregor has demonstrated that when under stress, conflict can escalate. That conflict is likely to impact negatively on his clinical practice in the future.

The result was that Dr McGregor’s registration was cancelled for at least 12 months.

Discussion

The judgment largely speaks for itself. The relevant learning is that what a health practitioner writes online can be evidence of their capacity to practice medicine. In this case the fact that the posts were put on his medical practice website (not an alt-right discussion forum) coupled with his identification as a practitioner ([61]) ‘a person with high status and authority in the community’ meant these posts  relate to “the practice or purported practice of medicine and were relevant to questions of this fitness to practice.

Whilst no doubt Dr McGregor does not agree with the findings, it does seem clear that the action against him was based on legitimate concern for his welfare and the welfare of his patients.  It was not, as Dr McGregor alleged (at [82]) actions of ‘a Government Institution with bigoted/intolerant socially left wing zealots who conform to groupthink and take political views to further their careers’.

The lessons for readers of this blog is that what you write online can, depending on where you write it and if you use your status as a health professional to give more standing to your views, be used to demonstrate that you are not a fit and proper person to practice.  Of course a practitioner who is delusional and suffering from a mental illness will be unlikely to consider that or recognise that what they write demonstrates a mental illness.  Those who are simply rat bags (like Dr Christopher Kwan Chen Lee; the subject of my earlier post Inappropriate online comments: Professional misconduct (April 24, 2019)) will need to consider how they wish to promote their views online.

Categories: Researchers

Responsibility in medical teams

Michael Eburn: Australian Emergency Law - 3 February, 2020 - 21:05

Today’s question

… is regarding a medical team (mixed discipline Paramedics, Diploma holding medics and sometimes Nurses) for an event. Within that team legally who bears the burden or overall responsibility for patient outcomes in the eyes of the coroner and any other applicable medico-legal issues for that team.

Fundamentally the answer to that question depends on how the team is structured, ie who is the appointed team leader? what was the task?

Speaking more generally the answer is no single person. Each person is responsible for their task and their role. If there are poor patient outcomes the question would be ‘what happened and what part did each team member play?’ Who is responsible for the ‘patient outcome’ depends on what happened: Was there a failure by the doctor to consider a diagnosis and order a test? A failure by the nurse to report observed signs, symptoms or patient’s complaint? A failure by the paramedic to perform some task with appropriate skill and care? Was there a failure by the organisation that deployed the team to ensure the members were adequately resourced for the task.

There is not a ‘hierarchy’ where everyone is ‘deemed’ to act only on the orders of the most senior practitioner or doctor above nurses above paramedics etc. People are responsible for the decisions they make and the actions they take in all the circumstances.

Categories: Researchers

Paramedics asked to act as a young person’s ‘support person’ during police operations

Michael Eburn: Australian Emergency Law - 3 February, 2020 - 17:47

Today’s question raises a truly disturbing prospect that I think paramedics should actively and strenuously resist. My correspondent says:

Recently at a major event, several registered paramedics were asked at various times to act as advocates (i.e. support persons) for persons aged 16-17 in police custody. The requests were for being a support person in lieu of parents for both strip searches and police interviews so an independent third-party adult was present during those events.

While paramedics and other health practitioners are used to providing advocacy, doing so in a legal or law enforcement proceeding c While it is understood that police were required to phone-conference in a youth legal advisor if a young person was actually being charged, the incidents where paramedics were requested to take part did not require legal representation by police procedure.

My questions are as follows:

1)      Is there any risk to the health professional in engaging in this type of third-party advocacy/support?

2)      What would occur if the health professional disagreed with the police handling of the matter?

3)      Is there liability for any act or omission of the health professions, for example, providing advice to the young person (which may or may not be accurate) on their matter with law enforcement? If the advice was inappropriate, or the police took exception to it, could that matter be referred to the regulator as a professional conduct matter.

4)      Is the risk or standard any different if a non-registered health practitioner, for example a first aider, performs these types of roles.

For reference, this example takes place in NSW, however similar jurisdictions no doubt have similar situations. This is a vexed area with multiple facets, so I appreciate the breadth of the issue.

Law Strip search

A ‘strip search’ (Law Enforcement (Powers and Responsibilities Act 2002 (NSW) s 3) is:

… a search of a person or of articles in the possession of a person that may include–

(a) requiring the person to remove all of his or her clothes, and

(b) an examination of the person’s body (but not of the person’s body cavities) and of those clothes.

I will assume (given the question) these searches are not occurring ‘at a police station or other place of detention’ In that case (s 31):

A police officer may carry out a strip search of a person if— …

(b) … the police officer suspects on reasonable grounds that the strip search is necessary for the purposes of the search and that the seriousness and urgency of the circumstances make the strip search necessary.

Section 33(3) says:

A strip search of a child who is at least 10 years of age but under 18 years of age, or of a person who has impaired intellectual functioning, must be conducted–

(a) in the presence of a parent or guardian of the person being searched, or

(b) if that is not acceptable to the person, in the presence of another person who is not a police officer and who is capable of representing the interests of the person being searched and whose presence is acceptable to that person.

If the young person says ‘it’s acceptable if mum or dad is here’ s 33(3)(b) is not relevant. If ‘mum or dad’ are not there and the police officer believes:

(a) delaying the search is likely to result in evidence being concealed or destroyed, or

(b) an immediate search is necessary to protect the safety of a person.

Then the police officer can conduct the search in the absence of a relevant support person, but he or she ‘must make a record of the reasons for not conducting the search in the presence of a parent or guardian, or other person capable of representing the interests, of the person being searched’ (s 33(3A)).

To put that in context if at the major event the police want to do a strip search, the young person says that it is acceptable to them that the search is conducted in the ‘presence of a parent or guardian’ then the police have to wait for that parent or guardian to be there or, if the circumstances of s 33(3A) do exist they can do the search and record why they did not do wait for the presence of the parent or guardian. Neither section 33(3) nor s 33(3A) says that ‘another person who is not a police officer and who is capable of representing the interests of the person being searched and whose presence is acceptable to that person’ can ‘stand in’ because it is not convenient to wait for the parent or guardian. ‘Another person who is not a police officer and who is capable of representing the interests of the person being searched’ is only relevant where the presence of a parent or guardian is unacceptable to the young person.

A search must be conducted by an officer of the same sex as the person to be searched – ie a male person must be searched by a male officer, a female person by a female officer (transgender and intersex persons are not provided for). Section 32(7A) says:

… if a police officer of the same sex as the person who is to be searched is not immediately available, a police officer may delegate the power to conduct the search to another person who is–

(a) of the same sex as the person to be searched, and

(b) of a class of persons prescribed by the regulations for the purposes of this subsection.

The search by that other person is to be conducted under the direction of the police officer and in accordance with provisions of this Act applying to searches conducted by police officers.

The regulations provide for who may conduct that search. The list includes ‘ambulance officers (within the meaning of the Mental Health Act 2007)’ (Law Enforcement (Powers and Responsibilities) Regulation 2016 (NSW) r 47). (An ambulance officer ‘(within the meaning of the Mental Health Act 2007)’ is ‘a member of staff of the NSW Health Service who is authorised by the Secretary to exercise functions of an ambulance officer under this Act’ (Mental Health Act 2007 (NSW) s 4)).

Interview

The Law Enforcement (Powers and Responsibilities Act 2002 (NSW) says, with respect to vulnerable persons (s 31)

A detained person or protected suspect who is a vulnerable person is entitled to have a support person present during any investigative procedure in which the detained person or protected suspect is to participate.

Strangely enough, ‘investigative procedure’ is not defined.

The Evidence Act 1995 (NSW) s 139 says that police must caution a person if the officer ‘formed a belief that there was sufficient evidence to establish that the person has committed an offence’ or the person is under arrest.  A person is under arrest when a police officer makes it clear, expressly or by implication, that the person is no longer free to leave. I would suggest any questioning at that place (and I think we can infer it’s going to be questioning about drug use) is an ‘investigative procedure’ even if it is not taking place at a police station.

A child cannot waive the right to have a protected person present (s 33).  Where the vulnerable person is aged over 14 the support person must be ‘an adult (other than a police officer) who has the consent of the child to be the support person for the child’ (s 30(a)).  Further, s 34 says that a:

… support person for the detained person or protected suspect that the support person is not restricted to acting merely as an observer during an interview of the detained person or protected suspect and may, among other things–

(a) assist and support the detained person or protected suspect, and

(b) observe whether or not the interview is being conducted properly and fairly, and

(c) identify communication problems with the detained person or protected suspect.

Paramedicine Code of Conduct

The Paramedicine Board’s Code of Conduct: Interim (June 2018) says:

  • ‘Practitioners have ethical and legal obligations to protect the privacy of people requiring and receiving care’;
  • ‘Minimising risk to patients or clients is a fundamental component of practice’;
  • ‘Practitioners have a duty to make the care of patients or clients their first concern and to practise safely and effectively’;
  • ‘Good practice is centred on patients or clients’;
  • ‘Good practice involves:…
    b) ensuring that practitioners maintain adequate knowledge and skills to provide safe and effective care’.

With respect to children and young people

  • ‘Good practice involves:
    (a) placing the interests and wellbeing of the child or young person first’.
Discussion

The role of a support person must be to provide support to the person, and in particular a young person (or any vulnerable person) who is undergoing what may be quite invasive police procedures.

It may be consistent with good paramedic practice to agree to be the support person where the police want to interview or search a paramedic’s patient and the patient asks the paramedic to stay with them. In those circumstances the paramedic may be able to say that he or she is putting the young person first, by attending the interview or search they are ‘minimising risk’ to the young person, and focussing on their patient.

I do not think that applies where police look around for an adult and ask the paramedic to be the support person for a child the paramedic has never met. A paramedic, as my correspondent says, has no training in this area so one would question whether a person, simply by virtue of their registration ‘is capable of representing the interests of the person being searched’.

One would also have to question whether the young person is in a position to say whether or not the paramedic’s presence is ‘acceptable’.  Imagine a situation where a young person is confronted with the authority of police, and is told or even asked ‘is it ok if the paramedic is here’. Paramedics tend to also be in uniform and most often (but not always) are from state/territory ambulance services.  They are as much a part of government as the police. How a young person could seriously understand that he or she is being asked ‘is it acceptable to you that this person you have never met is going to watch you be searched’ and that they have the option to say ‘no’ is beyond me.

Police finding someone, including a paramedic, who the young person does not know and who has no training or experience and asking them to be a ‘support person’ is ‘ticking a box’ – we had an adult there so it’s ok – it is providing support to the police, not the young person.

Asking paramedics to stand in sounds to me like lack of planning. Police must know that these situations arise and should have in place plans to meet the legal requirement, and ‘asking the paramedic who happens to be there’ is not a plan. If the plan is to ask paramedics to take on that role, or to conduct searches where there is not a police officer of the same sex as the person to be searched, then this should be negotiated with ambulance services and paramedic associations and appropriate training and procedures put in place.

The questions

1)      Is there any risk to the health professional in engaging in this type of third-party advocacy/support?

Absolutely. I expand on that below.

2)      What would occur if the health professional disagreed with the police handling of the matter?

He or she would have to raise that with police at the time. And if the matter went further the paramedic could expect to be called as a witness in any proceedings either by the police (to confirm that they did ‘ok’) or by the accused (to confirm that they did not). If they failed to do act in the client’s interests, then there may be professional or legal consequences. Providing comfort to police may even, in some extreme circumstance, give rise to an allegation that the paramedic was an accessory to police misbehaviour.

3)      Is there liability for any act or omission of the health professions, for example, providing advice to the young person (which may or may not be accurate) on their matter with law enforcement? If the advice was inappropriate, or the police took exception to it, could that matter be referred to the regulator as a professional conduct matter.

I would think so. I could make an argument that a paramedic who stepped in where there was no prior relationship with the patient is thereby supporting police, not their patient and that could, possibly be a breach of the code of conduct by not putting the young person’s interests first.

As for liability for advice (or not) or stepping in to stop misconduct (or not) then I could see that the fact that the paramedic has agreed to be a support person does give rise to a duty of care to the young person. What is ‘reasonable’ would be hard to judge given the absence of training or experience, but they are there as a professional and are asked as a professional which is different to ‘mum or dad’ or a sibling doing the same task. There would be difficulties, but it could be arguable that failure to intervene in some circumstances would be a breach of the very duty that the paramedic agreed to take on, ie support the person and act not ‘merely as an observer during an interview’.

4)      Is the risk or standard any different if a non-registered health practitioner, for example a first aider, performs these types of roles.

A non-registered health practitioner cannot be ‘struck off’ or subject to AHPRA discipline but would face similar issues.

Conclusion

Stepping in at ‘a major event… [when] asked … to act as advocates (i.e. support persons) for persons aged 16-17 in police custody’ seems to me to be an anathema to paramedic practice. It may be appropriate for paramedics who really wanted to join the police force and did not get in, but not for others, particularly where such action ‘is both outside their training and normal scope of’ practice.

With respect, what paramedics are being asked to do is ‘bear witness’ not support the young person. If they are to support the young person, or to conduct delegated searches (Law Enforcement (Powers and Responsibilities Act 2002 (NSW) s 32(7A)) then that should be the subject of preplanning between the ambulance service and the police force and be subject to training and procedures.

If, at the scene, the police say ‘if you don’t step in we can’t do the search’ or ‘we have to do it without a support person’ (s 33(3)) then the correct response is

That’s that’s your problem – either don’t search them or take responsibility for your call that the circumstances warrant a search without a support person. Don’t pretend that I can support a person who I’ve not met and where I have no training or experience in this matter.

Paramedics should not take responsibility for the police forces failure to think ahead nor absolve a police officer from his or her obligation to decide whether the circumstances in s 33(3A) apply.

The only exception that I see to that rule is where the paramedic has a clinical relationship with the young person and the police want to interview or search the paramedic’s patient. In those circumstances I would think standing with the young person/patient, insisting on being present during a search or stretcher side interview, would be quite consistent with good paramedic practice, but that is not the situation described.

In summary:

Police finding someone, including a paramedic, who the young person does not know and who has no training or experience and asking them to be a ‘support person’ is ‘ticking a box’ – “we had an adult there so it’s ok” – it is providing support to the police, not the young person.

 

 

Categories: Researchers

“Disaster Justice” book published

Michael Eburn: Australian Emergency Law - 3 February, 2020 - 12:05

My latest publication is a chapter in the book Natural Hazards and Disaster Justice: Challenges for Australia and its Neighbour. The book is published by Palgrave and was edited by my colleagues Anna Lukasiewicz and Claudia Baldwin.

My chapter, entitled ‘Looking to Courts of Law for Disaster Justice’ reports on earlier research and draws conclusions on why courts are ill equipped to deliver disaster ‘justice’.  In the introduction I say:

This chapter will consider the legal consequence after some notable disasters and the implications of a desire to look to law for ‘justice’. It is argued that the state should consider alternatives to adversarial legal proceedings in order to deliver justice to all those involved in disaster.

Given the current fires and calls for inquiries this chapter, and the release of the book as a whole, is very timely.

You can find details of the book here – Disaster Justice Flyer

You can buy the whole book or individual chapters from the publisher at https://www.palgrave.com/gp/book/9789811504655.

Categories: Researchers

Electing field officers at a NSW RFS brigade AGM with no quorum

Michael Eburn: Australian Emergency Law - 3 February, 2020 - 10:19

Today’s question suggests to me ongoing confusion about the status of RFS brigades – see for example:

Today’s question is:

… over the last two years our fire brigade (New South Wales Rural fire service) has held its AGM with less than the required number of members, as per brigade constitution, to form a quorum. There has always been a salaried staff member of the RFS present who has said, words to the effect of, whatever you as members decide at this meeting it will stand.  This statement by the salaried staff member has been recorded in the minutes of the meeting and read out loud to all the people present at the meeting.

My concern is that a Volunteer may not be covered by legislation and could be held personally liable should any investigation, law suite, coroner’s inquest, RFS disciplinary action, find out they were not properly voted in. At these AGMs there has also been a tradition of “tell so and so they have been voted in as XYZ Captain when you see them on Monday.”

My question is as follows.

1: Are field officers, Captain, Senior Deputy Captain, Deputy Captain, protected as per the service standards if they have not been appointed as per Due process.  No quorum.

The short answer is that all officers are appointed by the Commissioner. An election process is a way for the members to recommend to the Commissioner who should be appointed, but their authority comes from the Commissioner.

Brigades are not separate legal entities.  They are created by the Commissioner (Rural Fires Act 1997 (NSW) s 15 and Service Standard 2.1.1 Formation and Disbandment of Brigades and Groups of Brigades.) A brigade’s constitution is to be in the form approved by the Commissioner (Rural Fire Service Regulation 2013 (NSW) r 4).  The Brigade Constitution is set out in Service Standard 2.1.2 Brigade Constitution.

The Constitution provides that a brigade must hold an annual general meeting ([6]). ‘The quorum [that is: ‘the smallest number of people needed to be present at a meeting before it can officially begin and before official decisions can be taken’ (Cambridge Dictionary (Online), 3 February 2020)] for the AGM is 15% of the ordinary members calculated at the time of the meeting unless that percentage is increased by a brigade rule’ ([6.5]). At the AGM the members must ‘if their term of office has expired, elect the field officers for the ensuing term as required by clause 7.14’ ([6.10(d)]).  Clause 7.14 says:

At the AGM the members must elect the following field officers when the term of that officer has expired:

(a) captain;

(b) senior deputy captain; and

(c) as many deputy captains as the Brigade decides at the AGM or the most recent general meeting.

If there is no quorum ([6.8]-[6.9]):

(a) the meeting must be adjourned;

(b) a new meeting date must be set by the captain or president and district manager; and

(c) all members must then be notified of the new date by a method specified in clause 11.1 at least seven days before the meeting.

6.9 If the second meeting fails to achieve a quorum, the AGM must be adjourned and the matter referred to the district manager.

The appointment of Field and Group Officers is governed by Service Standard 2.1.4 Appointment of Field and Group Officers. That Service Standard says (at [3.1] emphasis added) ‘Field Officers are appointed after the election by brigade members in accordance with the brigade’s constitution.’  That is it is not the election that sees them appointed, they are not appointed ‘by’ election but appointed by the District Manager ‘after’ the election. The Standard goes onto say:

3.15 A District Manager may appoint any member of the NSW RFS as a Senior Deputy Captain or Deputy Captain of a brigade for a period of not more than 12 months if the District Manager believes that it is necessary to ensure the safe and effective operation of the brigade.

3.16 If the Captain’s position becomes vacant and the brigade is unwilling or unable to elect another member to that position, the District Manager may appoint a suitably qualified member of the NSW RFS to that position until the next annual general meeting, or for a shorter period.

Certainly, if there is no quorum then the ‘brigade is … unable to elect another member to’ the position of Captain within the terms of the Brigade’s Constitution.

A district manager can also terminate a field officers’ appointment Service Standard 2.1.2 Brigade Constitution [7.20] and Service Standard 2.1.4 Appointment of Field and Group Officers [3.11].

Discussion

To proceed with the AGM in the absence of the quorum is inconsistent with the Brigade Constitution and should not happen. I’m a firm believer in ‘mean what you say and say what you mean’ so if the Commissioner has put those provisions in the Brigades’ Constitution then it should be inferred that he meant that to be followed. (I say ‘he because the current Commissioner is a male and given we are talking specifics it seems unnecessary to say ‘he or she’ or ‘him or her’, but recognising that a future RFS Commissioner will be female).

Having said that however, the Constitution is a matter of internal management, that is it is how the Commissioner choses to exercise responsibility for ‘managing and controlling the activities of the Service’ (s 12(1)). Unlike a company incorporated under the Corporations Act 2001 (Cth) or the Associations Incorporation Act 2009 (NSW) there is no statutory requirement to follow these various provisions. Brigades could exist without a constitution in the form set out in the Service Standard and the Commissioner could chose to have any other sort of process to select field officers.

Section 22, dealing with the ‘General powers of rural fire brigade officers and others’ says that ‘An officer of a rural fire brigade or group of rural fire brigades of a rank designated by the Commissioner may …’ exercise the emergency powers set out in the Act.  A person who holds an appointment as a field officer holds that appointment by virtue of the Commissioner’s will so holds it even if there was an anomaly in his or her appointment and even if a subsequent challenge saw that appointment terminated. Whilst he or she holds the appointment then they hold the relevant rank (see also Interpretation Act 1987 (NSW) s 19 and 48).

The various ranks (Captain, Deputy Captain and ‘field officer’) are not mentioned in either the Rural Fires Act 1997 (NSW) or the Rural Fires Regulation 2013 (NSW). There is no statutory method for their appointment or a requirement that those ranks exist. The creation of the rank structure is again a matter for the Commissioner (Rural Fires Act, 1997 (NSW) s 12(4)) and is given effect by Service Standard 1.2.1 NSW RFS Ranking and Rank Insignia.

What follows from all of that is that ‘field officers, Captain, Senior Deputy Captain, Deputy Captain’ are all members of the RFS. It is that membership that ensures they enjoy the protection of the Rural Fires Act 1997 (NSW) s 128 and the principles of vicarious liability (see  Vicarious liability for volunteers (April 23, 2018)). The critical question will be ‘was the person a member of the RFS?’ as that is the only relevant criteria at law (Rural Fires Act 1997 (NSW) s 20 and s 128(2)(c); Civil Liability Act 2002 (NSW) ss 3C and 61). However they are nominated, field officers hold their appointment at the will of the Commissioner. If there is an anomaly in their appointment that anomaly belongs to the RFS, it would not affect the member’s position but may be subject to some comment if it had some impact on the response to a fire or management of the service.

Conclusion

The Brigade Constitution should be followed as the Commissioner must intend that it will be followed. Where there is no quorum the meeting ‘must be adjourned’ and a new meeting called. ‘If the second meeting fails to achieve a quorum, the AGM must be adjourned and the matter referred to the district manager’ (although it is not clear what the district manager can, or is to do about it).

Where the term of field officers expires and there is no AGM then there can be no election under cl 7.14 of the Constitution. The District Manager (or his or her delegate) could still ask those present to express their view on who should be appointed (for example by election of those present) and those members could be appointed pursuant to Service Standard 2.1.4 Appointment of Field and Group Officers [3.15] and [3.16].

If there is an anomaly in appointment an aggrieved member could seek to raise the issue on the basis that the Constitution (in effect the Commissioner’s Standing Order) was not complied with but that would not affect the validity of a person appointed by the Commissioner or his delegate pending a further decision. An inquiry or proceedings may make adverse comments about RFS administration if it turns out that the Commissioner’s directions (as set out in the Service Standards including Standard 2.1.2 relating the Constitution) have not been followed, but that would be reflection on the RFS, not the member appointed.

Provided those appointed are members of the RFS (s 20) then the fact that they have been appointed to that office by virtue of Service Standard 2.1.4 Appointment of Field and Group Officers [3.15] and [3.16] or by any other means won’t affect their potential personal liability.

Field officers, Captain, Senior Deputy Captain, Deputy Captain are protected as per the service standards even if they have not been elected at an AGM with a quorum of members.

Categories: Researchers

Use of arborist slingshot by NSW SES

Michael Eburn: Australian Emergency Law - 2 February, 2020 - 11:21

Today’s question relates to the use of an Arborist Slingshot by members of NSW State Emergency Service. I’m told:

Many NSW SES Units have an Arborist Slingshot which is used for getting a line over a roof, tree branch, flooded creek etc. Because Slingshots are classed as a prohibited weapon we had until recently a permit issued by NSW Police to allow their use.

The permit holder was our former Deputy Commissioner who retired late last year, so until a new permit is arranged their use has been suspended.

I’ve been told that we may not get a new permit due to the legal risks or liability to the permit holder, and I was wondering if you could explain what these might be?

We have quite strict procedures around their use, training and secure storage, but if one was used to commit an offence (be that by an SES member or member of the public who somehow gets access to one) then presumably they would be responsible and charged, but what are the implications for the actual permit holder?

I was also provided with a copy of:

Section 8 of the Weapons Prohibition Act 1988 (NSW) says (emphasis added) that a permit:

Authorises the holder of the permit to possess or use a prohibited weapon of the kind specified in the permit, but only for the purpose established by the holder as being the genuine reason for possessing or using the prohibited weapon.

There are categories of permits that allow the holder of the permit or an authorised employee to possess a prohibited weapon, but they relate to weapons dealers and theatrical weapons armourers and are not relevant to the SES that is not in either of those business nor are volunteers employees.  There are other sorts of permits set out in the regulations but none of them are relevant to the SES.

Section 14 says:

(2) In addition to the conditions specified in a permit, a permit is subject to the following conditions:

(a) the holder must not allow any other person to possess or use any prohibited weapon in the holder’s possession if that other person is not authorised to possess or use the weapon…

 (c) the permit cannot be transferred to another person.

Regulation 7 of the Weapons Prohibition Regulation 2017 (NSW) says (emphasis added):

(2) For the purposes of section 9 (2) (b) of the Act, an application for a permit must be accompanied by the following information:…

(c) the arrangements for the storage and safe keeping of each weapon (including particulars of the premises at which each weapon is to be kept).

(3) An application for a permit that confers authority on persons (in addition to the permit holder) who are specified in the permit must provide the following information in respect of each additional person proposed to be specified in the permit:

(a) full name,

(b) residential address,

(c) date of birth,

(d) employee authority number (if applicable).

The permit issued to the NSW SES

The permit issued to the NSW SES says that the permit holder is Mr Newton. The permit says (emphasis added):

This permit authorises the permit holder and any current NSW State Emergency Service personnel to possess the prohibited weapon listed in this permit for use as part of the Service’s response to all requests for assistance.

This is clearly more than the authority in s 8 in that it purports to authorise people other than the permit holder.  It is not clear that the Commissioner of Police can give that sort of permit. As noted, s 8 says that the permit authorises the permit holder and only one person was named as the permit holder.  Section 14(a) says the holder of the permit cannot authorise anyone else to carry the weapon ‘if that other person is not authorised to possess or use the weapon’. It might be implied that the authority in this permit is that authority but as noted, it’s not clear.  I would suggest, given that only two class of permits appear to extend to employees, that the authority in the ‘other’ person must be their own permit or other authority.

The permit goes onto say:

  1. The permit holder must ensure Level 1 safe keeping requirements, as prescribed by section 32B of the Weapons Prohibition Act 1998, are maintained for the prohibited weapons to which this permit relates…
  2. The permit holder must ensure the safe handling and use of weapons at all times.

Those obligations are upon the permit holder. They do not say the permit holder must take ‘reasonable measures’ or the like.  If an SES member were to misuse the weapon that member will be accountable for his or her actions and may commit a criminal offence.  But the fact that the permit holder has not ‘ensured’ the safe handling and use of the weapons or that the weapon was used contrary to the permit issued in his name, would also make that permit holder guilty of an offence (s 7(2)(b) and 32A).

The permit gives the storage address as ‘approved safe storage where no access is available to non NSW State Emergency Service personnel…’.  That is not the detail required by regulation 7(2).

The authority to possess the weapon is said to extend to ‘any current NSW State Emergency Service personnel’.  There is no suggestion that it is limited to a list of named individuals where the application has included the name, date of birth, address and employee number for each member.

Further information

In this blog I write my opinion based on the law.  I don’t like to check with others to see if they agree. But having received the original question, but before I could post my answer, my correspondent wrote saying

The following update has just been provided by a senior SES staff member:

part of the problem in fact all of the problem is that they classed as prohibited weapons and require a licence. In the past the licence was held by one person so if anyone used them in a way that injured or killed someone the licence holder is responsible. Licences must be held by individuals and not groups or units and the sling shots held in lockable cabinets with only the licence holder have access.

So there is a whole of Government and legislative change that needs to occur. It’s not a simple process and very complicated to navigate.

I agree with that.

Discussion

The Prohibited Weapons Act provides for a person to be authorised to use a prohibited weapon by the issue of a permit. At least two permits allow that authority to extend to employees but they are not relevant to the SES as the SES is not engaged in that work and in any event, volunteers are not employees (even if they are ‘workers’ for the purposes of the Work Health and Safety Act).

It appears to me that the permit issued on 6 July 2016 was not authorised by law.  The permit extends beyond the permit holder and does not contain the details required by the regulations.

The conditions of the permit are personal to the permit holder.  If one of the weapons ‘was used to commit an offence (be that by an SES member or member of the public who somehow gets access to one) then presumably they would be responsible and charged’ but the permit holder could also be guilty of offences relating to the safe keeping of the firearms and their use.

Conclusion

It would appear to me that the licence issued to the SES is not consistent with and therefore was not authorised by the Weapons Prohibition Act 1988 (NSW) (though no doubt the officer who issued it thought it was).

I agree with the ‘senior SES staff member’ that ‘Licences must be held by individuals and not groups or units and the sling shots held in lockable cabinets with only the licence holder have access.’  To issue the sort of permit the SES want would require a change to either the Weapons Prohibition Act 1988 (NSW) and/or the Weapons Prohibition Regulation 2017 (NSW).

Categories: Researchers

Breaching patient privacy to tell a good news story

Michael Eburn: Australian Emergency Law - 1 February, 2020 - 13:12

Today’s correspondent has:

… questions regarding social media posting…

I have seen a post … from NSW Ambulance this evening which displays photos of the scene paramedics attended, the suburb of the incident and the medical complaint of the person they attended. While I understand they are telling the public about some of the challenges faced by emergency services, I believe it has the ability to identify the individual.

  • With the big focus on privacy would it be illegal for a paramedic or a government agency to share the level of information that is in the post?
  • Also if the photographer or person posting the image is a paramedic could there be issues with breaching AHPRA code of conduct and/or social media policies?
  • If the post doesn’t currently breach any privacy issues what level of information would be required either through images or captions to breach privacy laws?

I make assumption for the purpose of this question the patient hasn’t granted permission to use the photo and/or the land owner/operator hasn’t granted the permission either.

I have written on the growing tendency of emergency services to release information regarding scenes they are attending.  This is particularly concerning when it comes to ambulance services and paramedics.  See in particular

My correspondent provided the URL to the post where NSW Ambulance says:

Our crews have to attend to patients in pretty difficult environments. Today was another one of those moments. This time in [suburb], Sydney.

Paramedics were responding to a critically ill patient that was in … [a distinctive environment that is photographed]. The [person of an identified gender] had recently suffered a [medical complaint].

Four crews and five flights of stairs later paramedics reached the [person]. [The person] was taken to [a] Hospital in a [described] condition.

Just another day where our paramedics are going to extremes to provide quality patient care.

Now I’ve put it there so you can see the sort of detail that is reported but I’ve tried to remove the identifying material but you can infer that it said the name of the suburb, described by name and photo where the person was found, identified the complaint and the hospital where the person was taken as well as identifying the patient’s gender and condition (stable, critical etc).  Any number of people may have been able to identify the person or, if they knew the person get details of the patient’s condition from that post.

Discussion

In my view that sort of post is not legal. It is a breach of privacy laws.  That patient did not ring or require an ambulance to give the ambulance service a promotional opportunity.  An ambulance was required as the person needed urgent care for a medical condition.  The ambulance service got that information, first by a triple zero call and then by paramedics actually asking the patient questions and observing the patient. It was health information.

Health information is (Health Records and Information Privacy Act 2002 (NSW) s 6):

(a) … information or an opinion about:

(i) the physical or mental health or a disability (at any time) of an individual, or …

(iii) a health service provided, or to be provided, to an individual, or

(b) other personal information collected to provide, or in providing, a health service…

Information about this person’s medical condition is information about the patient’s ‘physical … health’ as is information about his condition – stable, critical etc.  Information about the hospital that they were transported to is information about ‘a health service provided, or to be provided’.  Information about the patient’s gender is ‘other personal information’.  Giving details about where and in what circumstnaces the patient was found means the information is not de-identified

The Health Privacy Principles (set out in Schedule 1 to the Health Records and Information Privacy Act 2002 (NSW)) say that information should only be used for the purpose for which it was collected (Privacy Principle #1 and #10), ie to provide a health service, not to promote the services of the Ambulance service.  Publishing this data is to use this patient as a ‘means to an end’ (ie a way to tell the ambulance service story).

If the person making the post is a paramedic then yes I think there could be disciplinary action.  The Paramedicine Board’s Code Of Conduct: interim (June 2018) says (p. 6) that paramedics:

… must be ethical and trustworthy. Patients or clients trust practitioners because they believe that, in addition to being competent, practitioners will not take advantage of them and will display qualities such as integrity, truthfulness, dependability and compassion

To go and post photos and descriptions of the patient’s condition is, I suggest not being ethical or trustworthy and is taking advantage of the patient for the ambulance service’s benefit.  Further (p. 9):

A good partnership between a practitioner and the person they are caring for requires high standards of personal conduct. This involves:  …

(c) protecting the privacy and right to confidentiality of patients or clients, unless release of information is required by law or by public interest considerations

There is no public interest in disclosing information about a particular patient remembering there is a difference between ‘public interest’ and ‘things that interest the public’.

Applying Baron and Townsend’s ‘Intention-to-Tweet Decision Matrix’ one would have to say this should not be subject to a tweet or any social media publication. The post promotes the service (not the patient’s interests) and tells readers of a specific incident. As Baron and Townsend say ‘This is exploitive: Do not Tweet’ (or I suggest, post to Facebook). Even if it passed that first step it contains ‘Photo(s) from the scene’, the location of the incident, the patient’s gender and the mechanism of illness. On their matrix that would give it 7 points, they say ‘3 or more points = Do not tweet’ (or I suggest, post to Facebook).

Conclusion

The post I’ve been referred to is, in my view, indefensible. I cannot see how the ambulance service could defend its position if there was  a complaint of breach of confidentiality or an action for compensation if it lead to loss (eg if an estranged family member now knew things that the patient did not want them to know).   To turn to the questions:

  • With the big focus on privacy would it be illegal for a paramedic or a government agency to share the level of information that is in the post?

Yes, I think it is a clear breach of the Health Records and Information Privacy Act 2002 (NSW).  I haven’t discussed common law obligations of confidentiality but I think they would be breached too.

  • Also if the photographer or person posting the image is a paramedic could there be issues with breaching AHPRA code of conduct and/or social media policies?

Yes, I think it would be a clear breach of the Paramedicine Board’s Code Of Conduct: interim (June 2018).  Registered paramedics should be resisting their employer’s demand to turn patients into a ‘good news story’.

  • If the post doesn’t currently breach any privacy issues what level of information would be required either through images or captions to breach privacy laws?

That question does not require an answer as I think it does breach current privacy laws.

 

 

 

 

 

Categories: Researchers

Time frame for disciplinary action

Michael Eburn: Australian Emergency Law - 1 February, 2020 - 12:22

Today’s question is

When a volunteer member of the NSW RFS has been stood down as per service standards  is there a requirement on the part of the RFS to start an investigation in a given time frame ,IE one week,  3 weeks ,etc.

There is no specific time frame set out in Service Standard 1.1.2 Discipline (v. 4, 21 September 2016).  This service standard refers to

  • Service Standard 1.1.7 Code of Conduct and Ethics
  • NSW RFS Fact Sheet Natural Justice
  • Managing Volunteer Discipline*; and
  • Conducting a Volunteer Discipline Investigation*

I cannot review the RFS Fact Sheet Natural Justice, Managing Volunteer Discipline* or

Conducting a Volunteer Discipline Investigation as they don’t appear to be on the RFS webpage.  I would be surprised if they gave specific time limits.

The RFS Code of Conduct says (Service Standard 1.1.7 Code of Conduct and Ethics, (v. 4.1, 2 December 2016), [3.5]) says:

… all members must:

  • act honestly, in good faith, reasonably and with integrity at all times when dealing with members of the community, stakeholders and fellow members;
Discussion

The reason why any agency would be reluctant to impose time limits is that eveyr case is different. A very serious allegation of an immediate and serious risk to an individual or community may require a member to be suspended pending detailed investigation and consideration of whether matters should be referred to police.  Other matters may be clear cut.  Where it may be appropriate to start formal proceedings within a week in some cases, it would not be appropriate in others.

Equally one has to consider availability of witnesses, other demands on the RFS (eg senior officers, during the 2019/2020 summer probably have other things on their minds) and the request from the affected member for time to allow evidence gathering and legal advice.

The normal rule would that these have to be done in a timely way.  The critical issue from the Code of Conduct and Ethics is the need to act ‘in good faith’ and ‘reasonably’.  If proceedings are delayed for improper reasons, eg by not resolving an issue a member remains suspended then that would be a breach of that Code of Conduct.

Accordingly an officer responsible for managing disciplinary proceedings should be acting to move the matter along in a ‘reasonable’ timeframe.

 

Categories: Researchers

Declared state of emergency in the Australian Capital Territory

Michael Eburn: Australian Emergency Law - 1 February, 2020 - 11:56

A state of emergency has been declared pursuant to the Emergencies Act 2004 (ACT) 156.  Details can be found on the Emergency Services Agency’s website at https://esa.act.gov.au/state-emergency-place-act or you can read the formal declaration here – Emergencies (State of Emergency) Declaration 2020 (No1) (31 January 2020).

The ACT Chief Police officer has been delegated to exercise emergency powers under s 160A (see Emergencies (Emergency Controller) Delegation 2020 (No 2) (31 January 2020)).  The ACT Chief Police Officer has, in turn, delegated his authority to all police and protective service officers (Emergencies (Chief Police Officer) Delegation 2020 (No 2) (31 January 2020)).  That means all ACT police and protective services officers can:

(2) For the management of the declared state of emergency…

(a)            direct the movement of people, animals or vehicles within, into or around the area to which the state of emergency applies (the emergency area); and

(b)           give directions regulating or prohibiting the movement of people, animals or vehicles within, into or around the emergency area; and

(c)            direct, in writing, the owner of property in or near the emergency area to place the property under the control, or at the disposal, of the emergency controller; and

(d)           direct a person to give information, answer questions, or produce documents or anything else, reasonably needed; and

(e)            take possession of any premises, animal, substance or thing in or near the emergency area

 

 

Categories: Researchers

FR(NSW) moving out of a fire district

Michael Eburn: Australian Emergency Law - 28 January, 2020 - 17:00

Today’s correspondent says:

A FRNSW officer recently told me that Fire and Rescue Act (NSW) allows him ‘ to go wherever and whenever he wants to protect life, property, and environment, and that the Rural Fires Act and the Rural Fire Service is irrelevant to him, even if the fire is in a Rural Fire District.

The Fire and Rescue Act seems to have two sections of relevance with respect to FRNSW attendance at fires in Rural Fire Districts;

5A   General functions of Commissioner
(3)  The Commissioner is authorised to take measures anywhere in the State for protecting persons from injury or death and property from damage, whether or not fire or a hazardous material incident is involved and, in the case of a fire, it does not matter whether or not the persons are, or the property is, within a fire district.

And;

20   Fires outside areas to which Act applies
(1)  The Commissioner may permit any members of a fire brigade, with engines and appliances, to go beyond the limits of any fire district for the purpose of extinguishing any fire.
(2)  In such a case the provisions of this Act apply to the fire and to anything done at the fire as if the fire were within a fire district.

However, Rural Fire Districts are constituted by section 6 of the Rural Fires Act, and that Act has this to say;

38   Functions of fire control officers
(1)  A fire control officer appointed under this Part has all the powers and immunities conferred on an officer in charge of a rural fire brigade.
(2)  A fire control officer:
(a)  has the supervision and direction of the functions exercised by or under this Act by all rural fire brigades and groups of rural fire brigades in the rural fire district for which the fire control officer has been appointed and of the officers of the brigades, and
(b)  has the right to use any fire fighting apparatus in the rural fire district other than fire fighting apparatus under the control of the authority responsible for managed land, ….

Now my questions…

As Rural Fire Districts are constituted by the Rural Fires Act, does that Act have a precedence over the Fire and Rescue Act in respect of fires and other incidents in Rural Fire Districts? (aside from incidents where FRNSW is the combat agency, eg HAZMAT)?

Does section 38 of the Rural Fires Act give effect to the FCO having both the authority in 38(1) and 38(2a) and the power in 38(2b) to use (or conversely, not use) a FRNSW appliance(s) that has arrived at a fire in a Rural Fire District as he/she may or may not require? I understand the authorities for ‘managed land’ are the NSW Parks and Wildlife Service, the Forestry Corporation of NSW and NSW Dept of Planning, Industry and Environment (Crown Land).

At a fire or other applicable incident in a Rural Fire District, if first arriving, I understand a FRNSW appliance may commence operations as per the Fire and Rescue Act, however I also understand that once the RFS arrive and assume incident control, the incident as a whole will fall under the Rural Fires Act and the Fire and Rescue Act will then only be relevant to internal matters to the FRNSW members present (eg discipline, liability)?  If the RFS are first arriving at the fire or other applicable incident in a RFD, I understand that the RFS will always have control as per the Rural Fires Act and that subsequent attending FRNSW appliances are subject to that control?

Anything further on this that I may have overlooked?

The fundamental position is that agencies should work together. Any FR(NSW) officer who says ‘the Rural Fires Act and the Rural Fire Service is irrelevant to him, even if the fire is in a Rural Fire District’ has missed the memo on inter-agency cooperation.

Sections 5A and 20 of the Fire and Rescue NSW Act 1989 (NSW) quoted above are permissive; that is, they give Fire and Rescue NSW (FRNSW) permission but not necessarily authority. Section 5A sets out the functions of the Commissioner and s 5A(3) says that he or she can perform those functions anywhere in the state and s 20 says that the Commissioner can do that by despatching FRNSW brigades outside a Fire District.  Section 5A(4)(d) says that the Commissioner ‘is also authorised to … (d) assist, at their request, members of … the NSW Rural Fire Service … in dealing with any incident or emergency’.

When I say a section is ‘permissive’, recall a comment that I have made previously: as a rule of thumb (that is, a rough guide, not 100% accurate), a natural person can do anything they like unless there is a law that says they cannot. On the other hand, government agencies cannot do anything unless there is a law that says they can. The Fire and Rescue Act 1989 (NSW) s 5 defines Fire Districts. Section 5A(1) says (emphasis added) ‘It is the duty of the Commissioner to take all practicable measures for preventing and extinguishing fires and protecting and saving life and property in case of fire in any fire district.’ A retained firefighter who is also a lawyer would, rightly ask if despatched outside a fire district’ ‘can we do that?’; and ss 5A(3) and 20 says ‘yes we can’. But it does not give any explanation of what they are to do in that area.

The Fire and Rescue Act has to be read in context which includes the existence of the Rural Fires Act 1997 (NSW) and the State Emergency and Rescue Management Act 1989 (NSW) (the SERM Act).  The SERM Act provides for the creation of the NSW Emergency Management Plan (the EM Plan). ‘The State Emergency Management Plan has effect in the event of an emergency whether or not a state of emergency has been declared’ (s 13(2)). The EM Plan says (at [705]-[706]):

Individual agencies are identified in relation to specific hazards (known as a Combat Agency) and are responsible for controlling the response operations. Controlling the response involves the overall direction of activities being undertaken by participating agencies and individuals.

Combat Agencies have specific provisions within their governing legislation to carry out their respective functions. EMPLAN serves as a mechanism to facilitate support to such agencies. A Combat Agency Incident Controller is the single person/entity that is responsible for the control and coordination of emergency response measures undertaken within the extent of the authority of the agency as defined in the relevant Act and EMPLAN. They are the final authority in decision-making in relation to the incident or emergency within their area of responsibility…

The Rural Fire Service is the combat agency for fires within a rural fire district (EM Plan, Annexes 3 and 9; Rural Fires Act 1997 (NSW) s 9(1)(a)).

Now my answers…

As Rural Fire Districts are constituted by the Rural Fires Act, does that Act have a precedence over the Fire and Rescue Act in respect of fires and other incidents in Rural Fire Districts? (aside from incidents where FRNSW is the combat agency, eg HAZMAT)?

It’s not that the Rural Fires Act has ‘precedence’ over the Fire and Rescue Act, they have to be read together.  Together (along with EM plan) they say that the Rural Fire Service is the combat agency for fires in a rural fire district.  They can call on FR(NSW) for assistance and FR(NSW) can move out of a fire district to provide that assistance. (FR(NSW) can also move out of a Fire District to perform its other, non-firefighting tasks such as controlling a HAZMAT incident or providing rescue services where they operate the relevant accredited rescue unit).

FR(NSW) may be despatched to a fire outside a fire district because they are the closest and most appropriate fire service. When they turn out the brigade captain can exercise all of the powers that he or she would have within a fire district (Fire and Rescue NSW Act 1989 (NSW) s 20(2)). As first (and perhaps only) brigade on scene the FR(NSW) commander will necessarily be the IC for that fire. FR(NSW) may also be despatched to assist a RFS brigade, for example an RFS brigade may be called to a house fire in a village and call on the local FR(NSW) brigade to assist with structural firefighting. The RFS commander will be the IC for that fire and the FR(NSW) brigade are there to assist subject to the IC’s control and set objectives.

One would hope that if FR(NSW) are first on scene and have commenced firefighting one would hope that the commander of an RFS brigade would report to the FR(NSW) IC and say ‘we’re here, what do you want us to do?’ rather than ‘we’re here and I’m now in charge so you need to report to me…’ (even if legally that is the case). I would hope the same would apply in reverse, if RFS are first on scene and have commenced firefighting one would hope that the commander of an FR(NSW) brigade would report to the RFS IC and say ‘we’re here, what do you want us to do?’ rather than ‘we’re here and I’m now in charge so you need to report to me…’ (noting that he or she would not legally be in charge in any event).

As a fire escalates and incident control is moved from the brigade on scene to an IMT then the RFS IC will be ‘the single person/entity that is responsible for the control and coordination of emergency response measures’ including the operations conducted by FR(NSW). Should the Commissioner make a declaration under s 44, then the Commissioner ‘is to take charge of bush fire fighting operations and bush fire prevention measures’ and (s 45):

… may give such directions as the Commissioner considers necessary to fire control officers, deputy fire control officers, officers of rural fire brigades, local authorities, officers or members of Fire and Rescue NSW, members of the NSW Police Force and other persons in connection with the prevention, control or suppression of any bush fire in the area or locality in which the Commissioner has taken charge or is taking measures under this Division.

Does section 38 of the Rural Fires Act give effect to the FCO having both the authority in 38(1) and 38(2a) and the power in 38(2b) to use (or conversely, not use) a FRNSW appliance(s) that has arrived at a fire in a Rural Fire District as he/she may or may not require? I understand the authorities for ‘managed land’ are the NSW Parks and Wildlife Service, the Forestry Corporation of NSW and NSW Dept of Planning, Industry and Environment (Crown Land).

Section 38 is quoted above. Critically it says (emphasis added):

(2) A fire control officer:
(a) has the supervision and direction of the functions exercised by or under this Act by all rural fire brigades and groups of rural fire brigades in the rural fire district for which the fire control officer has been appointed and of the officers of the brigades, and
(b) has the right to use any fire fighting apparatus in the rural fire district other than fire fighting apparatus under the control of the authority responsible for managed land.

Section 38(2)(a) is limited to ‘rural fire brigades’ so does not give that FCO authority over FR(NSW) brigades; but s 38(2)(b) does.

Section 38(2)(b) refers to any fire fighting appliance other than those operated by State Forests, National Parks and Wildlife Service, Rail Corporation New South Wales, Sydney Metro, Transport for NSW, Residual Transport Corporation of New South Wales, Transport Infrastructure Development Corporation or Rail Infrastructure Corporation or a water authority’ (Definition of ‘managed land’). It follows that the FCO has the right to ‘use’ fire fighting apparatus owned by FR(NSW) but presumably no FCO is going to commandeer the appliance, rather he or she will assign a task to FR(NSW).

Conclusion

The Fire and Rescue NSW Act 1989 (NSW) does not allow a FR(NSW) officer ‘to go wherever and whenever he wants to protect life, property, and environment’. It allows the officer to respond outside a fire district when authorised to do so by the Commissioner.

The response is subject to the Rural Fires Act, the State Emergency and Rescue Management Act as well as the Fire and Rescue NSW Act. When responding to a fire in a rural fire district, it is the Rural Fire Service that is the combat agency. The FR(NSW) commander may be the IC for that fire, either by default (they are the first, perhaps only, brigade one on scene and are exercising control) or by appointment. Where an RFS officer is the IC then it is the RFS officer who is ‘the single person/entity that is responsible for the control and coordination of emergency response measures’ including the tasks assigned to the FR(NSW). There is nothing in ss 5A or 20 that says the FR(NSW) officer can do whatever he wants or exercise any control over an RFS controlled fire. The RFS are in ‘control’, the FR(NSW) commander is in ‘command’ of the FR(NSW) resources.

Categories: Researchers

Prosecute all, or none?

Michael Eburn: Australian Emergency Law - 27 January, 2020 - 12:42

Today’s question comes from a volunteer who is facing disciplinary proceedings.  On this blog I do not give specific legal advice but can answer generic questions though no-one should act on the information here in a specific case without obtaining legal advice on their own position.  I have edited the question to make it sufficiently general. I provide the answer as I’m sure it is of general interest but as I say cannot or should not be relied on in specific cases, other than as a starting point.  The question is:

I note that in the public media there any number of fire service personnel who have spoken in a way or behaved in a way that may have breached service standards on public comment.

Can the service choose to take disciplinary action against one member for a possible breach of the service standards mentioned above and ignore another member for a possible breach? Or is the service required to apply the law {service standards} to all?

If the service does decide to ignore a possible breach of the service standards can a member rightly claim unfair treatment –that is “you prosecuted me but not them”?

The question needs only to be stated – ‘can a member rightly claim unfair treatment –that is “you prosecuted me but not them”? – to realise the answer has to be ‘no’.

Let’s use the criminal law as a starting point.  We all know that many crimes don’t get punished.  Sometimes because police cannot find the offender and sometimes they chose not to prosecute.  One person gets a speeding ticket; the next gets a warning.  Before the court the question is ‘did the accused commit the offence charged?’ and the fact that someone else, somewhere else, may also have committed the same offence but was not charged is irrelevant to answering that question.

One problem with the suggestion that ‘a member rightly claim unfair treatment –that is “you prosecuted me but not them”’ is that it sets the member up as ‘judge in their own cause’.  They are acting as judge to say what they have perceived as similar or the same to their own case is indeed similar or the same.

An investigating officer, whether a police officer or a service officer, has to look at a what happened or what was done, and the rule that may have been breached and ask ‘does that conduct breach the rule?’  That involves all sorts of questions (depending on the rule) of intent, context and in the case of media, a balance of free speech rights against other rights and interests.  A person may say ‘that case appears to me to be a possible breach’ but the investigating officer who has indeed investigated and therefore knows more that there was no breach.

Even if there is a breach every enforcement officer has discretion. Police don’t have to arrest everyone who commits an offence, they can (in some cases) issue an infringement notice, or a caution, or take no action.  In deciding what to do they of course weigh up the seriousness of the alleged offence, the circumstances of the offending and the offender, what other factors suggest that the person may not do it again.  (Many young people will have learned that the real offence is ‘not show proper respect’.  If you have a ‘good family’ or come from a ‘good school’ there may be more lenience shown as police think your family or school will set you on the straight and narrow).  All of that is considered when making a decision.  Again the person who wants to say it’s ‘unfair treatment –that is “you prosecuted me but not them”’ is necessarily saying ‘and our cases are relevantly similar’ when he or she may not know that – again being judge in one’s own cause.

In criminal law what has been done to others is relevant in sentencing, so courts do look at sentencing decisions to give parity – the judge’s talk about the ‘tariff’ for a particular offence.  Judges do not have to give the same penalty to each offender because each offender and each offence is different, but they do have to spell out their reasons and in particular if they are giving  a penalty that appears tough, or lenient, compared to the accepted ‘tariff’.

But that is the issue. Every case is different. To set up the argument that it’s ‘unfair treatment –that is “you prosecuted me but not them” would be to force the decision maker to investigate those earlier, allegedly similar cases to determine whether it is in fact unfair.  Whether that applies in a Service or in the criminal law the system would grind to a halt in irrelevant investigations.

I’m reminded of a joke that I’ll try to retell.

 Joe is speeding down the highway and is passed by several cars travelling even faster.  The last car in the line is a police car. The driver activates the lights and sirens and Joe pulls over and is issued a speeding ticket.  He says to the officer ‘but what about all those other cars that were going even faster?’ 

The constable sees the fishing rods on Joe’s roof and the fishing kit on the back seat. He says ‘you like to go fishing I see’. ‘Yes’ says Joe.  The constable asks ‘and do you ever catch them all?’

The fact that those other drivers were committing a more serious offence, on the same road, on the same day, in front of the same officer, will be no defence for Joe when he thinks about paying or contesting the traffic infringement. If Joe takes the matter to court the only question will be ‘were you speeding?’ not ‘were others speeding and did they get charged too?’

Of course rules have to be interpreted and understood. If there is a pattern of tolerating certain behaviour then that could form an argument that it has been accepted that conduct of this sort is not a breach of the rule; but that is a question of what the rule means which is not the same as the question I was asked.

Conclusion

Can the service choose to take disciplinary action against one member for a possible breach of the service standards mentioned above and ignore another member for a possible breach? Answer ‘Yes’.

If the service does decide to ignore a possible breach of the service standards can a member rightly claim unfair treatment –that is “you prosecuted me but not them”?  Answer ‘No’.

If that argument were to succeed authorities would have to prosecute everyone, or no-one.  And they’ll never ‘catch them all’ and not all breaches are the same.

Categories: Researchers

Respond to emails or be bound by the contents?

Michael Eburn: Australian Emergency Law - 25 January, 2020 - 10:36

Today’s question comes from a volunteer firefighter who often speaks:

… to salaried staff on the phone on all manner of issues.

On the conclusion of the phone call I will then send an email to the staff member in point form confirming the substance of the conversation.

Is there a legal requirement for the staff member to reply to the email, regarding the conversation, or can it be ignored?

One would think the answer would be ‘there is no legal requirement to reply; the email can be ignored’ but it’s actually not that straightforward.

First I’ll make an assumption that we’re talking about a contentious issue, that is the phone call is not merely a social call.  Second, I’ll also assume that the result of the conversation is that someone agrees to do, or not do, something or there is some other form of anticipated follow-up action promised or expected as a result of the call.

It is always wise to make contemporaneous notes of conversations over contentious issues.  Legal Practice 101 tells all new lawyers always write a file note.  A contemporaneous record can be used later when someone asks: ‘and how is it that you can recall the details of a conversation you had 10 months ago?’.  The answer is ‘I’ve looked at the notes I made at the time and that allows me to recall the conversation’ (see The value of file notes (June 10, 2016) and Record keeping and report writing (February 14, 2019)).  Having written a file note you need to keep it somewhere.  Attaching it to, or putting it in, an email is not a bad storage system.

The email gets sent (and another assumption – I assume it is sent to the correct email address and is actually received) then what?  The recipient has three options; they can:

  1. Respond positively – “yes I agree that your notes accurately reflect our conversation and what each of us promised to do”;
  2. Respond negatively – “no I do not agree that your notes accurately reflect our conversation, I did not promise to do X or not do Y, I still expect you to do A and not B”; or
  3. They can choose to not respond at all.

I’ll now invent a scenario.  Suppose a member speaks to a senior salaried officer because there is a shortfall of money in a brigade account for which the member is responsible. During the conversation the member denies any wrongdoing but admits there is a shortfall.  The member agrees to make up the shortfall (let’s say $100) but says ‘but I don’t admit I did anything wrong and I understand you are going to do a further investigation and if you are satisfied that I did nothing wrong you’ll give me my $100 back’.  The salaried officer says ‘yes that’s right, I’ll look into it and if it is as you say it is, we will give you that money back.  I’ll get back to you within a month’.  The member makes notes of that conversation, sends them to the salaried officer and also deposits the $100.  Then suppose, a month later, the member receives notice, from that same salaried officer, that he is satisfied that the shortfall was not due to any misbehaviour by the member and the circumstances that caused it to arise were as the member said it was in that phone call and recorded in the notes, but the salaried officer says ‘but the account was your responsibility and even though you did nothing wrong, we’re not going to refund the money’.

Let us return to the email notes.

(1)        If the salaried officer had replied saying ‘yes I agree with your conversation’ that would be strong basis to demand the refund of the money.  There was an express agreement that the money would be refunded “if it is as you say it is.”

(2)        If the original salaried officer had replied saying ‘no that is not what we agreed to’ then the member would know that there was a different understanding and would know to act accordingly. Presumably in that case he or she would not deposit the $100 but would wait to see if the service could establish that he or she owed a debt.

(3)        What happens if the salaried officer does not reply to the email?  Silence is not acceptance (Felthouse v Bindley [1862] EWHC CP J35) so the absence of a reply does not mean that the salaried officer is deemed to have accepted the contents of the note are true and accurate or that their silence creates a binding agreement. But the absence of reply could give rise to the doctrine of equitable or promissory estoppel (fancy language to say the salaried officer cannot now deny the contents of the email (ie they are ‘stopped’) because it would be unfair (inequitable) to do so.

In Waltons Stores (Interstate) Ltd v Maher [1988] HCA 7 the parties were in negotiations for lease.  Whilst the terms of the lease were agreed upon there was no formal exchange.  The conduct of proposed tenant led the owner to believe that exchange would occur and the owner changed its position, to its legal detriment, based on that belief.  Brennan J said (at [12] of his judgment):

A party who induces another to make an assumption that a state of affairs exists, knowing or intending the other to act on that assumption, is estopped from asserting the existence of a different state of affairs as the foundation of their respective rights and liabilities if the other has acted in reliance on the assumption and would suffer detriment if the assumption were not adhered to

(For latest case on estoppel see Crown Melbourne Limited v Cosmopolitan Hotel (Vic) Pty Ltd [2016] HCA 26 ).

How does that apply here? The agreement to repay the money ‘induces’ the belief in the member that a state of affairs exists – if the investigation confirms that it was not the member’s fault, they will refund the that the $100.  Depositing $100 is acting to the member’s detriment; not only do they lose the $100 they also lose the position of being able to deny that they owe a debt.  If they did not pay the money and their fire service claimed there was a debt due they would have to sue for that money. By depositing the money, if the member wants it back, he or she would have to sue.  A clear legal detriment.

The member has acted on ‘an assumption that a state of affairs exists’ and the salaried officer ‘knows’ that the member was acting on that assumption because the email he or she received told them that.  In the circumstances it would be wrong to now deny that there was an agreement to repay the money in the very circumstances that have arisen.  And it would be wrong to argue that the notes do not reflect what was said because the officer had the chance to reply and say ‘no you misunderstand my position – the state of affairs you believe exists do not exist’.

Now it’s not a clear cut argument, just as silence is not acceptance a failure, or a choice not to respond may not ‘induce’ the member to believe that their version of the conversation is correct (in the way a positive reply does) but it is at least argument – ‘You knew that I was depositing the money because I was relying on your promise to repay it and you knew that was my assumption because it was in the notes I sent you and you did not reply to tell me that my understanding was wrong.  I acted on that assumption, you knew I was acting on that assumption, you cannot now deny that the agreement that I recorded was in fact the agreement we reached’.

Where it’s just a file note of the conversation, mere silence would not be seen as endorsement of what the note says.  In those cases the member may have their version of the conversation, the salaried officer their own version (perhaps recorded in their own file note) and the mere fact that the member sent a version that the officer disagreed with would not put the officer into a position of being able to deny the conversation. An email that say ‘you agree you are a degenerate jerk who has abused your position to harm me’ would not warrant a response, even if the recipient does not agree with it.  Mere silence is not acceptance.

The test is that the party (in this context the salaried officer) must induce (and proving silence was an ‘inducement’ would be more difficult than a positive reply, but I suggest not impossible) another (in this context the member) to make an assumption that a state of affairs exists, knowing [the member] would act on that assumption to the member’s harm or detriment.  It has to induce the member to do, or not do something that he or should would otherwise have not done, or would have done, if they did not believe that the relevant ‘state of affairs’ did exist.

Conclusion

There is no legal obligation to reply to an email that contains a summary of a conversation but depending on the nature of the conversation, particularly where the notes indicate that the author is going to do something, or not do something to their detriment because they believe there has been a promise or commitment from the other person, then there could be legal implications arising out of the response, including a failure to respond.

Categories: Researchers

RFS and donated funds

Michael Eburn: Australian Emergency Law - 24 January, 2020 - 22:01

I’ve written on the massive fundraising that was lead by Celeste Barber and led to a $51m donation to the NSW Rural Fire Service Brigades and Donations Fund – see

I note that today the Rural Fire Service has made an announcement about how they plan to use the money – see Rural Fire Service Donations Update (January 24, 2020).  In that update they say:

Through the NSW RFS and our Donations Trust, we’ve identified four key areas to focus on. These are:

  • Rebuilding – taking immediate action to rebuild and replenish, including the establishment of the $10 million fund for volunteer brigades, and providing emergency funding for brigade items which have been damaged or destroyed.
  • Supporting – enhancing and extending our support of our members including volunteer welfare and their mental health, and consideration of a dedicated memorial for fallen volunteer firefighters.
  • Equipping – ensuring our brigades are equipped to protect the community, property and the environment, including improving technology and connectivity.
  • Improving – improving service delivery for members and the community such as education and training, emergency response and processes for volunteers.

These are a starting point and we’re looking forward to consulting with our volunteers on meaningful initiatives that will make a difference for our brigades and the community.

While donated funds may be used to accelerate or supplement existing programs, we want to make it clear that donation money won’t be used to replace funding that is normally provided by Government or usual funding sources. This is about delivering money to where it’s most wanted and delivers the best value for our members.

As for expectations that money would be diverted to other charities or other services they say:

We are still working through the details of some donations, including large online campaigns. Some of these involve complex issues and everyone is working hard to ensure the money goes where it was intended. Once these issues are worked through, we’ll have a better idea of how much money is available and what kinds of initiatives can be carried out.

In my earlier posts, listed above, I have noted (with input from professional colleagues) what some of those complex issues are, not least the limited nature of the trust deed. Certainly the 4 priorities that they have listed appear to be consistent with the trust deed. One hopes those that have donated see this is a worthwhile use of their contributions.

For those still hoping to see the money more widely distributed it remains the case, as the RFS admits, that these are complex issues. Whether they find a way to do that remains to be seen.

Categories: Researchers

Treatment outside ‘clinical scope’

Michael Eburn: Australian Emergency Law - 24 January, 2020 - 16:43

Today’s question is:

What are the implications of a paramedic performing a (generally considered safe) non-invasive procedure for a condition they’re familiar with but falls outside their clinical scope?

Here’s the specific scenario-

Pt presented to their GP with nystagmus, vertigo and nausea. GP surgery called for an ambulance. The crew then had the patient attempt the Epley manoeuvre.

The local clinical practise guidelines don’t cover vertigo nor the Epley manoeuvre.

The Royal Australian College of General Practitioners describes the Epley manoeuvre as a non-drug treatment for ‘posterior canal benign paroxysmal positional vertigo’. They say ‘General practitioners, patients, other medical practitioners and physiotherapists can administer the Epley manoeuvre’.  They also say ‘No serious adverse effects have been reported. Common side effects include vertigo and nausea (and sometimes vomiting) during the manoeuvre’.

To answer this question, however, the exact treatment in question is not really the issue.  The paramedic is providing treatment for a condition that ‘the local clinical practise guidelines don’t cover’.  The paramedic is not providing treatment that is contrary to the CPGs, but treatment for a condition that is absent from the CPGs.

The implications are that a registered health professional has to take responsibility for his or her decisions. There is no legally ‘defined scope of practice’ for paramedics. Good paramedic practice requires ‘recognising and working within the limits of a practitioner’s competence and scope of practice, which may change over time’ (Paramedicine Board Code of Conduct (Interim) June 2018, [2.2](a)).  But the ‘scope of practice’ is not solely defined by the employer.

Maintaining and developing knowledge, skills and professional behaviour are core aspects of good practice. This requires self-reflection and participation in relevant professional development, practice improvement and performance-appraisal processes to continually develop professional capabilities. (Code of Conduct [7.1]).

Clinical Practice Guidelines are guidelines and won’t cover every situation and sometimes paramedics will have obtained extra knowledge and training that they can use to deliver patient centred care (Code of Conduct [2.2](b)). If the paramedic knows what the Epley (or some other) manoeuvre is, can recognise when it is indicated and is competent to perform it then it is within ‘the limits of a practitioner’s competence and scope of practice’. But he or she is responsible for the decision making and if it turns out that they were not competent or that the treatment was not indicated (or worse, was contra-indicated) and the patient suffers a harm, then he or she will have to be prepared to justify why their decision was a reasonable decision in the circumstances.

In terms of the person’s employment he or she may be subject to internal discipline regardless of the outcome for the patient, though hopefully an ambulance service wants a good outcome for the patient. If it turns out it was a good outcome that meant the patient did not need transport to hospital, then that is providing ‘good service’ and probably everyone’s happy.  The implications then are the paramedic gets a pat on the back for using initiative and delivering good care.

In terms of liability I would suggest that if the patient suffered a harm the employing ambulance service would be liable.  And don’t start the rhetoric that they would not be because the paramedic did not follow the scope of practice.  The issue from the plaintiff/patient’s point of view is:

I called an ambulance; an Ambulance came; a person who was clearly an employee of the ambulance service provided health care which is the very job he or she is employed to do; he or she was negligent; I suffered harm; the employer is vicariously liable.  How do I prove they were negligent? They acted outside their practice guidelines when a reasonable paramedic would not have done that.

The departure from the CPGs is the proof of negligence and the employer is vicariously liable when the employee is negligent (see Queensland Court of Appeal finds paramedic was negligent in treatment of extreme asthma (May 11, 2019; noting this case is making its way to the High Court) and State of Queensland STILL liable for paramedic negligence (October 25, 2017).  The departure is what makes the employer liable, not what allows them to get out of liability.

It is only if the departure was so gross and extreme that it could be said the paramedic was on a frolic of their own (eg by charging the patient a fee to provide an alternative service) that vicarious liability can be avoided.  But do remember that schools are being held liable for the sexual abuse of students by teachers when that is clearly not part of the job description.  In Prince Alfred College Incorporated v ADC [2016] HCA 37, French CJ, Kiefel, Bell, Keane and Nettle JJ said (at [39]-[41] and [81]):

Vicarious liability is imposed despite the employer not itself being at fault…

The traditional method of the common law of confining liability … is the requirement that the employee’s wrongful act be committed in the course or scope of employment…

Difficulties, however, often attend an enquiry as to whether an act can be said to be in the course or scope of employment.

… the relevant approach is to consider any special role that the employer has assigned to the employee and the position in which the employee is thereby placed vis-à-vis the victim. In determining whether the apparent performance of such a role may be said to give the “occasion” for the wrongful act, particular features may be taken into account. They include authority, power, trust, control and the ability to achieve intimacy with the victim.

When a person calls for an ambulance it is the employing ambulance service that despatches the paramedic and particular features are that paramedics are in authority, exercise power, rely on trust and have the ability to be in intimate position with the patient.  What we’re describing here is not sexual assault of the patient, but the analogy is still good.  The paramedic arrives, the patient trusts the paramedic to provide good care and by being in uniform with the word ‘paramedic’ on their shirt they are being held out as a person who can be trusted, the paramedic is there in response to a call to the employer and is placed in that position of authority and trust by the employer.  If they harm the patient it is the employer (which, in every case other than NT and WA, is the state) that has the funds to pay; the paramedic does not.  The employer will be liable for the departure by the paramedic even though ‘the employer not itself being at fault’.

Conclusion

What are the implications of a paramedic performing a (generally considered safe) non-invasive procedure for a condition they’re familiar with but falls outside their clinical scope?

The paramedic has to take responsibility for his or her decision making. If there are no adverse consequences for the patient that may not mean much; it may even mean a nice thank you letter! However, regardless of the outcome, he or she may be subject to internal discipline and if their conduct is not good paramedic practice, he or she may be subject to professional discipline. One may think that’s unlikely if there are no adverse consequences but that is not the sole test. Sometimes a departure from procedure has to be sanctioned even if by sheer dumb luck it works out for the best.

If the patient is harmed, I suggest that the employer would be vicariously liable for any harm done, that’s not to deny that there may not be some push and shove between the employer’s insurer and the paramedics insurer, if he or she has one.

Where the treatment is something that can be done by patients and where ‘No serious adverse effects have been reported’ the risk of any adverse ‘implication’ would, I suggest, be very low.

Categories: Researchers

Mandatory reporting by treating paramedics

Michael Eburn: Australian Emergency Law - 21 January, 2020 - 10:33

Today’s question revisits an earlier post – Paramedics and mandatory reporting (May 29, 2019)  where my correspondent says that I:

… suggested that under the current reporting arrangements. a student paramedic who was found by paramedics suffering a drug overdose may be subject to a mandatory notification.

Given the new guidelines for treating practitioners announced for 2020, https://www.paramedicineboard.gov.au/Professional-standards/Mandatory-notifications.aspx, would the scenario play out the same way? My reading is that the paramedics would need to establish a direct risk to the public, or intoxication while practising to meet the burden for a mandatory notification. So, hypothetically, if the student was found suffering a drug overdose during their University break, while not on placement or even studying, can a credible risk to the public be established from a single interaction with paramedics. Likewise, would this same scenario apply to a student who sought treatment from their GP for an addiction-related issue.

How would you suggest people apply the test of establishing a “risk to the public”?

The Paramedicine Board has announced that

In 2020, the requirements to make a mandatory notification are changing. The changes aim to support health practitioners to be able to seek professional advice about their health without fearing a mandatory notification…

The changes apply to the mandatory notification requirements for treating practitioners – they do not affect the obligations of other registered practitioners (like colleagues), employers or education providers.

Under the changes, a treating practitioner only needs to make a mandatory notification about their practitioner-patient if there is a substantial risk of harm to the public from impairment, intoxication while practising, practice outside of accepted professional standards or where there is sexual misconduct.

This means that health practitioners who do not pose a substantial risk of harm to the public can seek professional advice without fear of a mandatory notification.

The new guidelines are not yet in place.  A consultation paper was released on 11 September 2019 and the consultation period ended on 6 November 2019.  As part of that process Draft revised Guidelines for mandatory notifications about registered health practitioners and Draft revised Guidelines for mandatory notifications about health students were released.

Although this question is about a student, it is the Draft revised Guidelines for mandatory notifications about registered health practitioners that is relevant. The ‘… notifications about health students’ guideline is about ‘students who, by undertaking a clinical placement with an impairment, are placing the public at substantial or very high risk of harm’.  It specifically does not include reporting by treating practitioners (eg a paramedic who is called to assist a person who, by coincidence, is a paramedic student ‘suffering drug overdose during their University break, while not on placement or even studying’).

The ‘… notifications about registered health practitioners’ does deal with treating practitioners.  It says (p. 11-14):

The conditions for treating practitioners to make mandatory notifications are more limited than they are for other people…

You must make a mandatory notification as a treating practitioner if, while treating another practitioner as your patient, you form a reasonable belief that they are:

  • practising with an impairment
  • practising while intoxicated by alcohol or drugs
  • practising in a way that significantly departs from accepted professional standards, and
  • engaging in sexual misconduct in connection with their practice…

With the exception of concerns about sexual misconduct, you should make a notification only if you believe there is a substantial risk of harm. A substantial risk of harm is a very high threshold for reporting risk of harm to the public. This allows practitioner-patients to seek and have treatment for conditions without fearing mandatory notification…

You may also need to make a mandatory notification about a student only if the student, doing clinical training with a serious and unmanaged impairment, is placing the public at substantial risk of harm…

If an impairment is related to or is a major cause of intoxication or departure from professional standards, consider how effective the practitioner-patient’s treatment is when you are deciding if it meets the very high threshold for reporting…

You must make a mandatory notification if you form a reasonable belief that your practitioner-patient is placing the public at substantial risk of harm (a very high threshold for reporting risk of harm) to the public by practising while intoxicated by drugs or alcohol.

The critical first question is ‘Do you have a reasonable belief that, by practising while under the influence of alcohol or other drugs the practitioner is detrimentally affecting their practice?’.  The second question (see flowchart, p. 14) is ‘Do you have a reasonable belief that the intoxication is placing the public at risk of harm?’

Every situation is different but if a paramedic is called to a person who happens to be a paramedic student, and who is ‘suffering a drug overdose during their University break, while not on placement or even studying’ has to ask those questions and consider the factors in the guideline and shown below:

If you have no reason to think that the student has practised whilst intoxicated, if there is no reason to think that this anything other than an isolated short term incident rather than evidence of chronic persistent drug dependency then one might conclude there is no reason to believe that the person is or has practised whilst intoxicated or that their current intoxication is placing any patients at harm (given that, at the time, they are not practising).  In that case as a treating practitioner you would not be required to report the person to AHPRA.

The same questions and risk assessment would indeed also apply to a GP who was treating a paramedic student for drug dependency. If the GP was satisfied that the student was ‘highly reflective and insightful’, was complying with prescribed treatment, was not intoxicated when at work, then he or she would not need to report the student to AHPRA.  That conclusion would be consistent with the policy objective that ‘health practitioners who do not pose a substantial risk of harm to the public can seek professional advice without fear of a mandatory notification’.

I’m not sure if this conclusion is different to my earlier post.  In that earlier post I said:

I shall assume, without debating it, that identifying the student paramedic has deliberately overdosed does give rise to a reasonable belief that the ‘student has an impairment that, in the course of the student undertaking clinical training, may place the public at substantial risk of harm’.

In my answer I did not address the question of whether a ‘a suspected [voluntary] drug overdose’ would or could give rise to the necessary belief that the ‘student has an impairment that, in the course of the student undertaking clinical training, may place the public at substantial risk of harm’.  If the treating practitioner did not form the view that the patient’s intoxication gave rise to a belief that he or she was putting the public at risk, then there was no need to report the person to AHPRA. I did not address that question because I was addressing the question of whether a patient’s right to privacy was trumped by the mandatory reporting obligations where that belief did exist.  In that earlier post I concluded that the obligation to report took precedence over the obligation to maintain patient confidentiality.

The draft guideline, when adopted, raises the bar to give greater weight to patient confidentiality and gives significant detail on how to assess that risk.  It is still the case, however, that if the threshold belief of risk to the public is met, the obligation to report trumps the obligation to maintain confidentiality.

Conclusion

Remember that the draft guidelines are just that. When they are finalised and come into force, we are told sometime this year, people will need to familiarise themselves with the final version.

Assuming that the ‘in force’ guidelines will mirror the draft then a treating practitioner, GP or paramedic, will only need to report where he or she has a reasonable belief that,

  • by practising while under the influence of alcohol or other drugs the practitioner is detrimentally affecting their practice; and
  • that the intoxication is placing the public at risk of harm.

Can a credible risk to the public be established from a single interaction with paramedics?  I would suppose that would depend on the history taken, what was said by the patient and others at the scene and the paramedic’s observations.  It certainly could be possible if the student made admissions to practicing whilst intoxicated.

How would I suggest people apply the test of establishing a “risk to the public”? That question is answered, in detail, in the draft Guideline complete with examples.  I would suggest people study that and refer to it should the need arise.

Categories: Researchers

Setting policy and standards within the NSW RFS

Michael Eburn: Australian Emergency Law - 21 January, 2020 - 09:48

Today’s question is:

The New South Wales Rural Fire Service (RFS)  was formed by an act of Parliament, I believe the Rural Fires Act 1997. Does the Commissioner of the RFS have the power under the legislation to change any or all of the following or do they need to be changed by an act of Parliament, that is to say change the law.

1:        The service standards.

2:        Standard operating procedures.

3:        RFS policy.

The short answer is ‘yes the RFS Commissioner can change those things otherwise the RFS would be run by Parliament and that would be impossible’; but let’s look at more detail.

The Rural Fire Service is indeed created by an Act of Parliament (Rural Fires Act 1997 (NSW) s 8).  ‘The Commissioner is responsible for managing and controlling the activities of the Service’ (s 12).

The NSW Parliament does not want to be involved in the daily running of the RFS (or any other government department).  The legislature puts in place the architecture to establish the service, set out its functions and powers but then leaves it to the chief executive, in this case the Commissioner, to actually run the service.

With respect to service standards, s 13 says

(1) The Commissioner may from time to time issue written policy statements to members of the Service for or with respect to procedures to be followed in connection with the operation, management and control of the Service.

(2) Without limiting the matters with respect to which statements may be issued under this section, statements may be issued in respect of standard operating procedures, including procedures in respect of the following:

(a) fire reporting,

(b) operational co-ordination,

(c) operational planning,

(d) bush fire risk management planning,

(e) fire fighting assistance planning,

(f) standards of fire cover reporting,

(g) implementation of training standards,

(h) communications,

(i) brigade management,

(j) community education,

(k) protocols on relevant matters,

(l) health and safety.

(3) The Commissioner is, wherever practicable, to consult with the Advisory Council before issuing policy statements under this section.

The Commissioner is for all intents and purposes the relevant authority responsible for creating, managing and disbanding brigades (ss 15, 17, 20; Rural Fires Regulation 2013 (NSW) r 4; Service Standard 2.1.1 Formation and Disbandment of Brigades and Groups of Brigades and Service Standard 2.1.2 Brigade Constitution).  It is up to him, and not the Parliament to determine matters of procedure and policy within the RFS.

Conclusion

Standard operating procedures give effect to service standards and the Commissioner’s directions by indicating how the policy statements are to be made effective.  Creating Service Standards, SOPs and policy statements is fundamentally how the chief executive is ‘managing and controlling the activities of the Service’.

It follows that the Commissioner of the RFS has the power under the legislation to change any or all of the following:

1:        The service standards.

2:        Standard operating procedures.

3:        RFS policy.

Categories: Researchers

Making defibrillators compulsory in Victoria

Michael Eburn: Australian Emergency Law - 20 January, 2020 - 13:30

Today’s correspondent says he is

… a member of a large research society and late last year I suggested they purchase a defibrillator.  I got the ‘ostrich head in the sand’ response – public liability, no one trained and similar excuses.  I am in the process of drafting a letter to the Committee pleading for them to reconsider.

I was wondering if you have any material that would be useful in levering their obligations to getting for their office space in the Melbourne CBD. I have noted the provisions of the Wrongs Act (Vic). It appears that unfortunately it is not a statutory obligation unlike hygiene, fire extinguisher, safety lighting etc to have one.   This aspect of a lack of legal obligation warrant me approaching my local member in the near future to have the relevant work care legislation amended to include defibrillators, of course conditional perhaps on the venue, number of people, distances etc

I have written a lot on the use of defibrillators.  On issues to do with the ‘ostrich in the sand’ attitude see:

But, for my view on why I don’t think AEDs will be made compulsory see Making the installation of AED’s compulsory (September 27, 2015) and Liability for failing to install an AED? (April 7, 2016).

Having said that there is a Bill before the SA Parliament to make AEDs compulsory (see A Bill to require installation of AEDs in South Australia (October 29, 2019)).  That Bill has not yet got past its first reading (see details on the Parliament web page) and I personally doubt it will ever see the light of day.

I don’t think Parliaments will ever make AEDs compulsory as it is against the current trend to ensure that people make their own risk assessment.  There is an obligation to provide first aid equipment and facilities (see Model Work Health and Safety Regulations (as at 15 January 2019) r 42)).  Victoria (and Western Australia) have not adopted the Model Act and Regulations so you need to look at the Occupational Health And Safety Act 2004 (Vic) and Occupational Health And Safety Regulations 2017 (Vic).  Neither of these have a general duty to provide first aid and first aid equipment that equates to r 42 of the Model Scheme. However a duty to ensure that there is first aid facilities can be implied by the general duty to provide for the health and safety of works (s 21).

WorkSafe Victoria says (Compliance code: First aid in the workplace (1st ed, 2008), p. 2):

4. The law requires employers to provide, so far as is reasonably practicable, a safe working environment and adequate facilities for the welfare of their employees. Section 21(2)(d) requires that, in meeting their duty under section 21(1), an employer must provide, so far as is reasonably practicable, adequate facilities for the welfare of employees at any workplace under the employer’s management and control.

5. This needs to include having appropriate first aid measures in place, including first aid kits and suitably trained first aid officers.

6. Employers owe the same duty to any independent contractors and their employees who are working at the workplace, but only for matters over which the employer has, or should have, control.

That equates both to my conclusion and the general duty in r 42 for an employer (not a PCBU in Victoria) to do a risk assessment and consider what is appropriate.

What will make AEDs compulsory is not legal rules but a situation where AEDs become so common place that they became part of standard first aid equipment.  Victoria still adopts a rather old-fashioned approach identifying the number of first aid kits required based on the number of employees (p. 8). The list if minimum kits contents (p. 8) is pretty basic, to say the least.   The compliance guide does say (p. 9) that

The employer needs to assess whether additional first aid kit modules are required where particular hazards exist. Some examples of commonly needed additional modules are those dealing with eyes, burns and remote workplaces.

The list of ‘Additional modules for first aid kits’ set out on pp. 25-26 does not refer to AEDs or oxygen or other resuscitation assistance.

WorkSafe Victoria acknowledge that this guide is out of date. They say:

… on 18 June 2017, the OHS Regulations 2017 replaced the Occupational Health and Safety Regulations 2007, which expired on this date. This compliance code has not yet been updated to reflect the changes introduced by the OHS Regulations 2017. Complying with a compliance code made in relation to the old regulations may not necessarily mean compliance with a duty under the new regulations.

Nor, I would suggest, has it been updated to reflect changing technology and expenses.

Conclusion

I do not think any Parliament will move to require AEDs because to do so would be contrary to modern trends to require an employer or PCBU or building occupier to do a risk assessment and ensure that they have in place facilities to adequately deal with reasonably foreseeable risks.   I have previously made the argument that whilst the risk of someone suffering a sudden cardiac arrest is 1; the risk of it happening at any given place is very low.  Equally we’ve all seen workplaces where the first aid kit cannot be found and when it is, all the contents are out of date. It follows that many employers or others may quite reasonably think there is little need to buy an AED.

Doing a risk assessment that leads to a conclusion that an AED is required equipment will depend, I suggest, on the enthusiasm of the first aid officer and the respect that he or she, and the office are held by management.  In terms of regulation it will not be an Act of Parliament but the development of guidance by agencies such as WorkSafe Victoria.  When compliance guides (and see also the Model Code of Practice: First Aid in the Workplace) start discussing AEDs and when they should be considered then employers and PCBU’s will be under legal pressure to install them.

POSTSCRIPT

In response to this post, Adj. Assoc. Professor Alan Eade ASM, Victoria’s Chief Paramedic Officer wrote and said:

Thanks for the work on these posts

These might be of interest and related to this topic:

https://www.bettersafercare.vic.gov.au/reports-and-publications/providing-first-aid-in-emergencies

https://www.worksafe.vic.gov.au/news/2019-07/call-more-life-saving-defibrillators-workplace

https://www.worksafe.vic.gov.au/use-automated-external-defibrillator-aed-workplace

Two of those links are to publications by WorkSafe Victoria. Whilst they do not compel an employer to install an AED but they will form part of the progressive steps that will one-day make AEDs a normal part of first aid equipment.

 

Categories: Researchers