Commandeering private assets in an emergency

Michael Eburn: Australian Emergency Law - 10 August, 2018 - 12:32

This question follows from my post ‘What obligation does local government have to assist the NSW Rural Fire Service? (August 8, 2018).  In that post, I said “There is no power in the Rural Fires Act 19997 (NSW) to allow the RFS to commandeer assets or demand cooperation from a local government authority (or from anyone).”  So today’s correspondent asked:

Who does have the power to commandeer vehicles and/or equipment, and under what conditions?  I am sure it would be a whole gamut of shades of grey depending on your location, your legislated role (“Emergency Officer” or a normal member), the specific usage case (whether you are commandeering the machinery because someone is under a direct and immediate threat to life), whether a reasonable person would believe the equipment would make a difference, whether a reasonable person would consent to being asked for permission to use it, etc.

Somewhat related, if someone was to “commandeer” (the basic actions, rather than the legal right to do so) equipment, but they intended to return it to the owner afterwards, what would they be charged with? I remember reading somewhere that, in order to satisfy the definition of “theft”, there has to be an intent to permanently deprive the rightful owner of the item.

It is indeed true that the answer depends on who you are, in what jurisdiction and in what circumstances.  In every jurisdiction there are specific, and clear, powers to commandeer assets.

Specific powers The Australian Capital Territory

Where there is an emergency and an emergency controller has been appointed, the emergency controller may ‘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 an emergency controller’ (Emergencies Act 2004 (ACT) s 150(2)(c)).  A similar power exists where a formal declaration of emergency has been issued (s 160A(2)(c)).

New South Wales

In a declared state of emergency ‘… the Minister may, for the purposes of responding to the emergency, take possession and make use of any person’s property’ (State Emergency And Rescue Management Act 1989 (NSW) s 38).

The Northern Territory

In a declared ‘emergency situation’, an ‘authorised officer’ may ‘direct the owner or occupier of property in or near the affected area to place the property under the control of the authorised officer’ (Emergency Management Act 2013 (NT) s 23).  During a declared state of emergency or a state of disaster an authorised officer may also ‘direct a person to assist in tasks to save life or property in immediate danger in the affected area’ (s 24).

Queensland

Where there is a declared ‘emergency situation’, the emergency commander (Public Safety Preservation Act 1986 (Qld) s 8) may:

(a) direct the owner or the person for the time being in charge or in control of any resource to surrender it and place it under the emergency commander’s or police officer’s control (“resource surrender direction”);

(b) take control of any resource, whether it is in the charge or control of any person or not;

(c) in respect of any resource under the emergency commander’s or police officer’s control, direct any person who is capable of operating that resource to operate it as directed by him or her (“resource operator direction”)

South Australia

An officer of the Metropolitan Fire Service, the Country Fire Service and the State Emergency Service may, for the purpose of responding to a fire or other emergency,  ‘take possession of … or assume control over any … vehicle or other thing’ and may ‘direct the owner of, or the person for the time being in charge of, any real or personal property to place it under the control or at the disposition of a specified person’. He or she may also ‘direct … any person … to assist in the exercise of any power’ (Fire And Emergency Services Act 2005 (SA) ss 42, 97 and 118).  The state coordinator and authorised officers have similar powers during an ‘identified major incident, a major emergency or a disaster’ (Emergency Management Act 2004 (SA) s 25).

Tasmania

During a declared state of emergency the State Controller and Regional Controllers may exercise special emergency powers.  These special powers are (Emergency Management Act 2006 (Tas) s 43 and Schedule 2) the power to:

(a) direct that the resources of the State and any council or other person be made available for emergency management as specified in the direction; and

(b) require the owner (including a council) of, or the person for the time being in charge of, any resources to surrender the resources and place them under the control of any person involved in emergency management…

Victoria

During a declared state of disaster, the Minster may ‘take possession and make use of any person’s property as the Minister considers necessary or desirable for responding to the disaster’ (Emergency Management Act 1986 (Vic) s 24).

Western Australia

During a declared ‘emergency situation’ or ‘state of emergency’ a hazard management officer or authorised officer may ‘… take control of or make use of any place, vehicle or other thing’.  That ‘place, vehicle or other thing may be in, or outside, the emergency area’ (Emergency Management Act 2005 (WA) s 69.

General powers

Apart from these specific powers there are general powers vested in the chief officer, commissioner, authorised officers or some other position of the emergency services.  These powers are in the form of a statement that the relevant officer can do anything that he or she thinks is necessary, or reasonable, or expedient to deal with the emergency.  There then follows a list of powers but these are said not to limit the general power. These general powers may include a power to take control of an asset but the purpose is usually to secure the asset or protect it from danger or remove it where it is contributing to the danger.  For these general provisions, see Emergencies Act 2004 (ACT) ss 67(2)(d) and 68(2)(d); Fire Brigades Act 1989 (NSW) s 13; Rural Fires Act 1997 (NSW) s 22; State Emergency Service Act 1989 (NSW) s 22A; Bushfires Management Act 2016 (NT) s 47; Fire and Emergency Act (NT) s 20; Ambulance Service Act 1991 (Qld) s 38 (see also Requiring a bystander to assist a Queensland paramedic (February 18, 2017)); Disaster Management Act 2003 (Qld) ss 110 and 111; Fire and Emergency Services Act 1990 (Qld) ss 53, 83 and 149; Fire Service Act 1979 (Tas) s 58; Emergency Management Act 2006 (Tas) s 40 and Schedule 1; Country Fire Authority Act 1958 (Vic) s 30; Metropolitan Fire Brigades Act 1958 (Vic) s 32B; Bush Fires Act 1954 (WA) ss 39 and 44; Fire Brigades Act 1942 (WA) s 34; Fire And Emergency Services Act 1998 (WA) ss 18B, 18G and 18L).

Arguably, these general provisions would allow a commander to take control of an asset that would contribute to the response. Arguing against that interpretation is that it is clear that the parliamentary drafters know how to write provisions that authorise a person to commandeer assets. We can see in the provisions discussed above, that they have done so. If they wanted to give incident controllers that power as part of their routine operations, they could and would have done so as has been done in South Australia (see Fire And Emergency Services Act 2005 (SA) ss 42, 97 and 118).

Even if the power were interpreted in that way, it has to be limited to the presence of the emergency area so a fire incident controller may want to make us of a vehicle that is in the fire ground but it would not extend to travelling to the next council and demanding that they provide their grader or bulldozer to the fire effort.

What consequences?

It is impossible to say what the consequences would be if someone did simply take equipment that they thought was necessary for the response effort.  The common law (Ilich v R (1987) 162 CLR 110 at 123) defined larceny (theft) as:

… a person who, without the consent of the owner, fraudulently and without a claim of right made in good faith, takes and carries away anything capable of being stolen with intent, as the time of such taking, permanently to deprive the true owner thereof.

Without going into details in the circumstances under consideration it may be hard to say the taking was ‘fraudulent’ or that there was an intent to permanently deprive the true owner. But the common law has been changed by statute so it may no longer be necessary to prove an intent to permanently deprive (see Crimes Act 1900 (NSW) s 118) or there may be specific offences, eg ‘taking a conveyance without consent of owner’ (see Crimes Act 1900 (NSW) s 154A).

If a fire officer really did take something in the face of imminent danger and because he or she believed it was necessary to respond to the emergency they would be able to point to the common law defence of necessity (or it statutory equivalent in jurisdictions with a Criminal Code – Queensland, the Northern Territory and Western Australia) (see The doctrine of necessity – Explained (January 31, 2017)).

What follows is that I can’t say what a person may be charged with, if they would be charged at all, it would depend on all the circumstances.

Conclusion

The question that started this was whether a council in NSW had an obligation to provide plant to support an RFS response (What obligation does local government have to assist the NSW Rural Fire Service? (August 8, 2018)).   I said “There is no power in the Rural Fires Act 19997 (NSW) to allow the RFS to commandeer assets or demand cooperation from a local government authority (or from anyone).”   The discussion above shows that the power to commandeer assets does exist but, with the exception of South Australia, that is generally only during a declared emergency or disaster or other situation defined in the relevant legislation.

The general powers of incident controllers may extend to taking and using private assets but if it did it would be limited and apply to assets that are very much in the disaster zone, not travelling outside that area to insist that neighbours provide equipment to assist in the response.

 

 

 

 

Categories: Researchers

Hospital nurse calling an ambulance for someone else

Michael Eburn: Australian Emergency Law - 9 August, 2018 - 17:57

Today’s correspondent asks if I am:

…aware of any situations, issues, case law precedents around hospitals providing advice to patients over the phone.

I am aware of a recent situation, where a middle-aged person called a local rural community hospital with a three-day history of shoulder, neck and elbow pain.  The nursing staff member who answered the call advised them that they should seek medical advice due to a concern it could be cardiac.  The nurse advised the patient to call an ambulance or get someone to drive them to hospital.  Approximately one hour later the patient was found deceased in the hospital car park.  A review of the CCTV footage after the fact shows the patient approach the front door of the hospital’s emergency entrance but he does not enter or push the doorbell seeking assistance.

The question posed was “should the nurse have called the ambulance themselves if they were genuinely concerned that the patient had a potentially serious problem?”

I am aware of situations where a person has presented at the hospital telling the staff that someone has collapsed at a house nearby.  I know in this situation, calling the ambulance for the patient is the right thing to do.

I would appreciate any thoughts or comments you might have on this.

I am not aware of any case law on ‘hospitals providing advice to patients over the phone’ but I can comment on the scenario using general principles.

We can start with the case that gets mentioned very often on this blog, Stuart v Kirkland-Veenstra [2009] HCA 15.  That case confirmed that there is no general duty to rescue in Australian common law. We can dig a bit deeper on that general claim.  First in that case the issue was a duty to protect Mr Veenstra from harm where he was the source of the harm. That is not the situation described above. Although the case is not directly ‘on point’ there are some relevant observations.  At [116] Gummow, Hayne and Heydon JJ said:

…the police officers did not control the source of the risk to Mr Veenstra as would have been the case if he had been a prisoner in custody. No doubt it can be said that the police officers knew of the particular risk to Mr Veenstra… No doubt it can also be said that they were in a position to control or minimise the occurrence of the observed risk … But considerations of the same kind will almost always be present when a passer-by observes a person in danger. The passer-by can see there is danger; the passer-by can almost always do something that would reduce the risk of harm. Yet there is no general duty to rescue. And unlike the case in Crimmins, it was not the officers who put Mr Veenstra in harm’s way.

At [127] Crennan and Kiefel JJ said:

The common law generally does not impose a duty upon a person to take affirmative action to protect another from harm. Such an approach is regarded as fundamental to the common law and has as its foundation concepts of causation. The law draws a distinction between the creation of, or the material increase of, a risk of harm to another person and the failure to prevent something one has not brought about… The common law does recognise that some special relationships may require affirmative action to be taken by one party and are therefore to be excepted from the general rule. Examples of such relationships are employer and employee, teacher and pupil, carrier and passenger, shipmaster and crew.

We can apply these principles to the scenario.  The person has rung the hospital.  In deciding whether there is some professional relationship one has to consider that the nurse did not control the risk to the patient.  This is quite different is the risk to a patient in the hospital is the risk of medication error or of falls etc.  (Here I’m drawing a parallel to police in a carpark vis-à-vis the duty owed by police to a prisoner in custody and discussed in Stuart v Kirkland-Veenstra, above). The nurse may be aware that there is a risk to the patient’s health and safety, hence the advice to ‘call an ambulance or get someone to drive them to hospital’ .  But just because the ‘[nurse or] passer-by can see there is danger’ and can ‘do something that would reduce the risk of harm’ that does not create a legal duty to take that action.  There is no duty to rescue.

But as noted by Crennan and Kiefel JJ ‘some special relationships may require affirmative action to be taken by one party and are therefore to be excepted from the general rule’ that there is no duty to rescue.  To the list given by their Honours there could be added doctor/patient, nurse/patient and hospital/patient.   The first question would be then whether the phone call to the nurse created a nurse or hospital/patient relationship.  In Barnett v Chelsea And Kensington Hospital Management Committee [1969] 1 QB 428 the court was asked to:

… determine the duty of those who provide and run a casualty department when a person presents himself at that department complaining of illness or injury and before he is treated and received into the hospital wards.

Neld J said:

In my judgment, there was here such a close and direct relationship between the hospital and the watchmen that there was imposed upon the hospital a duty of care which they owed to the watchmen. Thus I have no doubt that Nurse Corbett and the medical casualty officer were under a duty to the deceased to exercise that skill and care which is to be expected of persons in such positions acting reasonably …

The question then is whether making a phone call is akin to the patient presenting ‘himself at that department complaining of illness or injury’.  To determine that question I would want to know whether the hospital holds itself out as providing a phone health service.’ If not one cannot demand that a potential defendant provide a service it in no way claims to provide. ‘Health Direct’ (https://www.healthdirect.gov.au/) does claim to provide ‘24 hour health advice and information you can count on’ so you may expect a different level of service, and protocols for when the telephone staff will take action. But a hospital that doesn’t offer a phone in health service may still stand as a stranger to the person who calls.

If the phone call does create a professional relationship, the response to the risk need only be reasonable. It would not be reasonable to expect that ‘a local rural community hospital’ will have the sort of protocols and processes that one might expect from ‘Health Direct’ if it doesn’t pretend to offer the same sort of service.   Further the reasonable response to a risk, in this case the risk that the patient may be having a cardiac event, need only be reasonable.

In Wyong Shire v Shirt [1980] HCA 12, Mason J of the High Court said (at [14]):

In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant’s position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man’s response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant’s position.

This position has been replaced by a similar, but not identical calculus in modern legislation but the principles are sufficiently similar that considering this list will suffice for our purpose.

The foreseeable risk was that the patient was suffering an cardiac episode and may indeed die without medical intervention such that the nurse suggested he or she should attend hospital. Given the risk is foreseeable the next issue what is the magnitude of the risk? Answer very high, it could be life or death. What was the degree of probability that it was a life and death matter?  Here we know that the patient had ‘a three-day history’ of symptoms, was able to call the hospital and presumably have a lucid conversation without too much difficulty.  Questions to be asked would indeed be how did the caller sound on the ‘phone? When it was suggested that they call an ambulance or arrange a friend to drive them to hospital did they say that they could not do either of those things, either because they were too unwell or otherwise incapable?  One might think the likelihood that this condition would prove fatal within the hour was, objectively judged at the time of the call, low.  Remember that the defendant’s conduct has to be judged at the time.  The fact that the patient did die an hour later is irrelevant. The question is was there any reason for the nurse to think that is what would happen.

What could the nurse have done? He or she could have called an ambulance but there are conflicting duties in particular respect for patient autonomy.  If this patient has indicated that he or she has heard the advice and will take action why would you impose an ambulance upon them? And did the nurse have the details necessary such as the patient’s address? And if the patient appeared capable it would be better for them to ring the ambulance so they can relay their sign and symptoms and answer the call taker’s questions.

That doesn’t mean there may not be a duty to call an ambulance (assuming the circumstances did give rise to a therapeutic relationship).  Where the patient is clearly struggling for breath, reporting urgent symptoms, barely able to talk etc. That all goes to the assessment of how likely is the poor outcome.  If we don’t take into account the practitioners assessment of ‘the degree of the probability’ of a poor outcome, we would have to say that every time someone rings a hospital for advice they have to call an ambulance ‘just in case’ and that can’t be reasonable.

Where someone comes into a hospital and tells the staff that ‘someone has collapsed at a house nearby’ we may think calling an ambulance is a reasonable response but that doesn’t mean that there is a legal obligation to call the ambulance and secondly a person collapsed is quite different to a person on a phone reporting a three-day history of symptoms.

As for the person collapsed in the car park but who did not ‘enter or push the doorbell seeking assistance’ there would be a duty to provide assistance to them but only once they are discovered.

Conclusion

One really can’t say whether ‘the nurse [was under a legal duty to] have called the ambulance themselves’.  It would depend on the nurse’s assessment of the patient’s capacity, the severity of the symptoms, any operating protocols or procedures of the hospital, what information the nurse had about the patient.  Issues like this all depend on the assessment of the situation at the time of the call, when the person did not know that the patient would be found dead an hour later, and a ‘reasonable’ response to the situation as it presented itself.

My ‘gut’ reaction would be that as a general rule there would be no legal obligation to call the ambulance but my view might change if the hospital did claim to offer a phone in health service and/or the patient was in obvious distress, or ‘in extremis’ whilst on the ‘phone.

For related posts see

 

 

 

Categories: Researchers

“The Application of Criminal Law in Non-Terrorist Disasters and Tragedies – 2018 Edition”

Michael Eburn: Australian Emergency Law - 9 August, 2018 - 11:49

I subscribe to an email list of disaster/law research that comes out of University of California, Berkeley.   A contributor to that list, Professor Denis Binder (Chapman University, California) has put together a list of worldwide criminal prosecutions in non-terrorist disasters and tragedies.  The initial list, from 2016, is on his website at http://denisbinder.com/criminal-prosecutions-for-disasters/ 

Professor Binder has just issued a 2018 list.  He says:

… The original posting included 200 incidents. This revised listing includes 421 incidents, many of which preceded the earlier posting date of September 26, 2016. Much of the increase is due to the ability to uncover prior incidents, many of which received little publicity or have been forgotten in time. One example is the October 22, 1895 French railroad crash with the classic photo of the locomotive resting at a 90° angle outside the station. I could easily find it once I had a clue on what to look for. Another reason is the increased posting online of earlier publications.

This list will never be complete. Do not therefore treat it as 100% accurate or definitive. Instead view it as a “ball park” figure, representative of the cases. For example, India leads the listings with building collapses followed by China with mining disasters. Other incidents exist in these countries, but it not always possible to find reports of criminal prosecutions in every reported building collapse or mining disaster. My listings are for those which I can ascertain criminal proceedings on the internet.

The criteria for listing remains the same in 2018 as in 2016. Listings are based on incidents with at least one fatality, except for environmental disasters with extensive environmental damages, such as oil spills contaminating hundreds of miles of shoreline…

Workplace accidents and construction accidents are common globally. They are not included in the listing, unless a major tragedy such as the 2015 1,350 ton crane collapse at Mecca with 111  fatalities or the 2016 scaffolding collapse in Fengcheng, China, killing 74 workers on a cooling tower under construction. In those situations I added similar incidents with a fatality to the list…

The lists do not include an analysis of the results, which can be found for the first listing at Denis Binder, The Findings of an Empirical Study of the Application of Criminal Law in Non-Terrorist Disasters and Tragedies, https://doe.org/10.1016/jfutures.2018.01.008 and Denis Binder, The Findings of an Updated Study of the application of Criminal Law in Non-Terrorist Disasters and Tragedies, 9 The Bus. & Mgmt. Rev. 153, Vol 2 (November 2017).

My theses in collecting  the cases were multiple:

1)            A substantial increase in prosecutions have occurred in the New Millennium;

2)            Cases often involve government officials and employees for corruption, dereliction of duty, and negligence;

3)            Many of the cases arise in Asia and the Pacific Islands, and

4)            The substantial increase in prosecutions in the New Millennium is probably caused by the widespread use of cell phones with photo and video capability and social media.

I cannot prove the fourth premise. Nor can I often explain why some incidents result in prosecutions while similar ones do not.

Two surprising discoveries were the large number of cases in which charges were brought against architects and especially engineers. The second surprise is that a number of cases dragged on for over a decade. Delays in initiating legal proceedings can be due to the technical expertise that must be used to determine the cause of the incident and the extent of human involvement in the disaster and tragedy.

The 2018 list is not yet online but Professor Binder does say that he ‘will be posting it on line shortly’.   The list isn’t of obvious application to readers of this blog, but it’s interesting and being interested, you may want to go an look at it.

 

Categories: Researchers

‘Deemed employment’ and the difference between F&RNSW and the NSW RFS

Michael Eburn: Australian Emergency Law - 8 August, 2018 - 15:54

The Workers Compensation Commission of NSW handed down a decision in the matter of Hay v Commonwealth Steel Company Pty Ltd [2018] NSWWCCPD 31 on 31 July.  It appears to me that the lawyers on both sides of the issue may have misunderstood the law as they failed to distinguish between Fire and Rescue NSW and the NSW Rural Fire Service.

Mr Hay was employed by the Commonwealth Steel Company Pty Ltd from 1988 to 1993 as a furnace assistant and later as a machine operator.  He made an application for compensation for work related hearing loss.  Because hearing loss (like other degenerative conditions) occurs over time an applicant can’t say how much of the loss is attributable to different employers if he or she worked in more than one noisy job.  The relevant claim is to be brought against the last noisy employer (Workers Compensation Act 1987(NSW) ss 15 and 17).

Mr Hay was also a volunteer with the NSW Rural Fire Service.  The critical sentence in the Commission’s decision was at [5].  Deputy President Wood said:

It was common ground that as a volunteer fire fighter, Mr Hay was deemed to be a worker pursuant to cl 13 of Sch 1 to the 1998 Act. Mr Hay conceded that while fighting fires, he was exposed to excessive noise.

If the Rural Fire Service was the last noisy employer then it was the RFS and not the Commonwealth Steel Company that had to deal with the claim.  (The RFS, it should be noted, was not a party to these proceedings).  We can accept, for the sake of the argument, that Mr Hay ‘was exposed to excessive noise’ as a firefighter.  What concerns me is the comment that ‘It was common ground that as a volunteer fire fighter, Mr Hay was deemed to be a worker pursuant to cl 13 of Sch 1 to the 1998 Act’.  To say that it was ‘common ground’ means that the lawyers for both Mr Hay, and for the Commonwealth Steel Company accepted that this proposition was true.  The Commission’s job is to rule on the issues in dispute between the parties.  Because there was no dispute the court didn’t ask itself whether this claim was true, rather it made a decision assuming this proposition was true. It is my view that the claim ‘Mr Hay was deemed to be a worker pursuant to cl 13 of Sch 1 to the 1998 Act’ was in law, wrong.

Schedule 1 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) refers to ‘deemed employment of workers’.  ‘Deem’ means ‘regard or consider in a specified way’ (Oxford English Dictionary (online)).  To ‘deem’ someone as an employee means to regard or consider them as employee even if they are not.  The point of having some people ‘deemed’ to be an employee is that it means they are entitled to workers compensation even though they are not, in reality, an employee.  Volunteers are necessarily not employees so if a volunteer is a deemed employee it ensures they get compensation.

Clause 13 of Schedule 1 says:

Fire fighters in fire districts(cf former Sch 1 cl 13)

(1)  A person who (without remuneration or reward):

(a)  voluntarily and without obligation engages in fighting a bush fire in any fire district constituted under the Fire Brigades Act 1989 with the consent of or under the authority and supervision of or in co-operation with:

(i)  any volunteer fire brigade within the meaning of that Act, or

(ii)  the Director-General or any officer of New South Wales Fire Brigades or any member of a permanent fire brigade, or

(b)  is undergoing training for the purposes of fighting bush fires in those circumstances,

is, for the purposes of this Act, taken to be a worker employed by the Director-General of New South Wales Fire Brigades.

(2) …

(3)  In this clause:

bush fire means a fire burning in grass, bush, scrub or timber and any fire arising from such a fire.

fighting, in relation to a bush fire, includes any reasonable act or operation performed by the person concerned at or about the scene of or in connection with a bush fire, which is necessary for, directed towards or incidental to the control or suppression of the fire or the prevention of the spread of the fire, or in any other way necessarily associated with the fire.

Anyone from one of the New South Wales fire services should see the problem.

Fire and Rescue NSW is the service established ‘for preventing and extinguishing fires and protecting and saving life and property in case of fire in any fire district’ (Fire Brigades Act 1989 (NSW) s 6).  The Rural Fire Service operates within rural fire districts (Rural Fires Act 1987 (NSW) ss 6 and 9).

The Fire Brigades Act 1989 (NSW) s 3 defines a volunteer fire brigade as ‘any association of persons for which an approval as a volunteer fire brigade is in force under section 9, but does not include a rural fire brigade’ (emphasis added).  In Fire and Rescue fire stations that are staffed by both permanent and retained firefighters, it is considered that there are two brigades, the permanent brigade and a volunteer brigade, even though Fire and Rescue ‘volunteers’ are in fact paid a retainer for their services (see Fire Brigades Act 1989 (NSW) s 3 and Who’s the officer in charge? – NSW Fire and Rescue (September 3, 2013)).

Rural fire brigades, on the other hand, are established by the Rural Fires Act 1997 (NSW) Part 2, Division 3.

Clause 13 of Schedule 1 could apply to an RFS volunteer where the RFS brigade is operating in a fire district to assist Fire and Rescue NSW but I don’t think that’s the intention of the Act.  Even if it did apply then the deemed employment would only be for the period of that operation, and not for the entire period of the person’s volunteering with the RFS.

What follows is that if Mr Hay was a member of the Rural Fire Service Clause 13 of Schedule 1 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) does not apply to him.  That clause is there to ensure volunteers with Fire and Rescue NSW get workers compensation.  Compensation for volunteers with the Rural Fire Service is governed by the Workers Compensation (Bush Fire, Emergency and Rescue Services) Act 1987 (NSW).  That Act creates a statutory scheme but does not deem the volunteers to be employees.

Further, if I’m correct, Mr Hay’s last noisy employer was the Commonwealth Steel Company. Even if he was exposed to noise as an RFS volunteer, the RFS was not his deemed employer.  If that’s correct then the Commission, that was asked to determine ‘whether Commonwealth Steel was the “last noisy employer” for the purposes of s 17(1) of the 1987 Act’ was not told the correct legal position.

Conclusion

The lawyers for both Mr Hay and the Commonwealth Steel Company Pty Ltd appear to have missed the fact that in New South Wales there are two fire services – Fire and Rescue NSW and the NSW Rural Fire Service.  They have seen a reference to Fire Brigades and fire fighter in Clause 13 of Schedule 1 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) and assumed that applied to a volunteer in the Rural Fire Service.  That was, in my view, an error.  If I am correct the mistake has corrupted the decision of the Workers Compensation Commission.  The arbitrator at first instance, and then the Deputy President on appeal, accepted the position of the lawyers and did not look at the operation of the Fire Brigades Act vis-à-vis the Rural Fires Act.  Again, if I’m correct, it means the decision in Hay v Commonwealth Steel Company Pty Ltd [2018] NSWWCCPD 31 was based on incorrect law.  That does not mean the outcome was wrong because the case turned on other issues and it may be that this issue ended up not being a critical factor in the final decision, but it is a matter of concern that a tribunal has made a decision, at least in part, on an incorrect application of law.

Categories: Researchers

Victoria’s Metropolitan Fire and Emergency Services Board penalised for failing to comply with enterprise agreement

Michael Eburn: Australian Emergency Law - 8 August, 2018 - 13:19

In United Firefighters Union of Australia v Metropolitan Fire and Emergency Services Board [2018] FCA 1161 the Metropolitan Fire and Emergency Services Board was ordered to pay a penalty of $25 000 for contravening the enterprise agreement (‘the EA’) that was in place between the Board and the Union.

The parties agreed on the facts. Very briefly the issue was that the Board significantly changed the way it would recruit firefighters but did so without consulting the union.  The EA said at clause 15:

Where the employer wishes to implement change in matters pertaining to the employment relationship in any of the workplaces covered by this agreement the provisions of clause 13 will apply.

Clause 13 said:

13. Consultative process

13.1 Consultation

Consultation means the full, meaningful and frank discussion of issues/proposals and the consideration of each party’s views, prior to any decision. Committees established for the purpose of implementing aspects of this agreement are part of the consultative process.

At [16] North J set out the changes that the MFB proposed to make. These were:

  • Changes to the cut off mark required to pass the VST [the Vocational Selection Test] …
  • The introduction of a cap on the numbers of applications to the recruit selection process, together with a specific quota of men and women to be considered for selection as recruit firefighters (the “Quota”)…
  • The removal of the Mechanical Reasoning component of the VST…
  • The removal of the Order of Merit…; and
  • Removal of the three strikes policy ….

The ‘Order of merit’ was the process where the MFB ranked candidates and made offers to candidates according to their position in the Order.  A person’s position would change as candidates were added to or removed from the list.  The ‘three strikes policy’ was ‘a policy whereby the MFB gave each candidate three opportunities to pass each stage of the recruit selection process’.

The decisions to make these changes were made between July and November 2015 ([16].  At [19]-[20] the parties agreed that:

On or about 25 January 2016, the MFB announced on its website, inter alia, that “the Recruit Firefighter Selection Process is currently under review”.

The MFB had not informed the UFU of the Review prior to the time it was announced on the MFB’s website.

The UFU gave notice of an industrial dispute on the basis that there had been no consultation.  The MFB argued that there had been no breach as the EA did not apply to prospective employees (see [22]).

The matter was listed before the Fair Work Commission. On 29 January 2016, the MFB agreed to make no changes prior to a conference to be held at the Fair Work Commission to resolve the issues.   At [24]-[28] it is said:

On 1 February 2016, the MFB published on its website:

(a)          an invitation for 700 new applications for the MFB Selection Process, with a quota of 350 male and 350 female applicants.

(b)          information about the VST for the upcoming MFB Selection Process. That information did not include reference to the mechanical reasoning test, and stated that the cut off score for the VST would be 45.

By 2 February 2016, the MFB had received 350 applications from male applicants and closed applications to further male applicants. By the time applications closed at 5.00pm on 2 March 2016, 290 women had applied to participate in the MFB Selection Process. In 2013, 1310 applicants applied to participate in the MFB Selection Process, comprising 1206 men and 104 women.

A Consultative Committee meeting was held on 3 February 2016.  The MFB did not place the issue of the Changes on the agenda at that meeting. Consultative Committee meetings were also held on 4 February 2015, 4 March 2015, 1 April 2015, 6 May 2015, 3 June 2015, 1 July 2015, 5 July 2015, 2 September 2015, 7 October 2015, 4 November 2015, 2 December 2015 and 12 January 2016. The MFB did not place the issue of the Changes on the agenda at those meetings.

On 4 February 2016, the solicitors for the UFU sought an undertaking from the MFB that it would abide by the requirement in clause 19.4 of the Agreement that “the status quo must apply in accordance with the existing situation or practice that existed immediately prior to the subject matter of the grievance or dispute occurring”. On 5 February 2016, the MFB refused to provide such an undertaking.

As at 5 February 2016 the MFB had not consulted with the UFU in accordance with the procedure in clause 13 of the Agreement in relation to the Changes.

There were various dispute resolution processes and meetings to resolve the issues between the parties.   It appears that the outcome of the process was (at [49]-[52]):

In February 2016, the MFB implemented quotas on applications to participate in the MFB Selection Process (350 male and 350 female).

The VST administered by ACER on 12 and 13 March 2016 included the mechanical reasoning test, following a change in position by the MFB as a result of the discussions before Commissioner Roe.

ACER marked the VST, on the instructions of the MFB, using both the cut off score of 50 on the old scale and the cut off score of 45 on the new scale.

Candidates who passed the VST on either the cut off score of 50 on the old scale, or the cut off score of 45 on the new scale, proceeded to the next stage of the selection process. The MFB advised candidates who had met only one of the cut off scores of 50 on the old scale or 45 on the new scale that they had provisionally passed the VST, subject to the outcome of this proceeding. Of this group, two candidates passed the remaining stages of the selection process but none were selected for the July 2016 recruit training course.

The issue before the Court was not whether the changes to the recruitment process were good, bad or indifferent, but the failure to consult with the UFU as the MFB had agreed to do.  The MFB did agree that they had failed to cmply with the EA and the parties agreed that the appropriate remedy was the penalty of $25 000 to be paid to the UFU.  North J said (at [58]-[60] but incorrectly numbered in the judgment as [8]-[10]):

The aim of the imposition of the civil penalty is to act as a deterrent to the respondent and to other parties to enterprise agreements to fail to adhere to the terms of those agreements.  There is no evidence that the respondent has contravened the Act on any other occasion.

In setting the penalty, it is also significant that, except as to the gender quota issue, any harm which might otherwise have resulted from the respondent’s failure to consult was limited. The applicant was prompt to commence proceedings and obtained orders to prevent the respondent taking further action unless it complied with the provisions of the enterprise agreement.

The proposed penalty is about 50 per cent of the maximum penalty available. The agreement of the parties properly reflects the seriousness of the conduct of the respondent. The amount proposed is appropriate in all the circumstances. For those reasons, I will make the orders which the parties seek by consent.

Conclusion

Parties to an enterprise agreement are expected to meet the terms of their agreement.  See also Industrial Relations and asking the CFA to stick to its bargain (January 26, 2015).

Categories: Researchers

What obligation does local government have to assist the NSW Rural Fire Service?

Michael Eburn: Australian Emergency Law - 8 August, 2018 - 10:21

Today’s question comes from a NSW volunteer firefighter who responded to a fire in rural local government area.   The Incident Controller (IC) requested a bulldozer and grader to ‘cut fire breaks so we could do backburning during the night to help contain the fire’.  The request was made at 3pm but the response was ‘The bulldozer would not be there until around 8.30 the next day and the grader would not be there until 11 am the next day.’  My correspondent says that he is aware that the relevant council, as well as neighbouring councils, had graders and bulldozers but these were not made available.  So, asks my correspondent:

What obligations do local governments have to supply heavy plant to the RFS to suppress bushfires?  Having read the Rural Fires Act and the Local Government Act I must say the law seems wishy washy on the obligations of local government when they clearly have the resources to help… This leads me to my other question; Do you think that the Rural Fires Act and/or the Local Government Act needs beefing up to put more onus on local government to assist the RFS?

There is no legal obligation on local government to supply heavy plant or other assistance to the RFS.

The Local Government Act 1993 (NSW) makes no specific mention of emergency management.  Although there are no specific emergency management provisions, the Act does say that ‘A council has the functions conferred or imposed on it by or under any other Act or law’ (Local Government Act 1993 (NSW) s 22). The table to s 22 lists some Acts that confer functions on local governments.  The table to s 22 identifies the following relevant Acts and functions:

  • The Fire Brigades Act 1989 (NSW) imposes an obligation on councils to pay contributions toward the costs of maintaining the fire brigades.
  • The Rural Fires Act 1997 (NSW) authorises council to issue of permits to light fires during bush fire danger periods and to furnish information to the Rural Fire Service Advisory Council and its Co-ordinating Committee.
  • The State Emergency Service Act 1989 (NSW) requires council to recommend a person for appointment as the local SES controller; and
  • The State Emergency and Rescue Management Act 1989 (NSW) requires a council to prepare for emergencies.

There is no power in the Rural Fires Act 19997 (NSW) to allow the RFS to commandeer assets or demand cooperation from a local government authority (or from anyone).

That there is no legal obligation under either the Local Government Act 1993 (NSW) or the Rural Fires Act 19997 (NSW) is not, however, the end of the matter.  The State Emergency and Rescue Management Act 1989 (NSW) s 28 establishes Local Emergency Management Committees (or LEMC).  The LEMC is made up of ‘the General Manager of the council of the relevant local government area, who is to be the Chairperson of the Committee’ as well as representatives from all agencies involved in emergency management within the council’s area including the Rural Fire Service.

The LEMC is required to prepare and review local emergency management plans. The Committee may (but is not required to; s 29(1A)(e)): ‘facilitate local level emergency management capability through inter-agency co-ordination, co-operation and information sharing arrangements’.

The conclusion is that arrangements for providing council plant to a request from the RFS (or SES, or F&RNSW or NSW Ambulance) is a matter that should be part of the local emergency management plan. What equipment is available, on what terms, when and how they are requested will vary from local government to local government hence it makes sense not to have prescriptive arrangements in the legislation.  Consistent with an approach of developing resilient communities (see Council of Australian Governments, National Strategy for Disaster Resilience (Commonwealth of Australia, 2011)) structures are in place to establish local arrangements.  It is those arrangements that will determine local responsibilities.

Do the Rural Fires Act and/or the Local Government Act need beefing up to put more onus on local government to assist the RFS?  That is not for me to say.  The allocation of responsibilities is a matter of policy, determined by government taking into account various issues.  Certainly the difference between councils and risks would suggest that mandating obligations at state level is unlikely to be effective and would be inconsistent with the notion that emergency response starts and should remain local.

Conclusion

My correspondent asked ‘What obligations do local governments have to supply heavy plant to the RFS to suppress bushfires?’ He referred to the Local Government Act 1993 (NSW) and the Rural Fires Act 19997 (NSW) and found no obligation. That is correct.  The obligation (if there is one) will be found in the Local, Regional and ultimately State Emergency Management Plans.  The first point to look would be the Local Emergency Management Plan for the local government area in which the fire occurred.

Categories: Researchers

Rural Fire Brigades as part of Queensland Fire and Emergency Services (not Queensland Fire and Emergency Service).

Michael Eburn: Australian Emergency Law - 6 August, 2018 - 23:11

A member of a Queensland Rural Fire Brigade says:

… the volunteer members of the Brigade which is set up under the Fire and Emergency Services Act 1990 are members of an unincorporated association that conduct business as well as “fire and emergency” duties.

On Thursday, I was informed by a Regional Manager RFS that if an action was brought against my brigade or one of our members then as an unincorporated association, I and all members of the brigade would have to defend ourselves individually and QFES does not cover us.

His words were that I would lose my house and everything I own defending myself.

Also I was informed the QFES Act nor the Civil Liabilities Act would not protect me or a member from having claims against us and hence the cost of defence of such claims.

This is getting out of hand.

My regional manager specifically stated to me that as a Brigade Member I could lose everything in defence. Your comments would be appreciated; my only thought is that, similar to Queensland Justices of the Peace, an individual member might need professional indemnity insurance to cover these eventualities?

A question that springs to mind, but which I won’t attempt to answer, is why on earth would a JP need professional indemnity insurance? What on earth could a JP do that would expose them to liability? Those questions are rhetorical, I’m not really asking for answers nor am I going to try and provide any.

I have previously discussed what I think is the legal position of Queensland Rural Fire Brigades – see  Status of Queensland Rural Fire Brigades (September 10, 2014) and Revisiting the status of volunteer rural fire brigades in Queensland (March 9, 2018).

The problem as I see it as that the term Queensland Fire and Emergency Service is used in two contexts.  One it described the fire and emergency services that operate fire appliances and respond to emergencies, the service constituted by the Fire and Emergency Services Act 1990 (Qld) s 8 and refered to on the QFES website as “Fire and Rescue”.  QFES is also the name of the relevant government department.  As the QFES website says “Queensland Fire and Emergency Services (QFES) was established as a department on 1 November 2013 under the Public Service Act 2008. QFES reports to the Minister for Fire and Emergency Services”.

So QFES is the department, under the management of the Commissioner and answerable to the Minister (see Administrative Arrangements Order (No. 1) 2018 (Qld), p. 33) as well as the operational fire and rescue service. It’s true that members of the Rural Fire Brigades are not members of the Queensland Fire and Emergency Service (Fire and Emergency Services Act 1990 (Qld) s 8).  They do however fall under the management of the Department that is Queensland Fire and Emergency ServicesThat is the Department name, and the Act title refer to ‘services’ (plural) whereas the Queensland fire and Emergency Service is a singular service, it is one of the three services that make up Queensland Fire and Emergency Services (the other two being the SES and the Rural Fire Brigades).

The Fire and Emergency Services Act provides for the formation of rural fire brigades but they are not a separate legal entity.   As they are not a legal entity a brigade cannot enter into contracts or sue or be sued in its own name.  I note also that the QFES Is also not a legal entity but no-one is going to sue members of the QFES.  Fire fighters are employed by the Commissioner (s 25), the Commissioner is the head of the government department and liability if any will belong to Queensland (see Queensland Fire and Rescue not liable after factory fire (October 3, 2014) and although the title of the post refers to Queensland Fire and Rescue, the defendant was the State of Queensland).

Just because a brigade does not have a separate legal existence, it does not follow that “if an action was brought against my brigade or one of our members then as an unincorporated association, I and all members of the brigade would have to defend ourselves individually and QFES does not cover us.”  First it’s not clear what sort of ‘action’ my correspondent has in mind.  It is, in my view, clear that the Rural Fire Brigades are an operational part of the department Queensland Fire and Emergency Services. Any action against the department would be brought against the State of Queensland.  Note too that Queensland Ambulance is not a separate legal entity but that did not stop the State of Queensland being the relevant defendant when a legal action was brought against the Ambulance Service – see State of Queensland STILL liable for paramedic negligence (October 25, 2017).  That liability was in part due to the fact that by virtue that the State of Queensland was the employer of Queensland ambulance officers.  The State of Queensland is not the employer of volunteer fire fighters (obviously) but it exercise such control over the operation of rural fire brigades and their officers that I have no doubt vicarious liability would also extend to protect any fire fighters (Hollis v Vabu [2001] HCA 44; Barclays Bank PLC v Various Claimants [2018] EWCA Civ 1670).

I fail to see why ‘the QFES Act nor the Civil Liabilities Act would not protect’ a firefighter.  Section 153B of the Fire and Emergency Services Act 1990 (Qld) says:

No liability attaches to any person for an act done, or omission made, honestly and without negligence under chapter 3.

The formation, function and powers of Rural Fire Brigades are all provided for in Chapter 3, Part 7 of the Act.

The Civil Liability Act 2003 (Qld) s 39 says:

A volunteer does not incur any personal civil liability in relation to any act or omission done or made by the volunteer in good faith when doing community work—

(a) organised by a community organisation; or

(b) as an office holder of a community organisation.

I have no doubt that the Queensland Fire and Emergency Services (ie the government department) is a community organisation (s 34) and I can’t see any reason why a volunteer with a rural fire brigade wouldn’t enjoy the protection offered by this section.

I note the advice that ‘QFES does not cover us’ is inconsistent with the advice of Deputy Commissioner Mike Wassing, Chief Officer Rural Fire Service and Chief Officer of the State Emergency Service (Letter from Deputy Commissioner Mike Wassing to all Rural Fire Service Volunteers, 11 May 2018, available at https://www.rfbaq.org/legalstatus).

Finally remember that people sue other people and entities for money.  No-one is going to sue the members of a fire brigade as it would be a pointless waste of time.  They want to sue the State of Queensland because the State of Queensland can afford it.

Being unincorporated is not unique to Queensland Rural Fire Brigades.  No government agency wants its fire brigades to be separate legal entities as that would cause untold confusion.  For related discussions see:

My comments

I was asked to provide my comments in particular on the advice that:

… if an action was brought against my brigade or one of our members then as an unincorporated association, I and all members of the brigade would have to defend ourselves individually and QFES does not cover us.

…[neither] the QFES Act nor the Civil Liabilities Act would not protect me or a member from having claims against us and hence the cost of defence of such claims.

My comments are that that advice is rubbish, ill-informed and ridiculous (and I’m being polite! People who aren’t lawyers should stop giving legal advice and people should stop taking legal advice from people who aren’t lawyers, and yes, I’m assuming the Regional Manager is not a lawyer).   As for the suggestion that ‘an individual member might need professional indemnity insurance’ I can’t believe you’d be able to get that sort of insurance, not because the risk is too high but it’s so low who would bother to offer it?

The rural fire brigades are not a legal entity, they are however part of the Queensland Fire and Emergency Services ie the government department that operates Queensland’s fire and emergency services even if they are not part of the operational service that is the Queensland Fire and Emergency Service.  Do see again Revisiting the status of volunteer rural fire brigades in Queensland (March 9, 2018).

I really can’t see the issue.

Categories: Researchers

Paramedic registration if you are “working as a paramedic”? 

Michael Eburn: Australian Emergency Law - 6 August, 2018 - 16:22

Today’s question come from a NSW paramedic who has received the booklet ‘Paramedics: Welcome to the National Scheme’ published by the Paramedicine Board in July 2018. On p. 3 it says (emphasis added):

Check if you need to register. Anyone who works as or will use the title ‘paramedic’ (including people in non-clinical roles) must register with the Board. Students, medics, volunteer ambulance officers and emergency medical technicians (EMTs) do not need to apply for registration.

My correspondent says:

Previously, I had understood that the title paramedic will be restricted to those who are registered, and you have made references to people who would “hold themselves out to be” paramedics.

Further, in your blog of 10 June you said, at least regarding WA, “The short answer is therefore that registration of paramedics will not require ambulance services to staff their service with paramedics.  They can use people with other qualifications and volunteers. ”

In other words, it all turned on the use of the term, not the actual position held or work being done.

However, the line from the Paramedicine Board’s booklet now suggests that the restriction applies not only to one who would call himself or herself a paramedic but to anyone who performs the role.

I can imagine there will be some Ambulance Officers – perhaps those close to retirement – who want neither the status nor the cost of registration, but would like to keep doing their job, even though they would not be called a Registered Paramedic.

Given the statement in the booklet, do you think it will be possible for someone to continue employment with NSW Ambulance in a frontline clinical position (currently called a paramedic) without being a Registered Paramedic?  In other words, is it possible for a non paramedic-registered employee to perform the same clinical duties as a paramedic without being understood to “work as a paramedic”?

If your previous advice remains correct that ambulance services can operate using staff other than paramedics, then is the wording of the booklet misleading?

In my view the wording of the booklet is misleading. The Health Practitioner Regulation National Law (‘the National Law’) appears as the Schedule to the Health Practitioner Regulation National Law Act 2009 (Qld). That law has been adopted in all Australian states and territories to create the national scheme.

The National Law operates by the protection of title, so only a registered health practitioner can use the titles reserved for that profession (ss 113-120). The National Law has very little to say on scope of practice. It does say that there are some practices that only relevantly registered health practitioners may engage in (see s 121 ‘Restricted dental acts’; s 122 ‘Restriction on prescription of optical appliances’ and s 123 ‘Restriction on spinal manipulation’).  None of those are directly relevant to paramedicine.

There is no law that says what it is that paramedics do that distinguishes them from other people or other registered health professionals. Remember that ‘back in the day’ the term paramedic was reserved for intensive care paramedics. NSW Ambulance officers (at least) were given the title ‘paramedic’ at the stroke of an administrative pen (see NSW Ambulance ‘in the news’, 3 December 2007).

The Paramedicine Board is required ‘to decide the requirements for registration or endorsement of registration in the health profession…’ (National Law s 35(1)).  The Board could determine that the appropriate qualification for registration as a paramedic is a first aid certificate.  No doubt it will not do that because there is a common understanding that paramedics are something more than first aiders, but at this stage ‘paramedic’ remains undefined. With registration the term will mean ‘a person registered as a paramedic’ but that won’t add much context to distinguish between a paramedic and anyone else. It certainly means that today there is no clear indication of whether or not ‘medics, volunteer ambulance officers and emergency medical technicians (EMTs)’ are or could be paramedics (see Are St John volunteers paramedics? Should they be? (July 19, 2012)).

We can see that as the Board has endorsed some qualifications for admission – see http://www.paramedicineboard.gov.au/Education/Qualifications.aspx#approved-qualifications.  So we can begin to understand what paramedics do by reference to the curricula of those approved qualifications. What it does mean is that if you do not hold one of those qualifications it is not that, in the future, you don’t need to apply for registration, it’s that you won’t be accepted for registration.  We will begin to understand who is a paramedic by seeing who is not a paramedic.

The new rules also provide for grandfathering.  One way to get registered, during the transitional phase is for an applicant to demonstrate that he or she “has practised paramedicine during the 10 years before the participation day for a consecutive period of five years or for any periods which together amount to five years and satisfies the Board that they are competent to practise paramedicine.’  But what does practice paramedicine mean?  Again that’s not defined. But what the Board determines is ‘competent to practise paramedicine’ will give substance to the definition. As the registration processes continues it is the Board that will define what practice constitutes practice as a paramedic and therefore what essential skills paramedics, as opposed to first aiders and emergency medical technicians (whatever that might mean) have.

If it’s only protection of title, what’s the point?

The point and benefit of registration will come with time.  At the moment anyone can call themselves a paramedic and so anyone, including medics, volunteer ambulance officers and emergency medical technicians, could apply for registration as a paramedic.  The Paramedicine Board will accept some applications and reject others.  Provided they do that on a principled basis that will begin to define what or who is a paramedic – and that is key.

At the moment who is a paramedic is up to whoever wants to use the title.  With registration it is the profession, via the Paramedicine Board, that will determine who gets to join the club of ‘paramedics’.  If they do that with integrity and build and maintain public confidence in the paramedic profession, other regulators will follow. For example under current law paramedics can carry and use drugs because they are endorsed by their employer.  Under the Poisons and Therapeutic Goods Regulation 2008 (NSW), Appendix C, cl 7:

A person:

(a) who is employed in the Ambulance Service of NSW as an  ambulance  officer …, and

(b) who is approved for the time being by the Director-General for the purposes of this clause,

is authorised to possess and use any Schedule 2, 3 or 4 substance that is approved by the Director-General…

In the future health departments may decide to provide that ‘A paramedic’ can carry scheduled drugs ‘in the lawful practice of his or her profession’.  That is the sort of language that is applied to medical practitioners (see Poisons and Therapeutic Goods Act 1966 (NSW) s 10) so a medical practitioner can carry scheduled drugs by virtue of their registration. That is not the case with paramedics, but it may be one day. If the Board throws the net too wide on who can be registered as a paramedic then the confidence of the government and the public may not allow that sort of development.

On the question of practice as a paramedic (as currently understood) when registration comes into place people can still practice their skills.  An ambulance service could still employ people and still authorise them to practise as they do now.  In the long term that may not be defensible and the community will say they want paramedics in their ambulances in the same way they want doctors in the hospital emergency room and nurses in nursing homes.  As the status of the profession increases it will become harder for employer to engage non paramedics, even if they have the same training and skills, to do the work that becomes defined as paramedic work.

Registration is a first step in the developing professionalisation project.  It is up to the Paramedicine Board to manage that project to create a unique profession of paramedicine. For more detailed arguments see Ruth Townsend, The Role of Law in the Professionalisation of Paramedicine in Australia, Unpublished PhD thesis, ANU, 2018.

Conclusion

When paramedic registration comes into place only a registered paramedic can use the title ‘paramedic’.  Anyone who wants to use that title needs to register with the Paramedicine Board.  Because the National Law does not define scope of practice people who are not registered will still be able to practice as they do now, but they won’t be able to use the title ‘Paramedic’.

Anyone who currently works, or think they work as a paramedic could apply for registration and if granted they will be able to use the title paramedic. Anyone who currently uses the title ‘paramedic’ will need to apply for registration if they want to continue to use that title.

… Ambulance Officers – perhaps those close to retirement – who want neither the status nor the cost of registration, but would like to keep doing their job, even though they would not be called a Registered Paramedic

Don’t have to apply for registration; but whether their employer will continue to employ them is a matter for that service. No doubt there are many industrial issues to be worked through during the transition phase – see Paramedic registration and changing the terms of employment (February 16, 2018).

If the advice from the Board is that ‘after registration you want to continue to practice in a way that is understood to be paramedic practice then you need to register even if you are not using the title’ then that is incorrect.

Categories: Researchers

Mandatory prison sentences – offering paramedics a placebo rather than protection

Michael Eburn: Australian Emergency Law - 3 August, 2018 - 09:42

That’s the title of an article that I wrote with my colleague Dr Ruth Townsend and which appears in the current issue of Response, the official journal of Paramedics Australasia.

Our argument is NOT that gaol terms for people who assault paramedics are not, and will not, be called for. Neither are we arguing that it is ok to intentionally assault paramedics. It’s not; and that’s why it’s illegal, as it should be.

Fundamentally our argument is that mandatory gaol terms will not decrease the risk of, or actual event of occupational violence directed toward paramedics and they may have adverse effects for paramedics. If we’re right we predict no significant downturn in violence due to the sort of changes proposed in Victoria, but we do predict more cases will be defended, more paramedics will have to give evidence in court and the conduct of the paramedics will be subject to closer scrutiny. Community trust in paramedicine may be diminished. These potential costs are achieved for the benefit of making paramedics think the government has done something for them; but it hasn’t, it’s only done something for itself. By offering mandatory sentencing the government is offering a placebo, a remedy ‘to humour or placate’ those calling for something to be done. No-one will hold the government to account when the policy fails to produce results, but the government can hope to ride a vote winning wave. The only winner from introducing mandatory sentences is the electoral appeal of the government. It’s a placebo – a procedure prescribed for the psychological benefit but that won’t address the cause of offending or reduce the risk of future offending.

You can read the full text of the paper (which includes references and some longer discussion that had to be deleted from the published version due to space restrictions) here.

 

Categories: Researchers

UK decision on withdrawing life sustaining medical treatment and possible implications for paramedic practice in Australia

Michael Eburn: Australian Emergency Law - 31 July, 2018 - 10:15

On 30 July 2018, the United Kingdom Supreme Court handed down its decision in An NHS Trust and others v Y [2018] UKSC 46 (and thank you to Bill Madden’s Medical + health law blog for bringing this case to my attention). (The UK Supreme Court is the ultimate court of appeal in the UK so it sits in the court hierarchy where the Australian High Court sits in the Australian legal system).

The case involved a decision to withdraw clinically assisted nutrition and hydration from a patient suffering a prolonged disorder of consciousness and whether or not it was necessary, in all cases, to seek court approval before the nutrition and hydration or other life sustaining treatment was withdrawn. Given the nature of the treatment the case has no direct application to paramedics, and given it is an English decision and based on the Mental Capacity Act 2005 (UK) and the European Convention on Human Rights it has little direct application in Australia.

Having said that the Court did look at the common law pre the 2005 Act and the common law between Australia and the UK is at least linked, if not ‘common’. In light of my post More on a patient’s apparent refusal of consent – NSW (July 28, 2018) it is useful to draw something from this decision of the UK Supreme Court. At [21] Lady Black (with whom Lady Hale, Lord Mance, Lord Wilson and Lord Hodge agreed) identified:

… the following three points of importance that are found in the speeches [in Airedale NHS Trust v Bland [1992] UKHL 5] and have relevance not only to the decision in the Bland case, but also to subsequent decisions, including the present one:

i) As has already been seen from In re F (Mental Patient: Sterilisation) (supra), it is unlawful to administer medical treatment to an adult who is conscious and of sound mind, without his consent; to do so is both a tort and the crime of battery. Such an adult is at liberty to decline treatment even if that will result in his death, and the same applies where a person, in anticipation of entering into a condition such as PVS, has given clear instructions that in such an event he is not to be given medical care, including artificial feeding, designed to keep him alive.

ii) Where a person, due to accident or some other cause, becomes unconscious and thus unable to give or withhold consent, it is lawful for doctors to give such treatment as, in their informed opinion, is in the best interests of the patient. Where it is no longer in the best interests of the patient to provide treatment, it may, and ultimately should, be discontinued (see, for example, p 867 of Lord Goff’s speech, with which Lord Keith of Kinkel and Lord Lowry agreed).

iii) The argument that artificial feeding (in that case by nasogastric tube) was not medical treatment at all, but indistinguishable from normal feeding, was rejected. Regard had to be had to the whole regime which was keeping the patient alive, and in any event a medical technique was involved in the feeding.

(Airedale NHS Trust v Bland was a case arising from the 1989 Hillsborough football disaster. Anthony Bland was left in a persistent vegetative state and doctors sought to remove life sustaining treatment. Legal advice said they may be subject to criminal prosecution, so they sought advice and approval from the courts.  For posts on this blog making refernce to Bland’s case see https://emergencylaw.wordpress.com/?s=airedale.  I also note that I wrote my Master of Laws thesis – Euthanasia and Medical-end-of-life decisions in Australia (University of Newcastle, Australia) – on the application of Airedale’s case in Australian law.)

Point (iii) from the list above will have little application to paramedics but (i) and (ii) are relevant and can be summarised, relevantly, as:

  • it is unlawful to administer medical treatment to an adult who is conscious and of sound mind, without his [or her] consent;
  • Where a person, due to accident or some other cause, becomes … unable to give or withhold consent, it is lawful … to give such treatment as …is in the best interests of the patient.

The Mental Capacity Act 2005 (UK) was passed to fill gaps in the UK law about who could make decisions on behalf of people who were not competent to do so.  In a case dealing with provisions of that Act (Aintree University Hospitals NHS Foundation Trust v James [2013] UKSC 67).  In the UK Supreme Court:

Baroness Hale gave a judgment with which the other justices all agreed. She restated, now with reference to the provisions of the MCA 2005, the position as to invasive medical treatment of a patient. Although going over ground covered in the pre-MCA 2005 cases, it is worth setting out the relevant passages in full, since they establish the up-to-date legal context for the questions that arise in the present appeal. She said:

“19.     … Generally it is the patient’s consent which makes invasive medical treatment lawful. It is not lawful to treat a patient who has capacity and refuses that treatment. Nor is it lawful to treat a patient who lacks capacity if he has made a valid and applicable advance decision to refuse it: see the 2005 Act, sections 24 to 26. Nor is it lawful to treat such a patient if he has granted a lasting power of attorney (under section 10) or the court has appointed a deputy (under section 16) with the power to give or withhold consent to that treatment and that consent is withheld; but an attorney only has power to give or withhold consent to the carrying out or continuation of life- sustaining treatment if the instrument expressly so provides (section 11(8)) and a deputy cannot refuse consent to such treatment: section 20(5)…

Baroness Hale underlined further, in para 22, that the focus is on whether it is in the patient’s best interests to give the treatment, rather than whether it is in his best interests to withhold it or withdraw it. She continued:

“If the treatment is not in [the patient’s] best interests, the court will not be able to give its consent on his behalf and it will follow that it will be lawful to withhold or withdraw it. Indeed, it will follow that it will not be lawful to give it. It also follows that (provided of course that they have acted reasonably and without negligence) the clinical team will not be in breach of any duty towards the patient if they withhold or withdraw it.”

To the extent that these passages rely on the Mental Capacity Act 2005 (UK) they are not applicable in Australia, but they do give insight into relevant law.

First the basic requirements for the common law principle of necessity, as described by Lord Goff in In Re F [1990] 2 AC 1 are:

… that, to fall within the principle, not only (1) must there be a necessity to act when it is not practicable to communicate with the assisted person, but also (2) the action taken must be such as a reasonable person would in all the circumstance take, acting in the best interests of the assisted person.

On this statement of principle, I wish to observe that officious intervention cannot be justified by the principle of necessity. So intervention cannot be … justified when it is contrary to the known wishes of the assisted person, to the extent that he is capable of rationally forming such a wish.

The common law, and the Mental Capacity Act 2005 (UK) provide that it is not ‘lawful to treat a patient who lacks capacity if he has made a valid and applicable advance decision to refuse it’. The common law in Australia as well as legislation such as the Medical Treatment Planning and Decisions Act 2016 (Vic), the Advance Care Directives Act 2013 (SA) is the same.  Treatment cannot be given where there is an informed prior refusal.

Legislation in all states and territories also provides for people to appointed to be able to consent on behalf of an incompetent person. In my post More on a patient’s apparent refusal of consent – NSW (July 28, 2018) I discussed the power of the ‘person responsible’ to make decisions and that was in the context of a person who ‘on any other day, displays capacity & competency however today he or she has an infection/affected by drugs/stroke that is causing acute confusion. Today they cannot display capacity or competency…’ This is an emergency condition and the person responsible will be unable to make an informed decision about treatment.  At the point that the paramedics are on scene the patient’s condition could not be properly identified or prognosis made nor could the steps set out in the Act to obtain the consent of the person responsible be followed.  Further, as noted in that post, it is my view that the Guardianship Act 1997 (NSW) is not intended to apply to care provided by paramedics but care provided by medical practitioners. It anticipates a situation such as that in An NHS Trust and others v Y where there has been time to assess the patient, form a diagnosis and prognosis and consider all the various treatment options when determining what treatment will, and will not be, in the person’s best interests.

Under the Guardianship Act 1997 (NSW) a person can appoint an enduring guardian and one of the guardian’s functions is to ‘decide the health care that the appointor is to receive’ (s 6E). The guardian can consent to health care (s 36).  There is no express power to refuse consent but it must be implied, if one can consent one can also refuse consent. A guardian who has been authorised by the NSW Civil and Administrative Tribunal to do so may ‘override the patient’s objection to the carrying out on the patient of major or minor treatment’ (s 46A).

The situation in that earlier discussion (More on a patient’s apparent refusal of consent – NSW (July 28, 2018)) would be different if the person had been under ongoing care for a particular condition and they were now at the end point of that process and either they had made a valid advance care directive (relying on either the common law or statutory provisions in their state or territory) or the ‘person responsible’ was an appointed guardian who in consultation with the treating medical team had made an informed decision for example that the patient was not for resuscitation. In that case the guardian is not so much refusing consent as communicating to paramedics that relevant medical decisions have been made.  This in turn will communicate that treatment which may otherwise be thought to be in the best interests of the patient are not in fact in the best interests of this patient.

Conclusion

The decision in An NHS Trust and others v Y [2018] UKSC 46 is a case from the United Kingdom and therefore not directly relevant in Australia.  Further it was about medical care not emergency care by paramedics so again it is of limited precedent value.  It does however serve to reinforce to fundamental principles of the common law, law that I would suggest is common to both the United Kingdom and Australia and that is:

  • it is unlawful to administer medical treatment to an adult who is conscious and of sound mind, without his [or her] consent;
  • Where a person, due to accident or some other cause, becomes … unable to give or withhold consent, it is lawful … to give such treatment as …is in the best interests of the patient.

With respect to third parties giving directions to paramedics who are responding to an emergency call they are not in a position to refuse consent on behalf of their loved ones.  They cannot be informed or know of the person’s condition or prognosis and cannot give (or withhold) consent as required by the Act.  That was the basis of my conclusion in More on a patient’s apparent refusal of consent – NSW (July 28, 2018).

The situation is different if the person has been appointed, either by the Tribunal or by the patient as an enduring guardian and in consultation with the treating medical team a decision has been made to withhold certain treatment.  Whether we see that as the person refusing consent on behalf of the patient or communicating an earlier refusal is irrelevant. If that prior decision has been made eg that the patient is not for resuscitation, then it should be honoured.

Categories: Researchers

More on a patient’s apparent refusal of consent – NSW

Michael Eburn: Australian Emergency Law - 28 July, 2018 - 19:21

Today’s question come from a NSW paramedic who has

…some questions around patient consent. If my patient, on any other day, displays capacity & competency however today he or she has an infection/affected by drugs/stroke that is causing acute confusion. Today they cannot display capacity or competency but still refuse treatment, transport and our assistance.

  1. Can we take this person to hospital against their will if we are the only person responsible to make that decision for them? Would we be protected under the Guardianship Act 1987? Do we need to contact NCAT to gain permission?
  2. If a patient has the same symptoms, still refuses any treatment or transport and the person responsible – ie wife also does not consent to treatment, can we override their decision if it’s in the patient’s best interests?

To refuse treatment a person must be informed; competent and the refusal must extend to the situation that has arisen (In Re T [1992] EWCA Civ 18).  A person has decision-making capacity if they are able to understand the nature of the suggested treatment, weigh up the consequences of and communicate his or her decision (In Re C (Adult: Refusal of Treatment) [1994] 1 WLR 290; Gillick v West Norfolk and Wisbech Area Health Authority [1986] 1 AC 112, 169). If a person is not competent then treatment that is reasonably necessary and in their best interests may be given (In Re F [1990] 2 AC 1; see also The doctrine of necessity – Explained (January 31, 2017)).

Question 1

The Guardianship Act 1987 (NSW) provides for decision making for those who are not able to make their own decisions including decisions with respect to medical care.  Under that Act medical treatment means ‘medical treatment (including any medical or surgical procedure, operation or examination and any prophylactic, palliative or rehabilitative care) normally carried out by or under the supervision of a medical practitioner’.  On one view care given my paramedics is not medical treatment as it is not given ‘by or under the supervision of a medical practitioner’ and that would make sense.  The Act is much more directed to long term care where there is opportunity to engage with guardians, to discuss risks and obtain informed consent or refusal to medical treatment.

The Act does say (s 37):

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

(a) to save the patient’s life, or

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

The Act does allow treatment in an emergency but it must be noted that requires a medical practitioner to have the necessary belief.  A paramedic (even when paramedics are registered) is not a medical practitioner (save for those rare few who are and will be dual registered).

Answer to Question 1

My answer to question 1 is therefore that yes the paramedic can take this person to hospital against their will if we are the only person responsible to make that decision for them.  The justification for that is the common law doctrine of necessity not the Guardianship Act 1987 (NSW).  They would not need to contact NCAT to gain permission.

Question 2

The concept of the ‘person responsible’ is found in the Guardianship Act 1987 (NSW). Section 33(4) says:

There is a hierarchy of persons from whom the “person responsible” for a person other than a child or a person in the care of the Secretary under section 13 is to be ascertained. That hierarchy is, in descending order:

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

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

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

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

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

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

We can infer that the ‘wife’ is the person responsible (s 33(4)(b)).  Section 36 says:

Consent to the carrying out of medical or dental treatment on a patient to whom this Part applies may be given:

(a) in the case of minor or major treatment–by the person responsible for the patient…

One might infer that if a person can consent, they can also withhold or refuse consent. However, in order to obtain consent from a person responsible, a number of steps must be followed (s 40).  It would not be possible, nor is it intended, that a paramedic could or would go through those steps.

As noted above, it is arguable that care provided by paramedics is not ‘medical … treatment on a patient to whom this Part [of the Guardianship Act] applies’.

Answer to Question 2

The Guardianship Act 1987 (NSW) is not intended to limit the ability to apply emergency medical care (s 37).  It is relevant to providing other medical care to people who cannot consent.  Medical care is care provided by medical practitioners. A paramedic does not provide medical care, he or she provides paramedical care and that is outside the scope of the Act.

The doctrine of necessity says that treatment may be given that is reasonably necessary and in the patient’s best interests but not if that treatment is contrary to the known wishes of the patient. If a patient’s spouse says that a person does not want the treatment that is being proposed that may be something that requires paramedics to stop and think about whether the treatment should be given.

For related posts, see:

A: https://emergencylaw.wordpress.com/?s=consent;

A: https://emergencylaw.wordpress.com/?s=necessity.

Categories: Researchers

Hurdles for common law compensation for Victorian paramedic

Michael Eburn: Australian Emergency Law - 27 July, 2018 - 14:13

All Australian states and territories have no fault workers compensation schemes. This means that a person injured at work receives compensation for loss of income and to meet medical expenses regardless of fault.  The worker doesn’t have to prove anyone was negligent and the worker is entitled to compensation even if they contributed to their own injury.  The trade-off for this scheme is that everyone gets compensation, but they get less than they would under a fault based or common law scheme.

Some states, including Victoria, have also introduced no fault compensation for motor vehicle accidents whilst other jurisdictions, notably the Australian Capital Territory, retain a more traditional common law system.  Less people get compensated but what they may recover is more generous and more likely to cover all their losses. The ACT has recently undergo an interesting experiment in law reform, empanelling a citizen’s jury to review the motor accidents compensation scheme and make recommendations for reform – For discussion of the process and the outcomes see

The process and the outcome have not been without critics, see:

Some jurisdictions, like New South Wales, retain some common law rights. Readers may recall debates during the late 1990’s about an ‘insurance crisis’ and how much common law damages were costing the community.  Without giving references the material I’ve read has all said that the issue was not the quantum of damages but the management of insurance companies that was the problem. Whatever the truth of the matter the insurers and the tabloid press were able to talk up the ‘problem’ and that led to law reform that severely restricted common law rights.  Legislation was passed to both to limit who can claim and how much they can recover.

In Quick v Ambulance Victoria & Anor [2018] VCC 1075 (12 June 2018), Mr Quick, a paramedic employed by Ambulance Victoria came face to face with the restrictions in Victoria.  Under the Accident Compensation Act 1985 (Vic) the applicant had to get leave from the court to bring an action for common law damages.  In order to bring a common law claim for loss of earning capacity Mr Quick had to prove that he had suffered at least a 40% loss of earning capacity.  The rationale for a rule such as this is to limit common law claims to only ‘serious’ injuries.

Mr Quick had two distinct mechanisms of injury. First he developed ongoing neck and shoulder pain from the use of the computers provided to paramedics to enter patient treatment records.  His injuries were first reported in 2010 and he had ongoing treatment, including surgery, and time off work.   Then on 24 December 2015 Mr Quick was assaulted – he was ‘was punched in the right eye while sitting in an ambulance’.  The impact of this assault was to aggravate his neck and shoulder injuries. He continued to have ongoing treatment including more surgery and more time off work. The problem for the court was trying to determine how much loss was caused by the occupational use of the tablet computers and how much was due to the assault.

Mr Quick had continued to work as a paramedic since symptoms had first developed albeit he had time off and had been given some modified duties. Before the assault it was admitted he was earning about 60% of the income of a full time paramedic, but after the assault he could no longer work.    The court was satisfied that because of the assault “he has a permanent loss of earning capacity of 40 per cent or more” and was therefore permitted to bring a common law claim with respect to the assault.

With respect to the injuries caused by the occupational use of the tablet computers, that was more complex.  Whilst he had those injuries he had continued to work as a paramedic and there was no reason to think, but for the assault, he would have continued in that role.   At [209]-[211] Bourke J said:

Taking into account all the evidence, I am not satisfied that the tablet injury is a cause of the plaintiff’s loss of earning capacity as at the date of hearing.

As counsel for the plaintiff conceded, if this application had been heard before the assault, it would have failed and it could not have been established the plaintiff suffered the requisite 40 per cent loss.

The plaintiff was working full time, albeit on modified duties, until the time of the assault.  As he deposed in some detail, it was the assault that significantly changed his neck condition, resulting in an inability to work to the present and interfering with a range of other activities to a significant degree.

Accordingly Mr Quick is entitled to bring a common law claim with respect to the assault but not with respect to the injuries caused by the occupational use of the tablet computer.

That is just the start

That is just the start of the matter.  This case only gives Mr Quick permission to bring the common law claim. It doesn’t prove that claim.  Now he will have to bring the action and prove that someone, presumably Ambulance Victoria was negligent in the way it managed the risk of assault.  Further common law damages will be limited to those damages caused by the assault given that he had an underlying or pre-existing condition.  Proving fault and the value of the damage caused by the assault will both be time consuming and difficult.   Just because leave to proceed has been granted it doesn’t mean the common law proceedings will be successful.

The rule of law

Many people may say that this is outrageous and perhaps it is.  Here is a paramedic who has been injured at work in egregious circumstances and he’s being put through these hurdles by Ambulance Victoria, the Victorian WorkCover Authority and the County Court of Victoria.  That is however a fundamental principle of the rule of law.

It is parliament that passed the laws that restrict access to common law claims and it is parliament that passed the law that requires court approval before common law proceedings can be filed.  The relevant insurer for Ambulance Victoria (ie WorkCover Authority) is obligated in order to properly perform its role, to apply that law and to resist applications where the claimant does not meet the ‘serious injury’ threshold.  It is the role of the County Court to apply the law as written by Parliament.  It was not open to any of those agencies to, for example, ignore the provisions of the Accident Compensation Act 1985 (Vic) and pay compensation that was not provided for in that Act.

If readers are outraged that a paramedic who has been assaulted at work, or anyone, has to go through these hurdles to get compensation for their loss of income and career that should be taken up with the legislative arm of government ie with the elected members of Parliament.

 

Categories: Researchers

Queensland Ambulance not negligent in treatment of patient’s extreme asthma

Michael Eburn: Australian Emergency Law - 25 July, 2018 - 12:32

On 21 July 2002, Ms Masson suffered an extreme asthma attack.   An ambulance was called at 22.52 and the first paramedics were on scene at 22.58. On arrival, the paramedics noted bystanders were performing CPR.  On examination, Ms Masson was found to be cyanotic, with a respiratory rate of 2 breaths per minute.  She was tachycardic (her pulse was 150 beats per minute) and hypertensive (blood pressure 155/100).

The treating intensive care paramedic administered two milligrams of intravenous salbutamol between 22.59 to 23.20.  This was twice the dose set out in the Queensland Ambulance Clinical Practice Manual but nothing turned on that.   The salbutamol appeared to have a positive effect.  She was loaded into the ambulance at 23.14 at which time ‘she had a regular pulse rate of 94, improved but still high blood pressure of 140/100, a respiratory rate of 14 … and her colour was normal rather than cyanosed.  Her GCS score remained at six.’  En-route to hospital Ms Masson’s condition deteriorated.  ‘By 23.19 her heart rate had dropped markedly to 40 beats per minute, her respiratory rate had reduced to 12 retractive breaths per minute and blood pressure was absent.  Cardiac arrest was imminent’.   The paramedic administered 100 micrograms of adrenaline and intubated the patient.  He also arranged for his partner to stop the ambulance and he ‘conducted an emergency left side thoracostomy’ to relieve a tension pneumothorax. He did not attempt to relieve the right sided tension pneumothorax on the basis that he was now able to get air into her left lung and they were very close to the hospital.  Two further 100 microgram doses of adrenaline were also given, so that a total of 300 micrograms of adrenaline was administered before arrival at hospital.

Despite the efforts of the paramedics and hospital staff, ‘Ms Masson lingered, catastrophically brain damaged in around the clock care, for many years before her death in 2016.’  A personal injuries action against the State of Queensland, alleging negligence by Queensland Ambulance Service (QAS) paramedics was commenced sometime before her death.  The matter did not come on for hearing until February 2018, some 16 years after the injury.  On 23 July 2018, Justice Henry (‘Henry J’) of the Queensland Supreme Court handed down his decision – Masson v State of Queensland [2018] QSC 162 – finding that there had been no negligence by the paramedics involved in Ms Masson’s care.

The Evidence

The court heard from 3 experts in emergency medicine and 1 senior paramedic called for the plaintiff and the same number of experts for the defendant – 6 doctors and 2 expert paramedics in total, as well as evidence from the treating paramedics and people who had assisted Ms Masson at the time of her collapse.

The issues

It is well known that in a case alleging negligence the plaintiff has to show that the defendant owed them a duty of care, failed to provide ‘reasonable care’ and that failure caused their loss or damage.

In this case the issue of duty of care was admitted.  The State of Queensland admitted that it, through QAS and the QAS paramedics owed Ms Masson a duty to provide reasonable care to her.  The State also admitted that it was vicariously liable for any negligence by its employed paramedics.  The issue of damage was not in dispute that is there was no doubt that Ms Masson, if she could prove negligence had suffered catastrophic damage.  The value of the damages, if liability was established, was agreed at $3,000,000.

The issues where

  1. Had the QAS either in the way it wrote its Queensland Ambulance Clinical Practice Manual or trained its paramedics, or the paramedics in the way they diagnosed Ms Masson, understood the manual or applied the treatment guidelines failed to provide ‘reasonable care’? and
  2. If ‘yes’ did that cause Ms Masson’s catastrophic brain injury or, to put that another way, if the paramedics had given different treatment at the scene would Ms Masson have recovered?

The essence of the allegation was that the paramedics should have administered adrenaline, not salbutamol, when they first arrived and this would have been effective to reverse Ms Masson’s condition, allowed her to breath and would have meant she did not suffer permanent brain damage.

Standard of care

The standard to be expected from an ambulance service and its paramedics is ‘that of the ordinary skilled person exercising and professing to have that special skill’ ([29]).  The standard is not determined by simply asking what does everyone else do or, in this case, did the paramedics follow the Clinical Practice Manual.  The Manual itself may well suggest sub-standard care.

Adrenaline versus salbutamol

The expert evidence was that adrenanline was required where a patient was in cardiac arrest or was suffering an anaphylactic reaction.  Further salbutamol was unlikely to be effective where the patient was bradycardic (ie a slow heart rate), with poor perfusion and poor cardiac output.   It was a line ball call. The judge identified the competing issues at [90]-[91]:

At the time of initial treatment Ms Masson was not known to be in cardiac arrest or suffering an anaphylactic reaction, so it was not inevitable that adrenaline should have been administered.  Nor was she suffering from conditions known to mitigate against the utility of salbutamol, such bradycardia, decreased perfusion and decreased cardiac output.

Ms Masson was however in extremis, which meant that adrenaline would ordinarily have been the preferred drug to administer, subject to her discrete conditions.  Of those conditions her cyanosis and likely acidosis were conditions reinforcing the extremely dire state she was in and tending to confirm the appropriateness of administering adrenaline.  On the other hand, her high heart rate and blood pressure were conditions founding a legitimate concern that the administration of adrenaline might worsen her state by plunging her into a dangerous arrhythmia or causing her heart to stop – that is, that it would heighten the risk of death.

The standard of care does not require a guarantee of safety or good outcome, it requires a ‘reasonable response’.  His Honour said (at [93]):

I conclude that there would have existed a responsible body of opinion in the medical profession in support of the view that Ms Masson’s high heart rate and high blood pressure, in the context of her overall condition, provided a medically sound basis to prefer the administration of salbutamol to the administration of adrenaline at the time of initial treatment.

The use of adrenaline rather than salbutamol was not clearly called for by the scientific knowledge and state of practice at that time.

The Clinical Practice Guidelines

It was alleged that the paramedics had been negligent for not following the QAS clinical practice guideline.  A flow chart was included in the guidelines, reproduced in the judgement and copied, below.

The plaintiff argued that even though Ms Masson may not have been in cardiac arrest she was in respiratory arrest and therefore she was ‘in arrest’, and if the words ‘Imminent Arrest’ meant only cardiac arrest that was indeed ‘imminent’.   Second her Glasgow coma Scale was less than 12 and therefore the treatment should have proceeded along the ‘yes’ arrow and that called for the administration of adrenaline.

The defendant, QAS, on the other hand, argued that she was no bradycardic or with absent pulse so the criteria for ‘yes’ were not met; but even if they were the guideline called on the paramedic to ‘consider’ adrenaline, it did not mandate its use.

The judge said they were both right, and they were both wrong.  First the list of indicia (GCS<12, Bradycardia/absent pulses) were meant to be read as ‘or’ (not ‘and’) so the presence of any one may indicate that the appropriate answer to the first decision point was ‘yes’.   This was also consistent with the actions of the paramedics who did give 100% O2 and did use positive pressure ventilation to assist the patient’s ventilation.  In that sense the plaintiff was correct, Ms Masson was in respiratory arrest (even with a respiratory rate of 2 breaths per minute) and had a GCS<12, she was ‘in extremis’ so at the first decision point the answer was ‘yes’.

But even though the answer at that first decision point was ‘yes’, that did not mandate the use of adrenaline, it required the paramedics to consider its use.  The judge noted that the Case Management Guidelines were indeed guidelines, he said (at [96]):

It is noteworthy that on the manual’s own terms its case management guidelines are not proscriptive and rather are provided to guide and assist patient diagnosis, management and care.

In a statement the treating paramedic referred to ambulance protocols, Henry J said this evidence:

… curiously introduces the term “protocol”, which is not a term used in the manual.  I doubt it is term favoured by [the paramedic], whose evidence showed he understood a protocol requires the taking of a fixed course whereas a guideline permits a greater flexibility of response allowing for the application of clinical judgment.

It was also said, given Ms Masson’s tachycardia and hypertension, that the Case Management Guidelines and/or the Clinical Practice Manual chapter on pharmacology did not permit the administration of adrenaline. Henry J referred (at [149]) to ‘the curious and erroneous references in … evidence to the asthma guideline prohibiting or not permitting the administration of adrenaline’.   The indications for adrenaline (eg – Bradycardia) did not rule out its use in other circumstances.

The purpose of the Clinical Practice Manual was to ‘… provide Queensland Ambulance Officers with a comprehensive guide to prehospital clinical practice’.  The Case Management Guidelines ‘… provides diagnostic patterns of each listed condition to assist in arriving at an ambulance provisional diagnosis, and guiding principles to assist in patient management’.  They were not intended to be prescriptive but to leave room for clinical judgement.

No negligence

In this case the treating paramedic was faced with a dilemma that the various medical experts noted.  Ms Masson was critically ill, there was a choice between salbutamol and adrenaline.  Some symptoms called for adrenaline, other signs and symptoms suggested it was not safe to use.   Answering ‘yes’ to the question was arrest imminent required the treating paramedics to ‘consider adrenaline’ and the evidence was that they did consider it, and ruled it out.  At [151] Henry J said:

The asthma guideline did not require adrenaline to be administered.  It prompted consideration of the administration of adrenaline.  The administration of adrenaline was considered but rejected by reason of the concerning presence of tachycardia and hypertension.  The presence of those conditions would have been regarded by a responsible body of opinion in the medical profession as supporting the view that Ms Masson’s high heart rate and high blood pressure, in the context of her overall condition, provided a medically sound basis to prefer the administration of salbutamol to the administration of adrenaline at the time of initial treatment.  Opting to administer salbutamol in preference to adrenaline in those circumstances was a reasonable response to the known risks.

And at [155]:

The treatment which was administered did not fall below the standard of care to be observed by ambulance officers and was not contrary to the QAS asthma guideline.  No breach of the duty of care has been established and the claim must fail.

Causation

Finding that there had been no breach of the standard of care is the end of the case, but His Honour went on to consider whether, if the decision not to administer adrenaline had been negligent, there was evidence to support a conclusion that this was a cause of Ms Masson’s brain injury. He did this to deal with all the arguments and if there is an appeal, and the Court of Appeal holds that his reasoning on breach of duty was wrong, then this issue has been determined and a further trial isn’t required.

On causation Henry J noted that Ms Masson had a history of severe asthma attacks and these had been resolved in hospital or by paramedics with the use of adrenaline.  The treating paramedics in this case did not know that history but it was evidence to suggest that if adrenaline had been used, it may have been effective.  His conclusion is at [182]:

While the issue is finely balanced, I conclude that if, contrary to my findings, there was a breach by reason of a failure to administer adrenaline during the initial treatment, that breach was likely a material contributing cause of Ms Masson’s injury.  Put differently and aided by information the ambulance officers did not have, I conclude on the balance of probabilities that it was not too late at the time of initial treatment for Ms Masson’s injury to be avoided by administering adrenaline.

That is if the decision not to use adrenaline had been negligent, he would have found that it did cause or significantly contribute (which is all that is required) to Ms Masson’s ultimate injuries.

Is it over?

Not quite.  The usual rule is that the loser has to pay the winner’s legal costs.  At [191] Henry J said ‘While costs would ordinarily follow the event, I will out of caution give the parties an opportunity to be heard’. The matter returns to court on 8 August 2018 for final orders as to costs.

That will be the end of the matter unless the plaintiff choses to appeal. They cannot appeal just because they do not like the result. They can only appeal if they can argue that the judge made a mistake in his interpretation of the evidence, analysis of or application of the law.  Whether they will seek to appeal, I cannot say.

Discussion

This was the decision of a trial court so it does not set a precedent (see Accessing a judge or magistrate’s reasons for decision (November 18, 2016)).  Even so it says somethings that, apart from the actual result, will be of interest to paramedics and readers of this blog.

First, there is much debate about the meaning and extent of vicarious liability. Coming through is the hidden subtext that employers will through employees ‘under a bus’ at the first opportunity.  I even read on one forum a claim that if a nurse is found to wear the wrong shoes to work, the employer will be able to escape liability.  That is, of course, nonsense.  Whilst in this case the defence was that the paramedics had indeed followed the guidelines and protocols it is worth noting that there was never any doubt that win or lose, it was the state of Queensland, not the paramedic who would be liable.

Second the case reinforced the professionalism and the authority of paramedics to make clinical judgements.  In Queensland at least, the Clinical Practice Manual and Case Management Guidelines are indeed guidelines, intended to facilitate good clinical decision making, not to prescribe what is to happen in each case. As the guidelines said in 2002 (at [98] with emphasis added by Henry J):

Officers must consider the best possible care for the patient.  The QAS Clinical Practice Manual is designed to assist clinical judgment, using the problem solving approach, to achieve best practice.  It is acknowledged that every situation is different.  Deviations from the guidelines will occur but must be documented and audited, and officers must be able to justify that their treatment was in the patient’s best interest.

Paramedics in 2002 were not automatons but trusted medical professionals and that is even more the case in 2018 as evidence by the move to bring paramedicine under the national registration scheme for health professionals.

Third and finally, the case demonstrates the sheer inefficiency of a legal system that allows a case like this to take 16 years for finalisation.  For everyone involved having these proceedings take so long must simply compound the tragedy that ended in Ms Masson’s death.  The treating paramedic was writing statements 7 years after the event and giving evidence, and being asked to recall his clinical decision making process 16 years after the event.  It is not surprising as Henry J noted (at [146]):

The tone and manner in which … answers were given made it obvious that [the treating paramedic] had difficulty, doubtless because of the very long lapse of time (if not perhaps the contaminating contributions of others in legal forums), in distinguishing between hindsight assumption and actual recollection.

That was not said as a criticism, just a reflection on the reality of the situation.

If Ms Masson’s estate had won this case there would have been a verdict for $3 million but that would not have been a windfall for the estate.  From 2002 to 2016 Ms Masson received 24 hour care.  That was paid by someone, probably Medicare, Commonwealth social security, private funds or other forms of social welfare.  Expenses that have been met by Medicare or Social Security have to be repaid.  It is often the case that even with large dollar amounts for compensation, all that a claim for damages does is transfer money from the insurer to various government agencies that have been providing support.  Queensland’s insurer may have avoided paying $3 million in damages but with the time taken, the legal fees, the cost of the 8 expert witness, the costs of providing the court, the judge and the court staff, one can’t help but think this case already cost $3 million.  Diverting all that money to meet the needs of those with catastrophic injuries rather than trying to decide who’s to blame may be a more useful way to spend the money.

Categories: Researchers

WHS at unit headquarters

Michael Eburn: Australian Emergency Law - 23 July, 2018 - 17:34

Today’s question comes from a NSW SES volunteer who has been:

… speaking to my volunteer OHS reps about the level of compliance required at our volunteer unit HQ, specifically along the following lines:

Given that most members at the unit are trained in emergency first aid, do I need to formally appoint a first aid officer/s?

Do I need to appoint floor wardens, fire wardens, etc and practice evacuation drills at HQ?

Of course, common sense says to prepare for such events and we are improving our arrangements to reflect this but where is the benchmark for maintaining a safe work environment at volunteer HQ’s?

I’ll assume, without confirming, that the Work Health and Safety Act 2011 (NSW) applies with full force at the local unit headquarters.

The modern trend in WHS legislation is to move away from standards, and instead impose a risk management obligation on the person conducting the business or undertaking (the PCBU). In this case the PCBU is the NSW SES, not the local unit, so it is incumbent on the agency to determine its approach but, having said that, if we assume for the sake of the argument that the unit is a PCBU we can make an educated assessment of what may be required.

Under the Occupational Health and Safety Regulation 2001 (NSW) (now repealed) an employer who operated a work site with 25 or more employees had to provide trained first aid personnel.  Further they had to provide first aid kits that met the standards of First Aid Kit A, B or C depending on the number of workers and whether or not the workplace was a construction site.  Rules like this make for easy compliance but are not flexible and do not require the employer to actually think about the risk.

Today the Work Health and Safety Act 2011 (NSW) requires the PCBU to undertake a risk assessment.  With respect to first aid the Work Health and Safety Regulation 2017 (NSW) r 42 says:

(1)  A person conducting a business or undertaking at a workplace must ensure:

(a)  the provision of first aid equipment for the workplace, and

(b)  that each worker at the workplace has access to the equipment, and

(c)  access to facilities for the administration of first aid.

(2)  A person conducting a business or undertaking at a workplace must ensure that:

(a)  an adequate number of workers are trained to administer first aid at the workplace, or

(b)  workers have access to an adequate number of other persons who have been trained to administer first aid.

(3)  For the purposes of this clause, the person conducting the business or undertaking must have regard to all relevant matters, including the following:

(a)  the nature of the work being carried out at the workplace,

(b)  the nature of the hazards at the workplace,

(c)  the size and location of the workplace,

(d)  the number and composition of the workers and other persons at the workplace.

With respect to emergency evacuation the regulation (r 43) says:

(1)  A person conducting a business or undertaking at a workplace must ensure that an emergency plan is prepared for the workplace, that provides for the following:

(a)  emergency procedures, including:

(i)  an effective response to an emergency, and

(ii)  evacuation procedures, and

(iii)  notifying emergency service organisations at the earliest opportunity, and

(iv)  medical treatment and assistance, and

(v)  effective communication between the person authorised by the person conducting the business or undertaking to coordinate the emergency response and all persons at the workplace,

(b)  testing of the emergency procedures, including the frequency of testing,

(c)  information, training and instruction to relevant workers in relation to implementing the emergency procedures.

(2)  A person conducting a business or undertaking at a workplace must maintain the emergency plan for the workplace so that it remains effective.

(3)  For the purposes of subclauses (1) and (2), the person conducting the business or undertaking must have regard to all relevant matters, including the following:

(a)  the nature of the work being carried out at the workplace,

(b)  the nature of the hazards at the workplace,

(c)  the size and location of the workplace,

(d)  the number and composition of the workers and other persons at the workplace.

(4)  A person conducting a business or undertaking at a workplace must implement the emergency plan for the workplace in the event of an emergency.

Again, assuming for the sake of the argument that the Act imposes this obligation down to unit level, one can see what is required. From a first aid point of view if every operational member of the SES is trained in first aid and every SES vehicle and headquarters has an SES first aid kit a local unit controller might reasonably conclude that there is adequate first aid equipment in the headquarters, that everyone can access that equipment and there are sufficient people trained in first aid.  It would seem otiose (‘serving no practical purpose or result’) to formally appoint ‘first aid officers’.  On the other hand, in a large unit with both operational and headquarters staff, it might be considered that there is a risk that people will be injured, and you don’t want them to delay an operational response so someone who is likely to be in headquarters during operations is to be the first aid officer within the building.  The focus should be thinking about the job at hand, the risk and what is a reasonable response to that risk, rather than meeting a fixed or prescribed benchmark.

With respect to emergency procedures and thinking about different SES headquarters that I’ve been to, some are not much more than a garage, others are large multi-story buildings with a number of rooms including store rooms, training rooms and plant rooms.  One has to consider things like can the fire alarm be heard in all areas?  If there is an evacuation from a single room shed it’s probably easy to see if everyone’s out but if it’s a more complex building it may be prudent to appoint people to check that areas are clear.  Having a define assembly area and ensuring that the log on book is collected to mark people ‘out’ would seem prudent. Does this require the appointment of ‘floor wardens, fire wardens, etc and practice evacuation drills’?  Again, that requires a risk assessment considering the factors listed at r 43(3) above.  The answer won’t be the same for each local unit HQ.

Conclusion

Modern WHS legislation does not impose minimum standards for first aid or evacuation planning.  It requires the PCBU to develop policies, procedures and practices that meet the Act’s overriding obligation of ensuring health and safety at work.

In this post I have assumed that although the PCBU is the NSW SES the obligations in the Act and its Regulations apply with full force at unit level and with the Unit Controller as holding the duties of the PCBU. If that assumption is correct (and I don’t say it is) it demonstrates what is required.

It is not that a unit controller must appoint first aid officers and floor and fire wardens.  It’s that the unit controller in consultation with the members must think about those things and identify whether or not the requirements are met.  Are there adequate first aid facilities?  Are there adequate emergency procedures and do people know what they are?  What adequate looks like can vary from unit to unit taking into account the size of the unit, the type of work they do, the nature of their buildings etc.

 

 

 

Categories: Researchers

P plates for Victorian NEPT drivers

Michael Eburn: Australian Emergency Law - 20 July, 2018 - 19:55

A correspondent says that:

Non-emergency patient transport (NEPT) providers in Victoria have recently started hiring drivers still on probation.

Is there a requirement for them to display ‘P’ plates whilst driving NEPT vehicles?

The obligation to display P plates is set out in the Road Safety (Drivers) Regulations 2009 (Vic) r 55. The obligation to display a P plate does not apply (r 55(3)) to:

(a) a police officer who, in the course of duty, is driving a motor vehicle; or

(b) a member of the Country Fire Authority who is driving a motor vehicle in the course of fire fighting operations; or

(c) driving an ambulance service or a Victoria State Emergency Service vehicle in the course of duty.

The language of subparagraph (c) is odd as it doesn’t start with ‘a person’ or ‘a member’ but nothing turns on that.

The question then is what is an ‘ambulance service’ and therefore an ambulance service vehicle?  An ambulance is defined by the Oxford Dictionary (Online) as ‘A vehicle equipped for taking sick or injured people to and from hospital, especially in emergencies’.  It is clearly arguable that a NEPT is an ‘ambulance service’.

On the other hand, in Victoria ambulance services are regulated by the Ambulance Services Act 1986 (Vic). That Act defines ‘ambulance service’ as ‘an ambulance service created under section 23 or listed in Schedule 1’ (s 3); that is one of the 17 Ambulance Services that make up Ambulance Victoria.

NEPT providers are regulated by the Non-Emergency Patient Transport Act 2003 (Vic).  Under that Act ‘”ambulance service” has the same meaning as in the Ambulance Services Act 1986’ (s 3).  Whilst it could be argued, I would infer that for the purpose of the Road Safety (Drivers) Regulations 2009 (Vic) r 55 an ‘ambulance service vehicle’ would mean a vehicle operated by Ambulance Victoria, not an NEPT vehicle.

Conclusion

If my analysis is correct, then there is a requirement for a driver who holds a probationary licence to display ‘P’ plates whilst driving NEPT vehicles.

Categories: Researchers

Chasing up debts for emergency ambulance services in Victoria

Michael Eburn: Australian Emergency Law - 20 July, 2018 - 11:03

Following my earlier post, Paying for ambulance services in the ACT (July 16, 2018), I noted the following story being reported by the ABC:

Kathy Lord and Tim Lamacraft, ‘‘Good Samaritan’ chased by debt collectors after calling ambulance for man hit by car’, ABC News (Online) 19 July 2018.

I was asked to comment on the news story and had the privilege of being interviewed for ABC News24 and broadcast on ABC News Afternoons with Fauziah Ibrahim.  The audio from the TV interview was also edited into a story broadcast on many ABC radio stations.  See:

With respect to the story on PM, I did not say that the power to charge fees was set out in statute in all Australian States and Territories as I do note that is not the case in either Western Australia or the Northern Territory where the state governments do not operate ambulance services.

I also note that in Queensland there is a statutory authority to render an account for emergency ambulance services but not to Queensland residents.  Out of state visitors can expect a bill as can relevant motor vehicle and workers compensation insurers (Ambulance Service Act 1991 (Qld) s 53B). (Many people say that the fee for ambulance services in Queensland is included in power or utility bills but that appears not to have been the case since 2011 – see Community Ambulance Cover Levy Repeal Act 2011 (Qld))). Tasmania has similar arrangements to those in Queensland (Ambulance Service Act 1982 (Tas) s 36). In New South Wales there are prescribed fees but a NSW resident is charged only 51% of the Scheduled Fee for emergency ambulance services (Health Services Act 1997, Order Fixing A Scale Of Fees In Respect Of Ambulance Services, NSW Government Gazette No 67 of 23 June 2017, p 3013, [12]).

With respect to the story as originally published it is important to identify what is, and is not, being alleged.  ‘Jenna (surname withheld)’ is not alleging that she was asked to pay the ambulance bill.  She says ‘it was “unethical and outrageous” to chase a homeless person for medical debts and it was a breach of privacy for Ambulance Victoria to pass her details to ARL’.  Further, as the Ambulance Victoria spokesperson is quoted as saying ‘They called to identify if Jenna is responsible for the bill. She’s not responsible for the bill so that should’ve been the end of the matter.’  Further, Ambulance Victoria’s executive director of corporate services Robb Barr is quoted as saying “We provided the agency with the phone number, in this case used to call triple zero, as this can assist in making contact with a patient,” he said.

I infer then that she was contacted to make inquiries and to help locate the patient, not that it was alleged that the ambulance account was her responsibility.  Her concern was that they were pursuing a homeless man for the bill and that her details were given to the debt collectors.

As noted in an earlier post (Paying for ambulance services (October 4, 2014)), in Victoria:

… the Secretary of the Department of Health may set fees that an ambulance service may charge (Ambulance Services Act 1986 (Vic) s 10(5)) and the ambulance service must comply with the Secretary’s direction (s 10(6)). An ambulance service (remembering Ambulance Service Victoria is an umbrella title covering a number of separate ambulance services; ss 3 and 23, Schedule 1) may charge reasonable fees for the provision of its services (s 16) and by implication what is a reasonable fee is a fee that complies with the Secretary’s direction under s 10.

To hope that an agency like Ambulance Victoria will not pursue a debt against a homeless man means that they know he is homeless.  Most agencies will make some effort to contact a debtor even if they later write the debt off.

With respect to passing on Jenna’s details I don’t know the exact process and whether AV sells the debt to the debt collectors or whether the debt collectors are acting on AV’s behalf.  If a creditor sells a debt they may sell it for say $0.10 in the dollar which they see as better than nothing.  The debt collector can then try and collect the full debt. If they succeed they get $0.90 in the dollar but often they won’t succeed so they take the loss, on balance hoping that they money they do recover creates a profitable business.  If they are not sold the debt but act as agents for the creditor I would assume they get paid a fee whether they recover the money or not and the risk stays with the creditor.   I can’t comment on the ethics of debt collection agencies or what the arrangements were between this debt collector and AV.

What we do know is that the Australian Privacy Principles say that an agency, such as AV, that collects personal information such as the phone number used to call triple zero should use that information only for the purpose for which it was collected; see Privacy and Data Protection Act 2014 (Vic) Schedule 1, Principle 2 Use and Disclosure.  It begs the question of why information is collected.  It is not only for patient care but also for accounting purposes including rending the account that is authorised by statute (see also First aid patient records – who and what are they for? (January 31, 2015)).   The Privacy and Data Protection Act 2014 (Vic) s 17 provides for Victorian agencies to outsource various functions.

Although one can’t say, without knowing the relationship between AV and the debt collection agency, and the terms of any contract between them, it follows that the provision of Jenna’s information to the debt collection agency is not axiomatically a breach of the privacy laws in that State.  To again use a quote attributed to Ambulance Victoria’s executive director of corporate services Robb Barr, AV says:

“We provided the agency with the phone number, in this case used to call triple zero, as this can assist in making contact with a patient,” he said.

“A call was made by the agency [to Jenna] who had no link to the patient.

“No further contact should have been made.

They are admitting they provided the number and not conceding that was an error or mistake.  The concern they are acknowledging is that the recovery agency made follow up calls.

Conclusion

Whilst this story raises concerns about the conduct of Debt Collection Agencies (and I work at a legal advice clinic and  know that there is much to be concerned about) it doesn’t alter the conclusion that a person who rings triple zero is not responsible for the account.  There has been no suggestion in this story (as reported by the ABC) that Jenna was being perused for the bill.  And as AV says:

“A passer-by who calls triple zero for an ambulance will never be required to pay an invoice.”

 

 

 

Categories: Researchers

Transporting the mentally ill from NSW to the ACT

Michael Eburn: Australian Emergency Law - 18 July, 2018 - 09:41

This question comes from a NSW Paramedic who wants to know where their authority comes from when they cross the border into the ACT in order to deliver a patient to an ACT mental health facility.

The answer is that both NSW and ACT law applies. First NSWAS is an ambulance service created by the Health Services Act 1997 (NSW) not the Emergencies Act 2004 (ACT) so the paramedics employment and protocols all come from NSW even when travelling interstate so they have to treat the patient as directed by their employer.

Second, I assume that the patient has been scheduled under the Mental Health Act 2007 (NSW) not the Mental Health Act 2015 (ACT).  The NSW Act specifically has interstate application.  Section 174(1) says:

A person who may be taken to and detained in a mental health facility under Chapter 3 or under the Mental Health (Forensic Provisions) Act 1990 may be taken to a mental health facility in another State instead of a mental health facility in this State, if this is permitted by or under a corresponding law of the other State.

The relevant ACT law says at s 255:

A person apprehended in another State under a corresponding law may be taken to an approved mental health facility in the ACT by an authorised officer or interstate authorised person if the authorised officer or person believes on reasonable grounds that being taken to an approved mental health facility in the ACT is—

(a) in the best interests of the safe and effective treatment, care or support of the person ; and

(b) allowed under a corresponding law.

So that section says that an authorised officer (which I assume, without double checking includes a NSWAS paramedic) can transfer the patient into the ACT if that’s allowed under NSW law, which it is.

The authority of NSW paramedics to transfer a patient to the ACT is confirmed by the Mental Health (Treatment and Care) (Interstate Application of Mental Health Laws) Agreement 2003 between the ACT and NSW.

Conclusion

The answer to the question is that both the NSW and ACT laws apply because the laws say they do.  The NSW law says the patient can be transferred to the ACT and the ACT law says the same and points to the authority in the ‘corresponding law’ (ie the NSW law). So if a person (a paramedic) has the authority under NSW law to transport and treat a person with a mental health emergency they can transport them to, and treat them in, the ACT until they hand them over to the ACT mental health services.

Categories: Researchers

Proposed changes to sentencing laws for assaults on emergency workers before the Victorian Parliament

Michael Eburn: Australian Emergency Law - 17 July, 2018 - 15:12

Following public reaction to the decision in DPP v Warren and Underwood [2018] VCC 689 (see No gaol time for defendants who assaulted Victorian Paramedic (May 18, 2018)) the Victorian government announced there would be changes to the sentencing regime for people convicted of assaulting emergency workers – see Daniel Andrews MP, Premier, Protecting Our Emergency Workers: Joint Statement (21 May 2018) and Laws To Be Fixed So Jail Means Jail For Emergency Worker Attacks (22 May 2018).

The anticipated amendments were introduced to the Victorian Parliament as part of the Justice Legislation Miscellaneous Amendment Bill 2018 (Vic) (introduced on 20 June 2018).   You can read the Attorney General’s Second Reading Speech where he explains the reasons for the reforms and what the reforms are expected to achieve here – Victoria, Parliamentary Debates, Legislative Assembly, 21 June 2018, 2144 (Mr Pakula, Attorney-General).

The Bill, if passed, will make an offence contrary to ss 16, 17 or 18 of the Crimes Act 1958 (Vic), where the victim was, amongst others, ‘an emergency worker on duty’, a category 1 offence.  Section 16 refers to a person ‘who, without lawful excuse, intentionally causes serious injury to another’; section 17 refers to a person ‘who, without lawful excuse, recklessly causes serious injury to another person’ and section 18 refers to a person ‘who, without lawful excuse, intentionally or recklessly causes injury to another person’ (emphasis added).

When sentencing an offender for either a category 1 offence, a court ‘must make an order under Division 2 of Part 3’ of the Sentencing Act 1991 (Vic) (Sentencing Act 1991 (Vic) ss 5(2G) and 5(2H)).  Division 2 of Part 3 is headed ‘Custodial orders’.  Section 10AA ‘Assaulting, etc. emergency workers, custodial officers and youth justice custodial workers on duty’ appears in Division 2, Part 3.   Section 10AA says that where a person is being sentenced for an assault on an emergency worker they should receive a custodial sentence of not less than 3 years for an offence contrary so s 16 of the Crimes Act (s 10AA(1)), and not less than 2 years for an offence contrary to s 17 (s 10AA(2)). The minimum non-parole period for an offence contrary to s 18 is 6 months imprisonment (s 10AA(4)).  In any case, the court does not need to impose the minimum sentence if ‘special circumstances’ (defined in s 10A) exist.

If passed the Justice Legislation Miscellaneous Amendment Bill 2018 (Vic) will amend s 10A. The text below has the current wording of s 10A with the amendments in the Bill. What will be additional text is shown in italics, text that will be deleted is strikethrough.

(1) In this section—

“impaired mental functioning” means—

(a) a mental illness within the meaning of the Mental Health Act 1986 ; or

(b) an intellectual disability within the meaning of the Disability Act 2006; or

(c) an acquired brain injury; or

(d) an autism spectrum disorder; or

(e) a neurological impairment, including but not limited to dementia;

self-induced intoxication has the same meaning as in section 322T(5) and (6) of the Crimes Act 1958.

(2) For the purposes of section … 10AA … a court may make a finding that a special reason exists if—

(a) the offender has assisted or has given an undertaking to assist, after sentencing, law enforcement authorities in the investigation or prosecution of an offence; or

(b) the offender—

(i) is of or over the age of 18 years but under 21 years at the time of the commission of the offence; and

(ii) proves on the balance of probabilities that he or she has a particular psychosocial immaturity that has resulted in a substantially diminished ability to regulate his or her behaviour in comparison with the norm for persons of that age; or

(c) the offender proves on the balance of probabilities that—

(i) subject to subsection (2A) at the time of the commission of the offence, he or she had impaired mental functioning that is causally linked to the commission of the offence and substantially reduces the offender’s culpability; or

(ii) he or she has impaired mental functioning that would result in the offender being subject to substantially and materially greater significantly more than the ordinary burden or risks of imprisonment; or

(d) the court proposes to make a Court Secure Treatment Order or a residential treatment order in respect of the offender; or

(e) there are substantial and compelling circumstances that are exceptional and rare and that justify doing so.

(2A) Without limiting subsection (2), in the case of an offence against section 18 of the Crimes Act 1958 committed by a young offender against an emergency worker on duty, a custodial officer on duty or a youth justice custodial worker on duty, a court may make a finding that a special reason exists if-

(a) it believes that there are reasonable prospects for the rehabilitation of the young offender; or

(b) it believes that the young offender is particularly impressionable, immature or likely to be subjected to undesirable influences in an adult prison.

(2A) Subsection (2)(c)(i) does not apply to impaired mental functioning caused solely by self-induced intoxication

(2B) In determining whether there are substantial and compelling circumstances under subsection (2)(e), the court—

(a) must regard general deterrence and denunciation of the offender’s conduct as having greater importance than the other purposes set out in section 5(1); and

(b) must give less weight to the personal circumstances of the offender than to other matters such as the nature and gravity of the offence; and

(c) must not have regard to—

(i) the offender’s previous good character (other than an absence of previous convictions or findings of guilt); or

(ii) an early guilty plea; or

(iii) prospects of rehabilitation; or

(iv) parity with other sentences

(3) In determining whether there are substantial and compelling circumstances under subsection (2)(e), the court must have regard to— …

(ab) the Parliament’s intention that a sentence of imprisonment should ordinarily be imposed for an offence covered by section 10AA(4); and…

(c) whether the cumulative impact of the circumstances of the case would justify a departure from that sentence and, where relevant, minimum non-parole period.

(4) If a court makes a finding under subsection (2), it must—

(a) state in writing the special reason; and

(b) cause that reason to be entered in the records of the court.

(5) The failure of a court to comply with subsection (4) does not invalidate any order made by it.

There are other amendments but for the sake of space, I invite subscribers to this blog to read the Minister’s second reading speech for the details.

Discussion

It is not clear how these changes would affect the outcome of DPP v Warren and Underwood were that case to arise under these new laws. In that case, the submission of counsel and the decision of the judge were based on the sections as they are now.  We cannot know whether the judge would have found that the various circumstances in the proposed s 10AA would be met if the case had to be determined under this proposed law.

We can note that at least in the judgement there was no reference to intoxication at the time of the offence.  If that is the case the new s 10A(2A) won’t be relevant.  As the Minister says:

The Bill will clarify when impaired mental functioning can be established as a special reason. An offender will not be able to rely on impaired mental functioning where it was caused solely by self-induced intoxication. An offender who has a genuine mental illness or neurological impairment, but was under the influence of alcohol or another drug at the time of the offending, will still be able to rely on a special reason if there is evidence that the impaired mental functioning was due to their pre-existing impaired mental functioning and not their intoxicated state.

In DPP v Warren and Underwood there was nothing in her honours reasoning to suggest that the accused were relying on ‘impaired mental functioning … caused solely by self-induced intoxication’.  They were relying on ‘a genuine mental illness or neurological impairment’.  There state of intoxication at the time of the offence was not part of her honours reasoning so to that extent it would appear that these amendments would make no difference if DPP v Warren and Underwood were sentenced after these amendments come into force.

The Minister also says:

The Bill will also include a new exception to the requirement that a court must impose a custodial sentence for people who commit certain Category 1 offences (other than those involving gross violence) against emergency workers, custodial officers or youth justice custodial workers on duty and whose mental or other impairment substantially and materially reduces their culpability.

Where this exception applies the court will be able to impose a new mandatory treatment and monitoring order, alone or in combination with imprisonment. This new order will require the imposition of two mandatory conditions — requiring the offender to either attend treatment or comply with a justice plan to address their specific impairment, and requiring regular attendance at court for the purposes of monitoring compliance. A mandatory treatment and monitoring order will also be able to be combined with a period of imprisonment or any other optional CCO conditions. The consequences for contravening a mandatory treatment and monitoring order will be more significant than the consequences currently in place for breaching a CCO, with limited sentencing options available for the breach of the order and the original offences.

The test will be that ‘the offender proves on the balance of probabilities that, at the time of the commission of the offence, the offender had impaired mental functioning that is causally linked to the commission of the offence and substantially and materially reduces the offender’s culpability’.  It is likely that Warren and Underwood could have met that test.  If that is the case they may have received a mandatory treatment and monitoring order.  It has to be noted that in the decision that was the subject of criticism, they were subject to orders to continue with treatment and to be subject to monitoring including court supervised reporting.   In effect they received the sentence that would be required under the new provisions.

Conclusion

In DPP v Warren and Underwood the sentencing judge was required to impose a custodial sentence unless special circumstances existed. She found those circumstances did exist so exercised her discretion according to law.  The obligation to impose the custodial sentence, except when special circumstances existed, was all found in Division 2 of Part 3 of the Sentencing Act 1991 (Vic).

With the passage of the Justice Legislation Miscellaneous Amendment Bill 2018 (Vic) a sentencing court will still have to impose a custodial sentence under Division 2 of Part 3 of the Sentencing Act 1991 (Vic) unless special circumstances exist.  The definition of ‘special circumstances’ will have changed and it will be harder to satisfy the new tests, but it does not mean that the defendants in DPP v Warren and Underwood would not meet those tests if the case were to be heard once the changes have been made.

The next step

The Bill still has to pass through both houses of parliament so it may be subject to change.  It must then receive Royal Assent from the Governor.  The Governor will never refuse Royal Assent to a bill passed by Parliament (so those that hope that our system of government imposes a final check on parliaments being oppressive are sadly mistaken). Once assented to the law will commence on the various dates set out in s 2 of the Bill.

Categories: Researchers

Paying for ambulance services in the ACT

Michael Eburn: Australian Emergency Law - 16 July, 2018 - 18:57

This question again revisits the issue of ambulance bills where the patient did not ask for the ambulance to be called. For related posts see:

Today’s question considers the position in the Australian Capital Territory. My correspondent:

… had someone call and ambulance to my address despite myself and others suggesting not to call as it was not necessary and now I have been given the bill to pay. Am I required to pay as it was called for me despite not giving consent or is the caller responsible for the fee, if so how do I dispute this fee or transfer the fee to the original caller without court interaction.

The caller is not liable

First and foremost, the caller is not liable and never will be.  No-one is going to set up a system where a person who calls triple zero is liable for the bill if the patient refuses to pay.  People have to be able to call triple zero when they don’t know if an ambulance is required (eg they’ve just seen the car accident) or where they think an ambulance is required even if the patient does not.  In the context of an institution such as the Australian National University consider a person who is injured or ill in the library but doesn’t want an ambulance called as they can’t afford it.  The library staff can’t just leave the person there and what’s more they can’t just leave a person who they think actually needs an ambulance.  The person may want to refuse treatment but that is harder to do when paramedics are on scene saying ‘you really need to go to hospital’.  There is no chance that a person who rings for an ambulance is or will ever be liable for the bill.

The Emergencies Act 2004 (ACT) and the Emergencies (Fees) Determination 2018

The only person who can be liable, if anyone, is the person who receives the care.  In the ACT the relevant legislation is the Emergencies Act 2004 (ACT).  Section 201 says:

(1) The Minister may determine fees for this Act.

(2) A fee determined for a service provided to a person by an emergency service is payable by the person even if the person did not ask for, or consent to, the provision of the service.

The Emergencies (Fees) Determination 2018 sets out the fees for ambulance (and other emergency) services.    Fees for items 294 (Emergency Medical Treatment), 295 (Non-Emergency Medical Treatment and Transport), 296 (Supply of ACTAS ambulance vehicles and/or personnel) and 298 (Aero-medical retrieval by the ACT Government’s aero-medical provider) are to be paid by the person receiving the service ([4(4)]).

There are exceptions.  Ambulance fees in the ACT do not have to be paid ([5]:

(a) by ACT school students who are injured or become ill at school or during approved school excursions within the ACT; or

(b) by residents of the ACT, New South Wales, Victoria, Tasmania or Northern Territory who, at the time the service was provided, held a current valid relevant concession card which includes an entitlement to free ambulance services under Commonwealth Government Department of Human Services provisions; or

(c) by persons who have been arrested and/or are in lawful custody; or

(d) by an entitled person, as defined in the Children and Young People Act 2008; or

(e) where the ambulance services were provided to a person in relation to performing a good Samaritan act; or

(f) for ambulance services provided following an incident involving a motor vehicle on a road or road related area in the ACT; or

(g) where ambulance services were provided to a person who was deceased, or was unable to be resuscitated, while in the care of ACTAS officers; or

(h) by a person who is a victim of domestic or family violence; or

(i) by a person who is a victim of sexual assault.

The Chief Officer – Ambulance Service may waive the fees where “exceptional personal or other circumstances apply to a person to whom ambulance services were provided” ([6(2)]).  Exceptional personal or other circumstances are set out in Schedule 2.  They are:

a. A charity, financial aid organisation, hospital or other social aid organisation provides evidence demonstrating that exceptional personal circumstances apply to the person and that requiring the person to pay would cause unreasonable financial hardship to the person;

b. The ambulance services were provided to a person aged under 18 years following an accident or other event that resulted in the person being the only survivor in their immediate family;

c. A person had applied for, but not yet received, a relevant concession card prior to receiving the ambulance services, and the application for the card was subsequently approved (noting that holders of relevant concession cards are not charged for ambulance services);

d. The ambulance service was provided to a person who is undergoing extensive and life saving medical treatment and who as a result is reliant on assistance from government or not-for-profit organisations in order to meet their basic costs of living and the requirement to pay for the ambulance services would cause unreasonable hardship;

e. Any other circumstances exist that in the opinion of the Chief Officer should see the fee waived.

Conclusion

As my correspondent was aged over 18 at the time, he or she is responsible for the paying the fees charged in accordance with the Emergencies Act 2004 (ACT) and the Emergencies (Fees) Determination 2018. Issues of consent or contractual principles are not relevant as the obligation to pay is a statutory obligation. It exists because the Emergencies Act says it does.

If my correspondent wants to avoid paying the bill he or she would have to satisfy the Ambulance Service that one of the exceptions listed in paragraph 5 apply.  If they do not apply an application could be made to waive the fee on the basis that ‘exceptional personal or other circumstances apply’.

Categories: Researchers

Listening devices – New South Wales

Michael Eburn: Australian Emergency Law - 16 July, 2018 - 18:26

Today’s question revisits the question of covert audio recordings (and for related posts, see https://emergencylaw.wordpress.com/?s=listening+devices).

Is it Ok for a Rural Fire Service (RFS)/Rural Fire Service Association (RFSA) member to covertly voice record meetings of either organisation?

The reference to the RFS and RFSA means that we’re talking about New South Wales.  The relevant Act in NSW is the Surveillance Devices Act 2007 (NSW).  A listening device is defined (in s 4) as:

…any device capable of being used to overhear, record, monitor or listen to a conversation or words spoken to or by any person in conversation, but does not include a hearing aid or similar device used by a person with impaired hearing to overcome the impairment and permit that person to hear only sounds ordinarily audible to the human ear.

It includes a dedicated audio recorder but also your smart phone. So, is it ok to covertly or secretly record meetings?  Prima facie the answer is ‘no’.  Section 7(1) says:

A person must not knowingly install, use or cause to be used or maintain a listening device:

(a) to overhear, record, monitor or listen to a private conversation to which the person is not a party, or

(b) to record a private conversation to which the person is a party.

There are exceptions and the most common one is in s 7(3) which says:

Subsection (1) (b) does not apply to the use of a listening device by a party to a private conversation if:

(a) all of the principal parties to the conversation consent, expressly or impliedly, to the listening device being so used, or

(b) a principal party to the conversation consents to the listening device being so used and the recording of the conversation:

(i) is reasonably necessary for the protection of the lawful interests of that principal party, or

(ii) is not made for the purpose of communicating or publishing the conversation, or a report of the conversation, to persons who are not parties to the conversation.

What is a private conversation?

A private conversation is defined to mean

…words spoken by one person to another person or to other persons in circumstances that may reasonably be taken to indicate that any of those persons desires the words to be listened to only:

(a) by themselves, or

(b) by themselves and by some other person who has the consent, express or implied, of all of those persons to do so,

but does not include a conversation made in any circumstances in which the parties to it ought reasonably to expect that it might be overheard by someone else.

What sort of meeting are we talking about?

It follows that the answer ‘no’ is too simple.  The first question to consider is whether what is being recorded is a private conversation?  If the meeting concerned is a public meeting, say a meeting of the RFSA to discuss a constitutional issue or amendment, open to all members and subject to robust debate, it may be hard to say that is any sort of ‘private conversation’ in which case s 7(1) doesn’t apply. Equally a public meeting hosted by the RFS to discuss community engagement and preparedness is unlikely to be an example of a ‘private conversation’.

If the meeting in question is a private conversation and the person doing the recording is a party to the conversation, then the recording is permissible provided s 7(3) is met.  Given we’re talking about a covert recording it follows that s 7(3)(a), everyone consents, does not apply so the answer has to be found in s 7(3)(b) and that requires consideration of the motive for making the recording and what the person intends to do with it once the recording is made.  The obvious example where s 7(3)(b) may be relevant is where a member has been called to a meeting that the member understands is disciplinary in nature and the member wants an accurate recording, so they can obtain later legal advice on the process.

Even if covert recording is allowed, it’s better not to

Even if there is no breach of the Surveillance Devices Act it stands to reason that covert recording should be avoided whenever possible.  It’s always best to advise people that they are being recorded and obtain consent where consent is necessary.  Even where the person’s consent isn’t required, eg recording a public meeting, it is still better to tell people that it is happening.

Conclusion

It is illegal to covertly record a private conversation unless the person doing the recording is one of the participants in the conversation and the recording ‘is reasonably necessary for the protection of the lawful interests of that principal party’.

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