I am hoping you can provide some advice regarding Drivers Licences for NSW Ambulance Paramedics.  Specifically, can a holder of a private conditional licence (subject to annual medical review) drive an ambulance?

According to the national Assessing Fitness to Drive publication issued by Ausroads, the Private Standard applies to licenses up to LR (which is what ambulance requires).  The commercial standard only applies to drivers of heavy vehicles, public passenger vehicles for hire or reward (bus drivers, taxi drivers, chauffeurs, drivers of hire cars and small buses etc.).

I cannot find anything, either internally or externally, defining exactly what license a paramedic requires, ie Private or Commercial Standard.  Are you able to offer an opinion on this? If you believe it is the Commercial Standards that apply would this be due to an ambulance being a vehicle that carries public passengers (ie patients) or is it due to it being an emergency vehicle?

The Assessing Fitness to Drive document is incorporated into NSW law by the Road Transport (Driver Licensing) Regulation 2008 (NSW) reg 50 which says:

The Authority may, by notice in writing, require the holder of a driver licence …

(c) to undergo a medical examination, conducted in accordance with Assessing Fitness to Drive , by a medical practitioner or allied professional practitioner, or produce evidence of compliance with the medical standards set out in that publication, to determine the holder’s medical fitness to hold a driver licence, or a licence of a particular class…

The regulation does not however say what standards are to be applied.   Assessing Fitness to Drive says that for car and light rigid licence holders,

Private standards apply UNLESS:

• driver holds or is applying for an authority to carry public passengers for hire or reward (e.g. taxi driver)
• driver holds or is applying for an authority to carry bulk dangerous goods
• driver holds or is applying to hold authority to be a driving instructor.

In these cases the commercial standards apply.

It goes on to say (emphasis added) (p 12):

The standards are intended for application to drivers who drive within the ambit of ordinary road laws. Drivers who are permitted to exceed these laws, such as emergency service vehicle drivers, should have a risk assessment and an appropriate level of medical standard applied.

In New South Wales a public passenger vehicle is:

(a) a bus used to provide a public passenger service, or

(b) a ferry used to provide a regular passenger service, or

(c) a taxi-cab or private hire vehicle, or

(d) a vehicle declared by a regulation under section 6 to be a public passenger vehicle. (Passenger Transport Act 1990 (NSW) s 3).

Tourist service vehicles have been declared to be a public passenger vehicle (Passenger Transport Regulation 2007 (NSW) reg 202).

The Medical Assessment Form that must be completed to obtain a Public Passenger Vehicle Driver authority says ‘The medical examination must be conducted in accordance with the commercial medical standards described in the “Assessing Fitness to Drive, Commercial and Private Vehicle Drivers (2012)”.

It can be inferred that the commercial standards apply when an authority is sought to drive a public passenger vehicle as defined in the Passenger Transport Act 1990 (NSW). An ambulance is not a public passenger vehicle and so, prima facie, the private standard applies, but as noted the standard expects that a different standard may be applied to emergency workers.

Given that the Road Transport (Driver Licensing) Regulation 2008 (NSW) reg 50 does not set a standard and the standard itself says ‘The assignment of medical standards for vehicle drivers is based on an evaluation of the driver, passenger and public safety risk, where risk = likelihood of the event x severity of consequences’ then the RMS can apply whichever standard they see fit. Further, it would be possible for the Ambulance Service to insist on the higher standard as part of its risk assessment and in consideration of its obligations to ambulance officers, patients and the public.

S0 my view is that a paramedic could assume that the private standard applies but the RMS and/or the Ambulance Service could insist on the higher standard and if that was considered unreasonable the paramedic would need to challenge that decision under administrative law remedies.

 

 

This question came via a NSW SES members facebook page, but I repost it here with permission from the original contributor, who asked:

Are SES members covered by the Good Samaritans provisions of the Civil Liability Act 2002 (NSW)?

Also, what is the legal (not moral) obligation to render assistance if say passing (you have not been called officially) a motor vehicle accident
* if you are in uniform,
* not in uniform,
* driving a SES vehicle?

The Civil Liability Act 2002 (NSW) s 57 says:

(1) A good samaritan does not incur any personal civil liability in respect of any act or omission done or made by the good samaritan in an emergency when assisting a person who is apparently injured or at risk of being injured.

(2) This section does not affect the vicarious liability of any other person for the acts or omissions of the good samaritan.

For the purposes of s 57, a good Samaritan

… is a person who, in good faith and without expectation of payment or other reward, comes to the assistance of a person who is apparently injured or at risk of being injured. (Civil Liability Act 2002 (NSW) s 56).

If you are not in uniform, not on duty, just happen to observe or come across the accident, then you are under no legal duty to assist (Stuart v Kirkland-Veenstra (2009) 237 CLR 215). If you do assist there is no doubt the good Samaritan provisions will apply; that’s exactly the sort of circumstances where they are intended to apply. The legislature wants to encourage people, particularly people who may know what they are doing, to come forward and to do so in circumstances where, perhaps, they cannot enjoy protection from an agency like SES as they are not at that stage performing duty’s for the SES or other community organisation.

I don’t think the answer is the same if you are in uniform or driving an SES vehicle (and driving an SES vehicle is the equivalent of being ‘in’ uniform, you are ‘in’ a vehicle that clearly identifies you as the SES). If someone approaches an SES member who is uniform or in a marked SES vehicle and says ‘quick please help, there’s been an accident’ then I think they would expect the SES to assist.   The person approaching the SES member is not coming to ask the particular volunteer, they are coming to ask the SES for help; and that’s the key, it’s not ‘you’ it’s the SES. The SES is one of the States’ emergency services with a number of obligations but more importantly a community expectation that a state emergency service (whether the SES, Fire and Rescue NSW, NSW RFS, NSW Police and the Ambulance Service of NSW) will step up to help in an emergency even if their help is to simply hold the fort until another more appropriate service gets there.

So does the SES (as opposed to you the individual) have a duty to respond? That is a more problematic question. On balance I would say ‘no’ but it is arguable. Cases like Stuart v Kirkland Veenstra (2009) 237 CLR 215 in the High Court of Australia have said that there is no general duty to rescue and that extends to emergency services, in that case the police. If the police were under no duty to assist a person sitting in a car contemplating suicide, then it would seem neither is the SES just because they are aware of an emergency.

On the other hand, Lowns v Woods [1996] Aust Torts Reports 81-376 found a doctor was under a duty to attend when asked and Kent v Griffiths [2001] QB 36 found the London Ambulance service also owed a duty to their patient that was breached when they took over 40 minutes to respond to an emergency call. In Electro Optics & West v NSW [2012] ACTSC 184; (the litigation from the 2003 Canberra fires) Higgins CJ said (at [311]-[314]):

Similarly, whilst it would not be just or reasonable to impose a general duty upon persons to rescue another in distress, a distinction may be observed in the role of those who, by profession, training or statutory role assume and hold out a preparedness to respond to those in distress. For example, police, lifeguards, medical practitioners and, relevantly, fire fighters.

That genesis for a duty of care is illustrated by the case of Lowns v Woods (1996) Aust Torts Reports 81-376. A medical practitioner was approached to come to the aid of a child, not a patient of his, who was fitting. He refused to assist unless the child was brought to his surgery.

At 63 155, President Kirby (as he then was) affirmed that a medical practitioner, by reason of skill, training and professional obligation, had a duty to assist going beyond that imposed on an ordinary citizen.

In my view, the same would be the case in respect of trained rescuers who hold themselves out as skilled, willing and able to assist (see the discussion in N Gray and J Edelman, “Developing the Law of Omissions: A Common Law Duty to Rescue?” (1998) 6 Torts Law Journal 240).

and later [at 334]:

Indeed, in my view, the case of Capital & Counties plc v Hampshire County Council and the general view that police and fire services owe no duty to respond to persons in danger where they are trained and able safely to respond is clearly inconsistent with public expectations and the intent shown by the legislative provisions imposing positive duties on such services to protect the public.

Whilst members of the SES are volunteers they are still holding themselves out, and are held out by the State, ‘as skilled, willing and able to assist’. (This was the decision of a single judge, is the subject of an appeal the ACT Court of Appeal and is not beyond criticism (see my post ‘Judgment in the litigation arising from the Canberra fires of 2003 – updated 19 December 2012’) but even so it shows that the position is at least arguable).

One of the critical issues in Woods v Lowns was there was nothing to stop the doctor attending, he was not then engaged with seeing patients.  A relevant question would be what else is the SES doing. If the members are engaged in some task, they may not be able to meet a request for assistance but that too must be judged on the facts. If the team are tarping a roof and are told that there has been an accident nearby, then it would seem reasonable to expect them to climb down and do what they can. If, on the other hand, they are engaged in a flood rescue and the team on the river bank are supporting the swift water technicians in the river, then clearly they cannot leave their current task to assist at the accident (assuming that is in fact the case, and there are no extra members that can be spared to go and assist).

If the SES members are at a community fete, or just driving along the road and they observe an accident, I would expect that a court would be quite willing to find a duty to attend if there was no explanation forthcoming about why they did not. It may be argued that, for some reason, they do not have to attend as they have not been officially tasked to assist, but the error of that argument is obvious if you think that if someone had rung triple zero and they had been despatched to the case they would have had to attend and it can’t make any legal difference whether they responded in response to a triple zero call, or a knock on their door.

If the volunteers do attend they may be protected by the good Samaritan provision above, but I don’t actually think so. This section is not intended to cover an organisation such as the SES that is holding itself out as a professional and skilled emergency service. The SES is funded to provide emergency services and the volunteers are rewarded with social standing, training, access to events etc. The status and standing that comes with being a volunteer can be quite significant (see Castle v Director General State Emergency Service [2008] NSWCA 231).

Volunteers with the SES don’t need to rely on the Civil Liability Act as they are protected by the State Emergency Service Act 1989 (NSW) s 25. That section says ‘

(1) A matter or thing done by:

(a) a member of the State Emergency Service, including a member of an SES unit …

does not, if the matter or thing was done in good faith for the purpose of exercising the functions of or assisting the State Emergency Service … subject the member, officer or volunteer personally to any action, liability, claim or demand.

Arguably, if the SES unit involved is not an accredited road crash rescue unit they are not performing any of the functions listed in s 8 but they are still assisting the SES to meet its community expectations. If I am wrong and s 25 does not apply, then the Civil Liability Act 2002 (NSW) s 61 says:

A volunteer does not incur any personal civil liability in respect of any act or omission done or made by the volunteer in good faith when doing community work: (a) organised by a community organisation …

That is clearly intended to apply to people like SES volunteers and provides, effectively, the same protection as s 57 so the question of which section applies is probably academic.

So my summary thoughts are:

1. There is no obligation upon a off duty volunteer to render assistance at a motor vehicle accident;
2. It would be arguable that there is an obligation on the SES, through its volunteers to assist where the members are approached because they are SES members in uniform or a marked SES vehicle, and they are not engaged in other tasks that mean they cannot assist;
3. If the volunteers do assist I do not think they are good Samaritans as intended by s 57 of the Civil Liability Act but I think they would be protected from personal liability by s 61 and/or the State Emergency Service Act 1989 (NSW) s 25. Even without those sections, if they were negligent, it is my view that the SES would be vicariously liable for any negligent action or omission.

For further discussion on these and related issues see:

• Insurance for first aiders (13 August 2014);
• Doctors as ‘good Samaritans’ – do I have to stop? (23 March 2014);
• Nurses as ‘good Samaritans’ – can I be liable if I do stop? (22 March 2014);
• Failure to attend by NSW Police and Ambulance (18 December 2013); and
• Who to treat? A question for St John first aiders (30 June 2013).

This was a very long question, so I’ve edited to make it shorter.  I am also told that my correspondent has removed this discussion from his assessment task, so I’m only addressing this on the understanding that I am NOT contributing to his assessment task.    My correspondent writes:

I am currently studying unit on Emergency and Crisis management as part of my Masters in OHS at Edith Cowen University WA.    As part of this unit we have been asked to comment on the new WHS legislation and the inclusion of volunteers into the definition of worker, how this WHS legislation might affect volunteers and to summarise the legal health and safety issues that underpin volunteers in your region.

This task set me off thinking about the Emergency Response Teams on WA Mine sites.  My interpretation of the Mines Safety and Inspection Act [WA] 1994(MSIA) is that all members of the ERT working in any capacity, are under direction of the employer, and are employees even though they have volunteered to be members of the ERT.

This then begs the question as to what is the coverage if they as volunteers, utilising the skills and knowledge gained during their employment, along with the resources of the mine, assist in emergency management beyond the mine.  If they attend traffic accidents on the gazetted road, which runs through the mine lease, are they acting as employees or good Samaritans?  Let us assume they apply first aid measures, and transport casualties, in the first instance to the town medical centre.  This is within the boundaries of the community, and on the mine lease.  However the MSIA explicitly exempts these community areas, from the Act. So what now are we employee or Good Samaritan?   If during this patient transfer a member of the ERT injures his back, is he covered by the MSIA act?  Does Workers Compensation cover him?  I would argue this is still within the confines of the mine, and therefore he is an employee and covered, because the MSIA excludes “leisure activities”.   Now let us assume he is transferring the patient from the medical centre to the Royal Flying Doctors aircraft.  During this if the hypothetical ERT member causes harm, by the fault of his actions, were would this stand at law?  Covered by the Civil Liabilities Act 2002?

Now let us assume the accident they attend utilising the equipment and resources of the mine happens out on the North West Coastal Highway.  Now they are well and truly off the mine lease?  They have taken on the duties of the now defunct, volunteer fire brigade.  Defunct as a direct result of the introduction of mine rescue teams by the mining company and the withdrawal of their support to the volunteer fire brigade.  Had they attended the scene as members of the volunteer fire brigade, they were volunteers and therefore entitled to the protection of the State government or the Civil Liabilities Act?   As members of the Mines ERT they are employees who must adhere to the policies and procedures of the mining company as well as the MSIA.  Not possible as the MSIA does NOT cover workplaces outside a mine.  So will we revert then to the Occupational Safety and Health Act?  Looking beyond these semantics, over which act, what happens again if they make a mistake and cause serious harm to the casualty.  Can that person now take action against the individuals or even the mine?  As a corporation the mine is not covered by the “good Samaritan clauses”.  Would members of the team be entitled to coverage?

Good Samaritan clause gives protection via the Civil Liabilities Act.  This is not applicable to the workplace and only covers claims for “damages for harm caused by the fault of a person” the Western Australian Volunteers (Protection from Liability) Bill 2002 specifically excludes a person who is taken to be performing a function under an emergency services act.  Would this include the privately funded ERT units?

This question suggests that the law is much more complex than it actually is or will be and the legislation will not really determine most of the matters.

First, though, the Volunteers (Protection from Liability) Bill 2002 was a Bill.  A bill is a draft law, it is not however ‘the’ law.  The relevant Act in WA is the Volunteer and Food and Other Donors (Protection from Liability) Act 2002 (WA).

I can’t see where or how the Mines Safety and Inspection Act 1994 (WA) explicitly exempts ‘community areas’ or ‘leisure activities’ as those terms are not used in either the Act or its regulations.

To the law:

An employee is an employee when they are doing what they are employed to do.  There is no doubt that a person who is employed at a mine and who joins the Emergency Response Team is still an employee.  They are not a ‘volunteer’ because they volunteered to assume extra duties.  Their employment includes their role in the ERT so they are an employee.

An employer is vicariously liable for the torts or wrongs of their employee.  If they are acting as members of the ERT they are employees, so if there is any negligence it will be the employer (the mine) that is liable (Hollis v Vabu (2001) 207 CLR 21; Sweeney v Boylan Nominees (2006) 226 CLR 161).  This will not be the case if there is gross or wilful misconduct or their actions are so far beyond what they are employed to do they can be described as being on a ‘frolic of their own’.  If they are using the ERT vehicle for drag racing or to provide a cool wedding transport vehicle, without the knowledge or permission of the mine, they may be on a frolic of their own.

So if they are attending to an emergency outside the mine the issue is, is that endorsed by the employer?   If they are just driving along the road and see an accident and stop to help they, and the mine, are good Samaritans.   The Civil Liability Act 2002 (WA) s 5AD says:

 A good samaritan does not incur any personal civil liability in respect of an act or omission done or made by the good samaritan at the scene of an emergency in good faith and without recklessness in assisting a person in apparent need of emergency assistance.

A ‘good samaritan means a natural person who, acting without expectation of payment or other consideration, comes to the aid of a person who is apparently in need of emergency assistance’.  In law a corporation is also a person (Interpretation Act 1984 (WA) s 5) so the reference to ‘natural person’ makes it clear that this section does not extend to a corporation, so the rescue workers can rely on that provision, but the mine could not.

I do not think this would be sufficiently divorced from their duties to constitute a frolic of their own.  If they’re driving an emergency vehicle and representing a company that is a major player in the community then I cannot imagine for a moment that the employer would in any way want them to drive past and not help. The reputational damage would be immense.  So even if there were no instructions that say ‘you can stop’ I would expect that any court, should it be an issue, would accept that by stopping their emergency vehicle to provide care they were acting in the course of their duties so if they were injured in the course of that work they could still expect to receive workers compensation.

If they turn out because they have ‘taken on the duties of the now defunct, volunteer fire brigade’ that must imply some level of cooperation with the police and emergency services, ie someone has to have called them out.    One can imagine lots of reasons why a mine company would make its ERT available in those circumstances, it makes them a good corporate citizen, maintains good will, maintains the interest and willingness of people to join the ERT as they know they are contributing to their community and the people they are helping are their employees and the community they depend upon.   In that case responding is clearly part of the ERTs duties and should there be any liability it would fall on the mine.  Provisions that are designed to remove personal liability such as the Volunteer and Food and Other Donors (Protection from Liability) Act 2002 (WA) and the Fire and Emergency Services Act 1998 (WA) s 37 don’t apply as the members of the ERT are employees, not volunteers.  Equally the good Samaritan provisions won’t apply as they are turning out as part of their work, but again that doesn’t matter as any liability (if any) would fall to the mine.

If the mine entered into an agreement with the Department of Fire and Emergency services to provide emergency services to help the Department fulfil its obligations under the Fire and Emergency Services Act 1998 (WA), or entered into an agreement with the local council to provide bush fire fighting services (Bush Fires Act 1954 (WA) ss 41 and 42A) then the mine could rely on s 37 of the Fire and Emergency Services Act 1998 (WA) which says ‘a person does not incur civil liability for anything that the person has done, in good faith, in the performance or purported performance of a function under the emergency services Acts’.  Note that it does not say ‘natural’ person so that would include a corporation.  Such an arrangement would be necessary, or at least implied, if the rescue service is being notified of triple zero calls requesting assistance and/or the mine has ‘taken on the duties of the now defunct, volunteer fire brigade’

The ERT members are employees when their responding to an emergency or if they are driving the truck in the course of their duties and come across an accident so the Occupational, Safety and Health Act 1984 (WA) and/or the Mines Safety And Inspection Act 1994 (WA) and the Workers’ Compensation And Injury Management Act 1981 (WA) will all continue to apply in any of the circumstances described above.

My correspondent writes:

When attending a case in which a patient has died, state paramedics in Queensland can cease or withhold resuscitation based on a protocol contained within the clinical practice manual we use. Following this, the paramedic who ceased or withheld resuscitation can complete a Recognition of Life Extinct (R.O.L.E.) form and hand this to the attending police officers in order to provide evidence that an assessment has been undertaken to confirm that the person is deceased so that their body can then be removed from the scene and certification of death by a doctor can be carried out separately. This system works well for state-employed paramedics.

If the same circumstances were to occur on a mine site or gas construction site many hours from a state ambulance response, what would be the position of a commercial paramedic who was in attendance? They can cease or withhold resuscitation based on similar criteria as their state-employed counterparts, but would they, in their commercial capacity, have the ability under legislation to complete a “Recognition of Life Extinct” without input from the state ambulance service? Is this something that would need to be documented in their own clinical practice manual or is there specific legislation that refers to recognition of life extinct and the role of an “Ambulance Officer”.

The relevant protocol is ‘Clinical Practice Guidelines – Other Emergencies’.  Relevantly that Guideline says (at p 3):

Part B – Management of a deceased person

Recording life extinct

Following determination that life is extinct, the paramedic is to complete a Life extinct form and the eARF.

Details regarding the criteria relied upon to determine life extinct are to be recorded on the eARF.

The paramedic is then required to record the following in the eARF:

I declare life extinct at [record exact time of declaration].

Notification of death to police

The Queensland Police Service (QPS) is to be notified of all deaths and provided with information that will assist the police to determine if the death is a reportable death as defined in the Coroners Act 2003 (Qld) (see following for the definition of reportable death).

eARF is the ‘Electronic Ambulance Report Form’ (see https://ambulance.qld.gov.au/records.html).

The ‘Life Extinct Form’ appears to be a Queensland Police form (QP0001).  The Queensland Police Operational Policy on Coronial Matters says (at p 12) that even though they have a form, ‘There will continue to be instances where other versions of a Life Extinct Form will be used. For example, the Queensland Ambulance Service will use an Electronic Ambulance Report form to record the life extinct procedure.’

Queensland Corrective Services have a life extinct form, and whilst that is clearly a Corrective Services’ form I assume it is for all intents and purposes it records the same information as either QP001 or the eARF.  In essence the paramedic is signing either a printed form, or the eARF to the effect that they examined the patient, determined that criteria to determine life extinct had been met, that is:

• No palpable carotid pulse;
• No heart sounds heard for 30 seconds;
• No breath sounds heard for 30 seconds;
• Fixed dilated pupils; and
• No response to centralised stimuli (‘Clinical Practice Guidelines – Other Emergencies’, p 2).

The eARF implies that is the basis of the diagnosis and confirms the time of that diagnosis.

Now to the law.  The relevant law is, as the Practice Guideline says, the Coroners Act 2003 (Qld), as well as the Births, Deaths and Marriages Registration Act 2003 (Qld).

An application to register a death in Queensland must contain, amongst other details, information about the cause of, and the date of, death (Births, Deaths and Marriages Registration Regulations 2003 (Qld) reg 12 and Schedule 1).   The paramedic’s eARF cannot record the cause of death but gives some evidence as to the date of death, or at least that the date of death was not after the date recorded on the eARF.  The cause of death may be certified by a doctor if the doctor

(A) attended the deceased person when the person was alive; or

(B) examined the deceased person’s body; or

(C) has considered information about the deceased person’s medical history and the circumstances of the deceased person’s death; and

the doctor is able to form an opinion as to the probable cause of death.  (Births, Deaths and Marriages Registration Act 2003 (Qld) s 30).

Consideration of ‘ information about the deceased person’s medical history and the circumstances of the deceased person’s death’ would include consideration of the fact that the person was identified as dead at the time and date recorded on the eARF.

Some deaths must be reported to the Coroner, a reportable death is one where:

(a) it is not known who the person is; or

(b) the death was a violent or otherwise unnatural death; or

(c) the death happened in suspicious circumstances; or

(d) the death was a health care related death; or

(e) a cause of death certificate has not been issued, and is not likely to be issued, for the person; or

(f) the death was a death in care; or

(g) the death was a death in custody; or

(h) the death happened in the course of or as a result of police operations. (Coroners Act 2003 (Qld) s 8).

A coroner must investigate a reportable death and record, if possible, ‘when the person died’ (Coroners Act 2003 (Qld) s 45(2)(c)).

None of these Acts, or their regulations make reference to ‘life extinct form’.

It is the duty of Queensland police to assist the coroner in the investigation of deaths (Police Powers and Responsibilities Act 2000 (Qld) s 794).  Police must also complete a Form 1 Police Report of Death.  This form is prescribed under the Coroners Act 2003 (Qld) and that is where the paramedics ‘Life Extinct form’ comes in.  The Life Extinct form is not legally prescribed, it is simply evidence that assists the police to report to the coroner (if the death is reportable) and any doctor who is completing a cause of death certificate to know at least a date time that the patient was dead.  The form is, as I say, evidence but it is not provided for in legislation and so is not something that is unique to Queensland Ambulance.  As noted Corrective Services have a similar form as do others (see Capricornia Department of Health and Ageing, Aged Care Resource Pack, 2005).

So if a private or ‘commercial’ paramedic were to face a case where the person they are called to assist is clearly dead, ‘would they, in their commercial capacity, have the ability under legislation to complete a “Recognition of Life Extinct” without input from the state ambulance service? Is this something that would need to be documented in their own clinical practice manual or is there specific legislation that refers to recognition of life extinct and the role of an “Ambulance Officer”’?

Whether they could complete a life extinct form would depend on their relationship with the local police.  If the private ambulance company developed a form they could speak to the local police about whether or not that would be useful.  In the absence of the form the police would simply need to take a statement recording when the officer’s attended and determined life was extinct.  That may be no more than notebook entry.   Even if they did not liaise with the police, a private ambulance company could develop a form but whether the police decided to accept it at face value would be a matter for the investigating police in each case.   Any ambulance provider would, I suggest, have to have clinical guidelines on determining when life is extinct and resuscitation can be withheld or withdrawn and any such guideline should also provide for appropriate record keeping so yes the use of any designed form should ‘ documented in their own clinical practice manual’.

There is no legislation that ‘refers to recognition of life extinct and the role of an “Ambulance Officer”’ either a QAS officer or anyone else.  As I say all the form is, is evidence; it has no legal effect, it just helps the police, the coroner, and a doctor who may be completing a certificate as to the cause of death, to know that the person was at least dead at the time on the paramedics form.

 

 

This was a comment made in response to my post ‘What is a paramedic’s ‘authority to practice’? (19 August 2014)

This is a very informative post. I would be appreciative if you could confirm a doctor’s ability to legally delegate permission to carry and dispense S4 – S8 drugs to Registered Nurses outside of a hospital environment or government sanctioned medical centre for the purposes of providing first aid.

Responding to this comment was so important that I’ve made it a separate post so it is not ‘lost’ in the comments.

A doctor has NO ‘ability to legally delegate permission to carry and dispense S4 – S8 drugs to Registered Nurses outside of a hospital environment or government sanctioned medical centre for the purposes of providing first aid’.

I’m not sure what state the comment came from, so I’ll stick to NSW.  Section 17A of the Poisons and Therapeutic Goods Act 1966 (NSW) says:

A nurse is authorised to possess, use, supply or prescribe a poison, restricted substance or drug of addiction for the purposes of the practice of nursing, if:

(a) the nurse’s registration is endorsed under section 94 of the Health Practitioner Regulation National Law as being qualified to possess, use, supply or prescribe that poison, restricted substance or drug of addiction, or

(b) the nurse is a nurse practitioner who is authorised in writing by the Director-General to possess, use, supply or prescribe that poison, restricted substance or drug of addiction.

It says nothing about being ‘delegated’ permission by a doctor.  A medical or nurse practitioner must not prescribe or supply drugs of addiction (s 28) without a proper authority.  A proper authority is issued by the Director General of Health, not any doctor who chooses to.

A person must not possess a prescribed restricted substance unless they are, inter alia, a nurse practitioner authorised under s 17A (see above); or is getting the substance in accordance with a prescription, or is caring for the person for whom the drugs have been prescribed or otherwise approved by the Director General (s 16; see also s 23 ‘Possession and supply of drugs of addiction by carers’); not who is authorised by ‘a doctor’.

It is an offence to supply schedule 1, 2 or 3 drugs unless the person is a nurse practitioner authorised by the Director General (s 10); not who is authorised by ‘a doctor’.

A prescription for a restricted (Schedule 4) substance or drug of addiction (Schedule 8) must contain, inter alia, the patient’s name and address (Poisons and Therapeutic Goods Regulation 2008 (NSW) clauses 35 and 80).   Clearly one cannot write some general prescription to issue drugs to someone the nurse thinks should get the drugs.

Both nursing and medical practitioners are registered under the Health Practitioner National Law.  Unprofessional conduct, of a registered health practitioner includes ‘the conviction of the practitioner for an offence under another Act, the nature of which may affect the practitioner’s suitability to continue to practise the profession’ (Health Practitioner National Law s 5).  A nurse who is carrying schedule 4 or schedule 8 drugs because ‘a doctor told them they could’, would be acting in contravention of the Poisons and Therapeutic Goods Act 1966 (NSW) (or its equivalent in other jurisdictions) and could expect to  be prosecuted and subject to professional discipline.

A relevant health registration board can establish codes of conduct that are relevant in determining whether or not a practitioner’s conduct ‘constitutes appropriate professional conduct or practice for the health profession’ (Health Practitioner National Law ss 39 and 41).  The Medical Board of Australia’s ‘Good medical practice: a code of conduct for doctors in Australia’ says that good medical practice requires

2.1.1 Assessing the patient, taking into account the history, the patient’s views, and an appropriate physical examination. The history includes relevant psychological, social and cultural aspects.

Somehow ‘authorising’ others to carry and use drugs does not involve making that assessment.    A doctor who purports to authorise people who are not authorised under the relevant drugs legislation to carry drugs and in effect treat people as the doctors’ agent is not engaged in good medical practice.  They can expect to be liable in the event of a poor outcome and to be subject to disciplinary action.

Nurses are, and paramedics want to be, health professionals.  They have their own skills and their own professional standards.  They do not, and should not consider that they practice their professions because doctors authorise them to do so.  Doctors are not the authority that determines who can carry and use drugs, the Parliament is and the parliament determines who can give other authority, in NSW it’s the Director General of Health.

To reiterate: A doctor has NO ‘ability to legally delegate permission to carry and dispense S4 – S8 drugs to Registered Nurses outside of a hospital environment or government sanctioned medical centre for the purposes of providing first aid’.

 

This question relates to paramedic practice.  My correspondent says:

I’m trying to clarify something about the law in regards to paramedics in Australia and I was wondering if you could help.

I know in South Australia that paramedics derive their authority to practice medical acts on members of the public directly from the corporate entity of the Ambulance Service.  This is spelled out in the SA Health Care Act of 2008 (section 6, I believe, covering SAAS [The relevant provisions in the Health Care Act 2008 (SA) is Part 6, not section 6; part 6 contains sections 49-62].  My understanding is that this is true for all state-run ambulance services in Australia.  This is in contrast to, for example, New Zealand and the United States where paramedics are delegated their authority to practice from a physician acting as the Medical Director of the Ambulance Service.  Or, for example, the UK, The Republic of Ireland or South Africa where paramedics obtain their legal authority to practice from their own license as paramedics.

What I’m trying to get an answer to is this – does EVERY state in Australia delegate authority to practice paramedicine through the ambulance service?  Is this a homogeneous national model?  I’m also wondering if the private ambulance services in Australia work under the Medical Director model, wherein their paramedics derive their authority to practice from delegation from a physician.

Thanks for any insight you can offer.

Paramedicine is a largely unregulated profession.  One does not need ‘authority to practice medical acts on members of the public’, one needs authority to do that which is regulated.  In terms of paramedic practice the tasks that they need a licence for are to drive the ambulance and possess and administer scheduled drugs.  We know they have a personal authority to drive in the form of their driver’s licence.

The term ‘authority to practice’ has moved into the lexicon but its really not appropriate in this context.  The term does not appear in law.  The South Eastern Sydney Local Health District defines ‘authority to practice’ as:

A license (this may be a certificate, notice, or other form of documentation) that is issued by the relevant National Registration Board on an annual basis certifying that the holder is eligible to practise in the profession and that the holders details are entered into the relevant Board register. That is, the person is authorised to call themselves a physiotherapist/ podiatrist / psychologist /pharmacist / occupational therapist. Once a name is removed from the register, it is then illegal for that person to call themselves a physiotherapist/ podiatrist / psychologist /pharmacist / occupational therapist.

You can see they’re using the term ‘authority to practice’ as a shorthand or ‘catch all’ phrase to cover the various documents that may be issued for registered health practitioners.  The critical issue here is that paramedics are not registered health professionals.

So a paramedic’s authority to practice is, basically, their job description or the tasks that the employer determines that they are to do.  In short the state run ambulance services determine what their members are authorised to do as part of their duties.  They may issue a document called an ‘authority to practice’ but that is because they have adopted the term, not because the law uses the term.   The idea of an ambulance ‘authority to practice’ is relevant when it comes to the use of drugs.

Using NSW law as an example, it is an offence to be in possession of or supply scheduled drugs.  There are exemptions for paramedics, for example a person employed by the Ambulance Service of NSW as an ambulance officer and who is approved by the Director-General is ‘authorised to have possession of, and to supply, drugs of addiction’ (ie schedule 8 drugs) (Poisons and Therapeutic Goods Regulation 2008 (NSW) clause 101; see also clause 129 and Appendix C for similar authority relating to schedule 2, 3 and 4 drugs).  So it’s up to the Director General to determine who is competent and then authorise them to carry and use these drugs. The Director-General may issue something that they call an ‘authority to practice’ to show that the particular paramedic is authorised under the regulations to use various drugs.   (For another similar example see Drugs, Poisons and Controlled Substances Regulations 2006 (Vic) Reg 5, entry 11 relating to Ambulance Victoria and entry 12 relating to St John Ambulance (Victoria)).

The idea that paramedics ‘are delegated their authority to practice from a physician acting as the Medical Director of the Ambulance Service’ makes no sense at all.  Staying with NSW law medical practitioners may have authority to supply scheduled drugs (see Poisons and Therapeutic Goods Act 1966 (NSW) ss 10) but they need special authority to prescribe drugs of addiction (s 28A).  There is nothing however that would allow a doctor, who is authorised to possess and/or supply a scheduled drug, to give that permission to someone else.   A doctor may give an emergency prescription by telephone or radio (s 36 (restricted substances) and s 81 (drugs of addiction)) but that would depend someone who is with the patient to communicate the relevant signs and symptoms and the medical practitioner to make an informed decision on the treatment. It would not allow a medical practitioner to give some general permission – if you find a person in this condition you can administer this drug – nor does it give permission for that person to be in possession of that drug.  Medical practitioners just can’t authorise someone else to do things that are otherwise illegal but would not be illegal if a medical practitioner did it; nor can a medical practitioner empower someone to practice medicine on his or her behalf, and make decisions in his or her name for a patient the doctor has never seen, and if they did they would be likely to find themselves ‘struck off’.

In New Zealand a person needs the Minister’s consent to deal with restricted medicines (Medicines Act 1981 (NZ) s 20).  I can’t easily locate any approval but it may be that there is some authority to allow paramedics who are working with St John Ambulance or the Wellington Free Ambulance or any other NZ ambulance authority and who has been authorised by the services’ Medical Director in the same way that a NSW ambulance officer is authorised by the Director General, but I can’t confirm that.

It should be apparent that the authority to use drugs is set out in the relevant poisons or drugs Act, not the relevant ambulance service legislation.  It should also be noted that there is no relevant ambulance legislation in either the Northern Territory or Western Australia.   Further authorities may be given but they are not publically available so finding out the exact terms upon which provider is authorised to carry and use drugs is not something that is easily done and would presumably require freedom of information type applications.

So, ‘does EVERY state in Australia delegate authority to practice paramedicine through the ambulance service?’ The answer is “No” as you don’t need an authority to practice paramedicine as paramedicine is not a registered health profession. A paramedic’s employer determines what is, or is not, in their scope of practice, that is what they are employed to do.  A paramedic does need an authority to carry and use scheduled drugs.  The state health authorities issue the relevant authorities so, for example, NSW Ambulance can authorise its employees to carry and use drugs.  , so paramedics employed by the state services are authorised by the state services but that does not extend to paramedics working in the private sector.  Private providers must also be granted approval subject to whatever terms the relevant department choses to impose (see Poisons and Therapeutic Goods Act 1966 (NSW) ss 11 and 29).  That would be how private providers get authority to carry and use drugs but it does not explain how they get authority to operate in those states and territories where there is a prohibition on private ambulance services (see for example Health Services Act 1997 (NSW) s 67E; Ambulance Service Act 1982 (Tas) s 37).  (I have argued elsewhere that it appears, on the face of it, some of these operators must be acting in breach of these laws (see Michael Eburn and Jason Bendall ‘The provision of Ambulance Services in Australia: a legal argument for the national registration of paramedics’ (2010) 8(4) Australasian Journal of Paramedicine Article 4 (previously (2010) 8(4) Australian Journal of Emergency Primary Health Care, Article 990414).)

 

This is a detailed question from a volunteer controller with NSW SES.  My correspondent says:

I would like to have your views on two issues which are concerning Local Controllers and volunteers in NSW SES, and it may affect other States or authorities:

• Entering and performing storm damage control in a property without the owner’s consent: In my early training as a volunteer, we were always educated not to commence any type of storm damage work on a property without the owner’s consent. However, I have been informed that in my appointment as a “Senior Emergency Officer” under the State Emergency Service Act 1989 Sect 22A, I may r. These type of cases come up during storms as there is a large number of rental and holiday properties and often too hard to find the owner. I wish to confirm that SES Controllers may authorize work to commence when an owner has not been informed.
• Referring storm damage to property owners and land manager:
  1. Example 1: A tree has fallen down in a park, it maybe blocking a footpath but it is not causing any significant disturbance to traffic. The SES Local Controller refers the incident to the Local Council as the managers/owners of the park to deal with. As an SES Controller I am satisfied that the Council will deal with the matter accordingly. Is there any legal need for the NSW SES to follow up to make sure the Council completes the task?
  2. Example 2: A tree is resting on power lines which are in the street (pole to pole). The SES Unit refers the incident to electricity authority to attend to. As in example 1, the SES unit is satisfied that the electricity authority will deal with the matter. Is the SES obliged to follow up to ensure it is complete?
  3. Example 3: A tree has fallen next to a main road managed by the NSW RMS. The road is not blocked by the tree may interfere with the break down lane. The SES Unit refers the matter to the RMS to deal with knowing that the RMS will make the incident safe. Is there any requirement for the SES to follow up the RMS to ensure that they have completed the task?

I have been informed ‘informally’ by staff members of SES that the SES Unit must follow up every one of these examples to ensure that the agency or Council has completed the task as the SES is responsible until the task is complete. Some of these tasks may not be completed for over a year as in the example of my own council have stated if it is low priority, then the issue may not be resolved until they can afford to complete the work.

My personal thoughts in these matters that under the State Emergency Service Act 1989 – Section 8 (1)(b) to act as the combat agency for damage control for storms….  , that I as the appointed Controller within the Act, that I am satisfied that they agency or land manager will manage the incident and I have fulfilled my need for damage control.

To compare the example on private property: The SES attend a tree that is on a house, the owner of the house has told the SES that he/she will deal with the tree and no need for any SES action. The SES does not follow up the owner later on to ensure that he/she has completed safe works. I would say this would be the same for damage control in the examples above.

I think there needs to be a clear recognition between say, a fire, and storm damage.  If a tree has fallen onto a house, and assuming it has fallen as far as it can fall, then the damage is inconvenient to the home owner, but hardly an ‘emergency’ for anyone else.  This is different to a fire, a fire starts in a room and if no-one extinguishes it not only will the home be lost but so may the neighbouring properties or whole communities.  For this reason there is no doubt that the fire brigades may enter a property where they have been alerted to the possibility of fire, they may do so with the permission of the property owner, without the permission of the property owner or where the property owner expressly refuses to let them on.  They are not there for the property owner but the greater good so the property owner’s consent is really irrelevant (see for example, Fire Brigades Act 1989 (NSW) ss 6, 7, 11, 12, 13 and 16).

I think that distinction will help inform our answers to the questions raised.  Question 1 relates to ‘Entering and performing storm damage control in a property without the owner’s consent’.   The State Emergency Service Act 1989 (NSW) provides for ‘emergency officers’ and ‘senior emergency officers’.  An ‘emergency officer’ is a person appointed to that position by the SES Commissioner (s 15); a senior emergency officer holds that position by virtue of their position in the SES, Fire and Rescue NSW, NSW RFS, NSW Police or because of their appointment as a Regional Emergency Management Officer (s 18A).  The Commissioner of the SES has certain powers that he or she can use to help bring an emergency under control and he or she can authorise an emergency officer, or senior emergency officer, to exercise those powers on the Commissioner’s behalf.   The Commissioner can authorise an emergency officer to exercise a power to ‘evacuate or to take other steps concerning persons’ (s 22).   He or she may authorise a senior emergency officer to ‘to take other safety measures’.  In particular a senior emergency officer may direct that the supply of water, gas, electricity or other substance is disconnected and he or she may arrange to take possession of, remove and destroy anything that is ‘dangerous to life or property or that may interfere with the response of emergency’ (s 22A).

A person may enter premises in order to comply with a direction under s 22A.  That means if a senior emergency officer requires that the gas is disconnected, he or she may authorise the technician supplied by the gas company to enter premises in order to disconnect the gas, and the owner’s permission is not required (see ss 22E and 22F) though the owner must be notified of the intention to enter the premises unless ‘entry is required urgently and the case is one in which the Commissioner or senior emergency officer giving the direction has authorised in writing (either generally or in a particular case) entry without notice’ (s 22C).

This is not a general power to enter the premises to deal with the effects of the storm; it is a power to enter to ensure that an order under s 22A is carried out.  Section 22A would not allow an IC or a senior emergency officer to ‘authorize a team to commence work without informing the owner’.  There is however a common law principle of necessity.  Here we are not talking about necessary action to save a life, but action to save property.

This is what I wrote in my book, Emergency Law (4th ed, 2013):

“For the defence of necessity to apply it must be shown that there was a real and imminent danger and that the conduct of the defendant was such that “any reasonable man would, in the circumstances of the case, have concluded that there was no alternative to the act of trespass if the property [or life] endan­gered was to be preserved” (Cresswell v Sirl [1948] 1 KB 241, 247)… In 2008 the High Court of Australia said:

The common law has long recognised that any person may justify what would otherwise constitute a trespass to land in cases of necessity to preserve life or property. The actions of fire fighters, police and ambulance officers will often invoke application of that principle. (Kuru v State of New South Wales (2008) 236 CLR 1, [40]).

Finally:

In principle, there seems no reason why the common law should not recognise an exemption from liability to pay damages for trespass to goods of “volunteers” or strangers who, from no other motive than the same desire to save the property of others from damage or destruction as they would feel if it were their own property which was in jeopardy, take reasonable steps on an occasion of urgent necessity to remove that property out of the way of danger or safeguard it by some other means. It would seem that in principle the present respondent should not be absolutely liable for damage caused by his interference with the property of another when he acted in the reasonable belief that his interference was justified by the necessity of the situation and was intended to benefit the owner. (Proudman v Allan [1954] SASR 336, 338)

So SES members who move onto a property, acting with the honest intention of protecting the property from further damage, will be able to rely on both the doctrine of necessity as well as the ‘good faith’ provision in the SES Act (s 25).   But here’s the difference between a tree down and a fire.  If the home owner doesn’t want the SES to enter the property then there is no right to do so (except as provided for in s 22A and that only allows entry if it’s needed to disconnect the gas or some other hazard ie if entry is required to ensure the safety of the community or the SES).    Where there is a fire, or even a report of a fire, the fire brigades can enter the property and take action to deal with the fire regardless of the property owner’s wishes.

So the answer to question 1, ‘can SES Controllers authorize work to commence when an owner has not been informed?’ is yes but only if it is necessary to do so and the controller (and SES members) are acting ‘from no other motive than the same desire to save the property of others from damage or destruction as they would feel if it were their own property’ and their actions are reasonable.  What is reasonable would not only refer to SES training (ie it’s reasonable to do what you are trained to do and not what you are not) but also the steps taken to try to contact the owner and the urgency of the situation (could it wait) and the extent of damage that will take place if action is not taken.

The answer to the second questions is more difficult.  The analogy with the house holder is a good one, if the property owner doesn’t need your assistance what obligation is there to give it.  Part of the problem is that the SES Act makes no effort to define ‘emergency’.   The State Emergency and Rescue Management Act 1989 (NSW) (in s 4) defines emergency as:

… an actual or imminent occurrence (such as fire, flood, storm, earthquake, explosion, terrorist act, accident, epidemic or warlike action) which:

(a) endangers, or threatens to endanger, the safety or health of persons or animals in the State, or

(b) destroys or damages, or threatens to destroy or damage, property in the State,

being an emergency which requires a significant and co-ordinated response.

The events described in question 2 meet the criteria as they are caused by a storm that has damaged property but they may not need ‘a significant and co-ordinated response’.  (On that definition a house fire and a heart attack are not emergencies either so the definition is of pretty limited application).  It is true, too, that the SES is ‘to act as the combat agency for damage control for storms’ (State Emergency Service Act 1989 (NSW) s 8(b)) but at what point is the damage controlled?

I can not see that there is any obligation to follow up on the cases described as the SES is no more responsible here than they are to the home owner but that does not meant the SES has no obligations.  There is a real risk that the fallen trees, as described, are dangerous.  The SES is to ‘to protect persons from dangers to their safety and health, and to protect property from destruction or damage, arising from floods, storms and tsunamis’ (s 8(aa)) and that’s different, that’s not controlling damage, that’s protecting people.  The SES could therefore be expected to make sure the scene is reasonably safe, taking into account, as always, the magnitude of the risk, how likely it is, the cost and inconvenience of taking action and other conflicting responsibilities (Wyong Shire Council v Shirt (1980) 146 CLR 40).  In examples (1) and (3), above, the SES may want to rope or tape off the relevant area, on the road put up some emergency lighting to warn oncoming drivers.   I would have thought with example (2) you would not want to leave until the electricity authorities attended and rendered the scene safe and in the meantime you would take action to close the footpath and/or road to make sure there was no-one likely to have a tree, or powerline, fall on them.

The other jobs must be assessed in the same way that the Council or the RMS will assess them: What’s the priority? Is it actually safe?  Is it reasonable to leave it in the hands of the occupier (the council or RMS) given it’s there tree and their property?  What other competing demands are on the SES?  If you’ve rendered it reasonably safe I would suggest you have done your duty under s 8(aa) and as for s 8(b) the damage is in effect, controlled, it’s not happening and it’s not getting any worse.  On the other hand, if you think the tree on the road is a clear and obvious danger and there’s no way to deal with it other than by removing it you need to impress that on the RMS and again that may mean standing by to direct traffic, calling the police (who will not doubt get council moving) or otherwise persuading them their risk assessment is wrong.  But if you think the situation is reasonably safe, there is nothing I can see in the SES Act, or common law, that would require the SES, and in particular volunteers who come on duty during an emergency but then have their private lives to return to, to follow up once you have communicated with the ‘owner’ and are satisfied that they are aware of the issue.

The answer will be different if the Commissioner has directed that there is to be follow up.  The Commissioner is ‘responsible for managing and controlling the activities of the State Emergency Service’ and  ‘is to have overall control of operations in response to an emergency’ caused by flood, storm or tsunami (State Emergency Service Act 1989 (NSW) ss 11, 19 and 20).  If the Commissioner decides that he or she requires the SES to follow up on such tasks, as an exercise of his or her control over the service or to satisfy him or herself that the emergency operations are complete, then he or she can require that and a local controller would be required to give effect to that direction (s 17(3)).  Here, however, I was told that this requirement was communicated ‘‘informally’ by staff members’ rather than as a direction from the Commissioner or his or her delegate (eg a Region Controller).  Absent a formal direction my answer is as above.  If there is a formal direction then yes, follow up is required, not because the law requires it but because the Commissioner requires it and the law requires that the Commissioner’s directions are given effect.

I received this question from a Director of a First Aid and Emergency Response Training company in Central Queensland.  My correspondent writes:

I have had questions from our trained first aider about whether they are covered if they render first aid and something goes horribly wrong.

I have been researching and have found nothing that is concrete for our normal everyday mums and dads that are trained in First Aid.  There are acts and regulations that cover Drs, Nurses, Qld Ambulance Paramedics, Qld Fire, Careflight, Royal Flying Doctors Service and others but nothing for First Aiders that don’t belong to an organisation.

I have found an association of first aiders in the UK that seem to be supporting First Aid in some way.  What do we need to do to have something in place that covers our front line first aiders?

I look forward to any assistance that you can provide and I will eagerly await your response.

Nearly all Australian states and territories have in place good Samaritan legislation to ensure that people who step forward to provide emergency medical assistance are not held legally liable for their actions provided they act in good faith (Civil Laws (Wrongs) Act 2002 (ACT) s 5; Civil Liability Act 2002 (NSW) s 57; Personal Injuries (Liabilities and Damages) Act (NT) s 8; Civil Liability Act 1936 (SA) s 74; Civil Liability Act 2002 (Tas) s 35B; Wrongs Act 1958 (Vic) s 31B; Civil Liability Act 2002 (WA) s 5AD).

These provisions were introduced following the Ipp Review into the Law of Negligence even though the Review did not recommend that any such legislation was necessary. The Review’s final report said:

The Panel understands that health-care professionals have long expressed a sense of anxiety about the possibility of legal liability for negligence arising from the giving of assistance in emergency situations. However, the Panel is not aware, from its researches or from submissions received by it, of any Australian case in which a good Samaritan (a person who gives assistance in an emergency) has been sued by a person claiming that the actions of the good Samaritan were negligent. Nor are we aware of any insurance-related difficulties in this area.

Under current law, the fact that a person (including a health- professional) was acting in an emergency situation is relevant to deciding whether the person acted negligently. It may be reasonable in an emergency situation to take a risk that it would not be reasonable to take if there was no emergency, provided that precautions appropriate to the circumstances are taken to prevent the risk materialising.

Also relevant to the issue of negligence is the skill that the good Samaritan professed to have. Suppose a passenger on an aircraft has a heart attack, and in response to a call for assistance by the cabin staff, a 60 year old specialist dermatologist goes to the passenger’s aid. The standard of care expected of the doctor would be set not only taking account of the emergency nature of the situation, but also of the fact that a doctor who has practised as a dermatologist for many years could not be expected to be as well-qualified and able to provide emergency treatment for a heart-attack victim as a cardiac surgeon or even, perhaps, an active general practitioner.

The Panel’s view is that because the emergency nature of the circumstances, and the skills of the good Samaritan, are currently taken into account in determining the issue of negligence, it is unnecessary and, indeed, undesirable to go further and to exempt good Samaritans entirely from the possibility of being sued for negligence. A complete exemption from liability for rendering assistance in an emergency would tip the scales of personal responsibility too heavily in favour of interveners and against the interests of those requiring assistance. In our view, there are no compelling arguments for such an exemption. (Ipp Review of the Law of Negligence, Final Report (Commonwealth of Australia, 2002), [7.21]-[7.24]).

Even though the Ipp Review saw no need for this type of legislation the states and territories all moved to solve the problem of community fear of legal liability.

The exception is Queensland. Queensland has the Law Reform Act 1995 (which replaces the Voluntary Aid in Emergency Act 1973). This Act (as did the 1973 Act) provides that a medical practitioner, a nurse or a member of an organisation listed in the regulations is not liable for acts done in good faith and without gross negligence. There are no regulations (and so no prescribed organisations) under the Law Reform Act 1995, but the Civil Liability Act 2003 (Qld) also provides legal protection for people who provide first aid as part of their duties as a member of an organisation listed in the regulation (s 26) and the organisation is also protected (s 27).   The list of protected organisations is set out in the Civil Liability Regulation 2014 (Qld) schedules 1 and 2.

So my correspondent is correct, in Queensland there is no legal protection

… for our normal everyday mums and dads that are trained in First Aid.  There are acts and regulations that cover Drs, Nurses, Qld Ambulance Paramedics, Qld Fire, Careflight, Royal Flying Doctors Service and others but nothing for First Aiders that don’t belong to an organisation.

But remember the Ipp Review said no such protection was necessary.   Taking into account the circumstances in which first aid is rendered and the care that can be expected the risk of ‘…normal everyday mums and dads that are trained in First Aid’ being sued, even if ‘something goes horribly wrong’ is so remote that it’s what we lawyers might call ‘far fetched and fanciful’.   It is still the case that there is no reported ‘Australian case in which a good Samaritan (a person who gives assistance in an emergency) has been sued by a person claiming that the actions of the good Samaritan were negligent’. Remember also that Queensland is the State that has had the oldest piece of good Samaritan type legislation in the Voluntary Aid in Emergency Act 1973 and even though that Act (like the 1995) Act was limited in its application to doctors and nurses, there are no reported cases where it’s ever been relied upon. No-one has ever raised it as a defence, now that may be because potential plaintiffs knew it was there and didn’t bother bringing an action, but a more likely explanation is because people just don’t get sued in these circumstances.

People don’t get sued in these circumstances as they will not be under a duty to attend ie there is no duty to rescue, even if you’re trained in first aid (Stuart v Kirkland-Veenstra (2009) 237 CLR 215); if they do provide first aid the standard of care is to act reasonably in all the circumstances which includes the nature of the emergency and their training and what can be expected of someone who perhaps has done two day course sometime in the last three years. In an emergency the courts are very generous to the fact that a person’s conduct is not to be judged as negligent because, in retrospect, it appears that another course of action would have been better.

[A] man is not to be charged with negligence if he, not being the creator of the crisis or emergency which has arisen, finds himself faced with a situation which requires immediate action of some sort and if, in the so called “agony of the moment”, he makes an error of judgment and takes a step which wiser counsels and more careful thought would have suggested was unwise. (Leishman v Thomas (1958) 75 WN(NSW) 173 at 175).

In these circumstances the good Samaritan’s duty isn’t to ensure a good outcome; ‘If he volunteers his assistance, his only duty as a matter of law is not to make the victim’s condition worse’ (Capital and Counties v Hampshire County Council [1997] 2 All ER 865).

But back to the question of ‘What do we need to do to have something in place that covers our front line first aiders?’ The answer to that depends on what is meant by ‘we’. If ‘we’ is the broader Australian community then everyone, other than those in Queensland, have that protection. To provide that protection in Queensland what ‘we’ need to do is lobby the state government to amend the Civil Liability Act 2003 (Qld) to include a good Samaritan provision that mirrors the legislation in every other state and territory.

If, on the other hand, ‘we’ means my correspondent’s First Aid and Emergency Response Training company then they too can lobby their local MP or they could try to find an insurance company that was willing to offer insurance to be sold to those who do a first aid course. I recall some years ago St John Ambulance (NSW) did offer an insurance policy for a small premium on top of the course fees but I’ve not heard of that in recent times so I assume that is no longer available.

Providing indemnity cover for ‘normal everyday mums and dads that are trained in First Aid’ would be a good risk for an insurance company – they can get the premium to cover a risk that is virtually non-existent. Insurance could however change the risk. One-thing lawyers understand is that litigation for negligence is about the money, courts can offer nothing else but money so there is no value in suing someone who does not have money to pay the claimed damages. That’s one thing that protects ‘normal everyday mums and dads that are trained in First Aid’, apart from almost insurmountable legal difficulties they’re not worth suing. Any injured person would look to a more financial defendant, eg the defendant that caused the accident, the hospital or state ambulance service etc. If, however, there was insurance, that would mean that there is someone behind the first aider with the funds to pay any damages and costs. That could change the risk. In that case the plaintiff’s ‘gamble’ of taking action has better odds so the perverse result of advocating for first aid insurance could be that, rather than protecting first aiders, it increases the risk that they could be sued. The risk of legal action would remain small for the legal reasons mentioned above, but it is something to consider.

A correspondent has written that:

I have become aware of a couple of apps (one of which appears to be seeking start up in Australia) which encourages people to install and activate when they experience an emergency and also seek responders to register to receive notification of emergencies.

The website can be found here –  https://goodsamapp.org/home

Here is an alternate site/service – http://vimeo.com/100220010

My question is whether civil liability / wrongs / Good Samaritan legislation that exists in Australia (especially SA) afford protection to a responder who has registered and subsequently responds to an emergency. Also would it matter where they were a non-health professional v’s a health professional?

I would welcome any insight and thoughts that you might have with this emerging use of technology and whether there is any risk of exposure to the registered responders from a wrongs / liability perspective?

If you don’t want to go to the web sites the gist of these apps is that people who have downloaded the app are alerted to a nearby person in need. In one case the app is related to the San Diego fire dispatch system so the alert is sent out by the fire service. The ‘goodsamapp’ requires that the person in need trigger the app on their phone and that sets off the app on nearby phones. According to the video on the website the person who receives the message can ‘accept’ or ‘reject’ the call and that lets the person in need know that someone is coming. The app also calls the local emergency number and hopefully if the app is available in Australia it will be programed to call triple zero.  I assume it is the ‘goodsamapp’ that might be relevant in Australia so it is that app I’ll discuss basing my comments on my understanding of the app, taken from the video on the website, above.

The South Australian good Samaritan provision is found in the Civil Liability Act 1936 (SA) s 74. That section provides that ‘a person who, acting without expectation of payment or other consideration, comes to the aid of a person who is apparently in need of emergency assistance’ has no ‘no personal civil liability for an act or omission done or made in good faith and without recklessness in assisting’ the person in need. This Act would apply to a person who responds to a call via the app and provides assistance. In that context it would make no difference whether the responder is a medical practitioner or not.

The issue is not the person who responds, it’s the person who doesn’t. Generally there is no duty to rescue (Stuart v Kirkland-Veenstra [2009] HCA 15) but that position can be doubted. In Woods v Lowns (1996) Aust Torts Reports ¶81-376 a doctor was held liable for not responding to assist when asked to do so in a professional capacity. Further in Kent v Griffiths [2000] 2 All ER 474, the London Ambulance Service was liable for not responding in a timely manner to an emergency call (see also ‘Failure to attend by NSW Police and Ambulance’, 18 December 2013).

Signing up for the app is unlikely to somehow create a legal duty to attend when a call for help is received. Whilst not directly applicable, in Hargrave v Goldman (1963) 110 CLR 40 the defendant knocked down a tree that had been set alight by lightning. The fire ultimately escaped and caused significant damage (see Rodger GJ (1961) ‘Report of the Royal Commission Appointed to Enquire into and Report upon the Bushfires of December 1960 and January, February and March 1961, Western Australia’ (Government of Western Australia: Perth)). The defendant denied that he owed any duty of care as he did not cause or light the fire. The plaintiff alleged that by knocking the tree down and taking effort to extinguish the fire the defendant took ‘ownership’ of the fire and thereby owed a duty of care. Windeyer J said (at p 65):

But here what the respondent did in relation to the fire was not done pursuant to any undertaking to the appellants, nor was it done specifically for their benefit. It did not increase the danger of the fire spreading. Probably it diminished it. It seems to me impossible to say that, because the respondent did something to control the fire, he incurred a liability that he would not have incurred had he done nothing. If that were the law, a man might be reluctant to try to stop a bush fire lest, if he failed in his endeavours, he should incur a liability that he would not incur if he remained passive.

As I say that’s not directly applicable but one can draw some links. The person who downloads the app does not do that for the benefit of any particular person, one cannot know who, when or where will use the app to call for assistance. Downloading the app does not increase the risk to anyone. Holding that downloading the app somehow imposed a duty to assist would be to impose a duty that the person ‘would not have incurred had he [or she] done nothing’. That seems contrary to the policy of law.

Even receiving a request for response but failing to respond does not increase the risk to anyone. Further, in Kent v Griffiths, one of the key issues was that the patient waited at home for the ambulance which may not have happened if he had been told the ambulance was not on its way. The ‘goodsamapp’ also calls the emergency number so the person is not waiting for the good Samaritan rather than calling an ambulance. Further if the call is rejected they know they are not waiting for a good Samaritan.

Using the app to call for assistance is not like the situation in Woods v Lowns. In that case the doctor was asked in his professional capacity at his place of work. The person who sets off the app is not calling anyone in particular so they are not calling a particular person because they know they are a doctor. And a doctor who is out, rather than at work at his or her place of practice but not yet seeing patients (as was the case in Woods v Lowns) is likely to have many reasons why they cannot attend. A doctor who is out shopping, or attending to his or her business will not be under a duty to assist and nothing in Woods v Lowns would suggest otherwise.

Even if the person said that they accepted the call, but then did not arrive that is unlikely to give rise to liability as there is no duty to rescue or even respond (Stuart v Kirkland-Veenstra [2009] HCA 15; Capital and Counties v Hampshire County Council [1997] 3 WLR 331). Further, proving that the rescuer would have made a difference if they did arrive would be difficult.

Even if downloading the app did, in some bizarre way, give rise to a duty of care, the question of whether or not a person had to respond would require consideration of ‘the expense, difficulty and inconvenience’ of responding as well as ‘any other conflicting responsibilities’ (Wyong Shire Council v Shirt (1980) 146 CLR 40). So the fact that a person is out and about, unable to attend because of the distance, what else they are doing, the care of children etc would all give a reasonable excuse not to attend.

The question of a duty to respond may not be so clear if the person with the app is a paramedic or police officer, in particular if they at work.   For them, receiving a signal on the app would be like hearing a person calling for help or knocking on the window of the ambulance and asking for assistance. Those officers could be under a duty to assist, depending on what else they are doing at the time, but that duty could probably be met by simply reporting the call if they cannot personally respond (see again ‘Failure to attend by NSW Police and Ambulance’, 18 December 2013).

The one issue here is whether anyone can identify who received and rejected a call.   A person trained in first aid or emergency care can choose to ignore a call for assistance and most of the time, no-one will know that they were there and chose not to assist. With the app there may be a way to identify who received the call and rejected, or ignored, it. Whilst I do not think that person would be liable we all know liability is not the only issue, the process is the problem. Who knows what someone, particularly someone who lost a loved one, would do with that information. The person who ignores or rejects a call for assistance may be subject to criticism or questioning by the media. If they are a doctor or other health professional there may be a complaint. In an extreme case someone may chose to try a legal action and whilst I don’t think they would win, that would be little comfort.

Without knowing the details of the system, and explicitly not giving legal advice to the app developers, the idea of crowd sourcing assistance seems like a novel use of technology but at least in Australian law it is unlikely to create any legal risk for those who might download the app so that they can make themselves available to assist. The most significant risk that I can see is that it may identify who received the call and so then who ignored or rejected the call may also be identified. They would not, in my view, have a legal liability but being identified as someone who had downloaded the app but who then didn’t help when asked could lead to unintended, and possibly unpleasant, consequences.

That appears to be a question to be resolved by the Victorian courts in a claim for compensation brought by an injured police officer (see ‘State denies duty of care to injured police’ The Age 5 July 2014 ). In that article we are told that

The state government and Victoria Police are using an arcane legal technicality to block seriously injured police officers from suing the force for compensation, claiming they owe no duty of care to members hurt in the line of duty.

Actually the claim is not that arcane. Police officers have never been held to be employees at common law because they are appointed to the office of constable and it is up to a constable to decide, on his or her own initiative, not at the direction of others, how to perform his or her duties, that is who to arrest and when.   The office of constable is one of the oldest offices in law, dating back to the time of Henry I and long before there were recognised police forces. Lord Denning said, in R v Metropolitan Police Commissioner; Ex parte Blackburn [1968] 1 All ER 763 at 769, that a constable:

“… must decide whether or not suspected persons are to be prosecuted; and, if need be, bring the prosecution or see that it is brought; but in all these things he is not the servant of anyone, save of the law itself.

“No Minister of the Crown can tell him that he must, or must not, keep observation on this place or that; or that he must, or must not, prosecute this man or that one. Nor can any police authority tell him so. The responsibility for law enforcement lies on him. He is answerable to the law and to the law alone.”

(For a detailed history of the office of constable see The Office of Constable: The bedrock of modern day British policing (Police Federation of England and Wales, 2008)).

As far back as 1906 the High Court had to consider changes in the office of constable and they way constables were appointed and the increasing scope of their duties under legislation.   In Enever v R (1906) 3 CLR 969 Griffith CJ said:

… at common law constables had large powers necessarily incident to the discharge of their functions as peace officers or conservators of the peace, amongst which perhaps the most important was the authority to arrest on suspicion of felony. To these powers others of a like nature have from time to time been added by statutory provisions … But there is no reason for thinking that the mere statutory addition to the list of their powers altered the essential nature of those powers. It seems also to have been always accepted as settled law that … no responsibility for such[unlawful or unjustified] acts attached to those by whom he was appointed.

That is the development of modern police forces did not change the essential nature of the role of constable as an independent officer, not a mere employee who would, therefore be subject to direction and control in the performance of his or her duties. The Court (Griffith CJ, Barton and O’Connor JJ) held that the State of Tasmania was not vicariously liable for the torts of a constable as the constable was not the Crown’s servant or agent.

Today police officers, who are sworn constables, must abide by the relevant legislation that establishes the modern police force, in Victoria that’s the Victoria Police Act 2013 (Vic) (though at the time of the injuries complained of in this case the relevant Act was the Police Regulation Act 1958 (Vic)).

The issue of police employment arose in New South Wales v Fahy [2007] HCA 20. In this case Constable Fahy sued NSW alleging that the State was liable for the negligence of other police officers who, by their conduct, caused injury to her.   She alleged that the State was vicariously liable as the employer of the other officers. Kirby J in particular (but also Basten JA in the Court of Appeal) raised the question of whether or not the relationship was really an employment relationship but none of the parties to the proceeding wanted to raise that argument. Accordingly the court had to deal with the matter that the parties put into dispute.   What that means, in short, is that the State did not want to deny that they were liable for the other police even though they had been invited to do so. The case is not authority for the proposition that police are employees as the court did not decide that and it did not decide that as it was not asked to; but the issue was, at least in the mind of two judges, a very real issue.

Victoria Police or, more accurately the insurers for the State of Victoria do not seem so generous but one can’t say they are really relying on archaic law and, further, current Victorian legislation supports the claim. The Victoria Police Act 2013 (Vic) provides that the Victoria police consists of various police officers as well as Victoria Police employees confirming that police officers are not Victoria Police employees (s 7).   Although the Minister may give policy directions to the Commissioner, he or she cannot give a direction that relates to those traditional offices of constable, such as ‘preservation of the peace and the protection of life and property in relation to any person or group of persons’ and ‘enforcement of the law in relation to any person or group of persons’ (s 10).   Police officers are appointed by the Chief Commissioner (s 27), not the Crown and they are not employed in the public sector as the Public Administration Act 2004 (Vic) dealing with public sector employment does not apply to a police officer (Public Administration Act 2004 (Vic) s 106(1)(h)); compare this to the situation of police recruits who are employed (not appointed) (s 36).

The State will be vicariously liable for the torts of police by virtue of the Victoria Police Act 2013 ss 72-81. If police were employees of the Crown then these provisions would not be necessary.  All of this supports the claim that police are appointed, but not employed by the Commissioner.

If police are not employees it does not follow that ‘The Police Enterprise Agreement refers to officers as employees, so the agreement would thus be void’ and ‘No new agreement can be formed because the Fair Work Act only applies to employees’ (see ‘Cowardly Claim’ (Letter to the Editor)).   The Fair Work Act 2009 (Cth) does refer to employees and employers but it has an extended definition of the word ‘employee’. An employee includes a ‘reference to a law enforcement officer of a State …’ (ss 30E and 30P) that is police are deemed to be employees for the purposes of the Fair Work Act.  Members of Victoria Police are also deemed to be employees for the purposes of the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) (see s 4(3) and Schedule 1).   Provisions deeming a person to be an employee would not be necessary if the person was, in law, an employee.

All of this means that police are treated like employees, the State is vicariously liable for their torts and their work entitlements are governed by the relevant Enterprise Agreement but the State appears to want to ensure that they are not employees so they are not subject to the sort of direction that employees are. They are ensuring that police remain independent law enforcement officers that are to exercise their choice to investigate and prosecute offences, the Constable (whatever their rank) ‘is answerable to the law and to the law alone’.

As noted the current police Act is the Victoria Police Act 2013. The claims discussed in the article that stimulated this post arose under the Police Regulation Act 1958 (Vic). What, if any, the impact of the older legislation may have, and what impact the rule that police are not in fact employees will have on the alleged common law duty of care remains to be seen.

This question from a MICA [Mobile Intensive Care Ambulance] paramedic in Victoria who writes:

… in the course of doing monthly clinical audits I came upon the following scenario and was hoping to get an opinion from you as to appropriate actions and / or responsibilities.

Two ALS paramedics were called to a nursing home in answer to a request to transport an elderly demented patient who had become difficult to physically manage by the nursing home staff, including frequent outbursts of violence – unfortunately not uncommon in dementia but usually medicated for, but not on this occasion.   In Victoria we have a guideline that allows for sedation of the “agitated or aggressive” patient, via intramuscular or intravenous Midazolam.   On this occasion the nursing home staff instructed the ALS paramedics not to administer any treatment including sedation.   A discussion ensued during which the relative with Medical Power of Attorney was contacted, who also refused any treatment but demanded transport to hospital.

My question is this:  in the above scenario what are the obligations, responsibilities and “rights” of the attending paramedics?

Consent to medical treatment is a fundamental issue in bioethics and health law. One cannot give treatment without the patient’s consent or other lawful authority, but that does not mean that you have to give everything the patient consents to. For example a person may go to the doctor seeking antibiotics for their viral infection, they may consent but that does not mean the doctor has to give the prescription.   In a more dramatic scenario, the patient may wish to impose conditions but that may mean the treatment can’t be done, for example a person may consent to surgery but for some reason say that they do not want the doctor or nurses to wear gloves. In those circumstances it may be said that the treatment cannot proceed. The right, indeed the need for consent, does not mean that one has to do everything the patient wants but of course it is prudent and right to consider what the patient wants and accommodate their wants if that can be done. There are lots of reasons why the patient’s wishes cannot be met, they may mean the treatment will be ineffective, that it will be too dangerous, or that it poses an unacceptable risk to the health staff or others.   Let us then consider the scenario we’ve been given.

First, just because ‘the nursing home staff instructed the ALS paramedics not to administer any treatment including sedation’ it does not mean that the paramedics have to follow that direction. Imagine if the boot was on the other foot and a paramedic arrived at hospital and told the doctors and nurses not to administer some particular treatment. I’m sure they would rightly thank the paramedic for his or her advice and then ignore the direction. Paramedics are no more a nurses handmaiden than nurses, today, are the doctor’s handmaiden. Paramedicine is it’s own discipline, with its own professional standards. Providing ‘ambulance’ care is not the same as providing nursing care (though there may be many overlaps). One critical issue for ambulance paramedics is not only the patient’s interest but also the safety of paramedics in the confined space of the ambulance and the risk to other road users.   If the patient is ‘difficult to physically manage … including frequent outbursts of violence’ then they pose a risk to road users should they become violent on the road, and that needs to be managed.

Ambulance Victoria Clinical Practice Guideline CPG A0708 deals with ‘The Agitated Patient’. That guideline ‘does not apply to Pts [Patients] who have been recommended for Tx [treatment] under the Mental Health Act’ and I will assume, therefore, that this patient was not being treated under that Act. As that CPG states ‘Paramedic safety is paramount’.   If underlying causes have been managed appropriately but the patient remains agitated Midazolam may be administered.

In this case a ‘discussion ensued [with] the relative with Medical Power of Attorney … who also refused any treatment but demanded transport to hospital’. An agent who has been given an ‘Enduring Power of Attorney (Medical Treatment)’ may make decisions regarding a person’s health care (Medical Treatment Act 1988 (Vic) s 5A).   The agent may refuse treatment if, and only if, they have been informed of the patient’s condition and understand that information; and

(a)      the medical treatment would cause unreasonable distress to the patient; or

(b)      there are reasonable grounds for believing that the patient, if competent, and after giving serious consideration to his or her health and well-being, would consider that the medical treatment is unwarranted. (Medical Treatment Act 1988 (Vic) s 5B).

The problem with the story that we’ve been given is that we don’t know why it was thought sedation was not appropriate.

It is not clear, if a conversation occurred whilst the ambulance was there wanting to transport the patient, if the medical attorney could have been sufficiently informed to make the decision to refuse particular treatment, in this case, sedation.

Further, we certainly don’t know if it was suggested that the treatment would cause ‘unreasonable’ distress to the patient, but what is ‘unreasonable’ has to take into account the need to transport the patient to hospital in an ambulance. The fact that it causes some distress may not mean the distress is ‘unreasonable’ in the circumstances. It must be noted that one of the criterion in either s 5B(2)(a) or (b), quoted above, must be met for the attorney’s refusal to be binding.

Finally, as noted above, even if there is a right to refuse treatment that does not give a right to demand treatment that is unwarranted or cannot be safely delivered without that treatment that has been refused. Just as one couldn’t insist that a doctor perform surgery without gloves, so too the attorney, who may be able to refuse sedation, cannot ‘demand’ that the patient is transported if the transport cannot be done, safely, without the necessary sedation.

Without these critical clinical details it’s not possible to be definitive but the discussion above, does help to suggest what the rights and duties of the paramedics were, or are.

The first point is that if paramedics are, and want to be, professional they need to engage, and be engaged, as part of the health care team. The nursing home staff can’t tell the paramedics how to do their job but they can and should deliver clinically relevant information to the paramedics to ensure that the patient gets the best possible care in accordance with their wishes. The paramedics need to understand why the nursing home staff are asking (not instructing) the paramedics ‘not to administer any treatment including sedation’ and should be willing to accommodate those concerns if they are clinically and ethically relevant. If there is, or was, a sound clinical reason for the request then the paramedics need to work with the rest of the health care team to determine what alternatives there are that would allow the patient to be transported in a way that meets their clinical needs and also ensures the safety of the paramedics and other road users.

Equally the attorney may consent, or refuse, treatment but they cannot insist on treatment. In the circumstances if there is no way to transport the patient without physical or pharmacological restraint that has to be communicated; it may come down to the fact that if the attorney refuses sedation they are in fact refusing ambulance transport! That cannot be used as a glib answer, ‘take what we offer or nothing at all’. As with the concerns of the nurses, the attorney’s concerns need to be considered and, if possible, accommodated, but if not possible then that too has to be communicated.

In short however, neither the nursing home staff nor the attorney can demand that the paramedics transport the person without sedation if sedation is clinically warranted and essential to ensure the safety of the paramedics and other road users. If they refuse that treatment and the refusal is valid then alternative transport or treatment would need to be arranged.

The Emergency Management Act 2013 (Vic) came into force on 1 July (see ‘New laws come into force’, 7 July 2014).  Even thought this is a new Act it is already subject to amendments. The Emergency Management Amendment (Critical Infrastructure Resilience) Bill 2014 (Vic) was introduced to the Victorian Parliament on 5 August 2014 and this Bill will, if passed, amend the 2013 Act to provide for the further development of critical infrastructure resilience.

In short, the Bill will provide for three categories of critical infrastructure, significant critical infrastructure, major critical infrastructure and vital critical infrastructure. Ministers who have responsibility for infrastructure to assess that infrastructure using prescribed ‘criticality assessment methodology’. Once the infrastructure has been assessed it is to be recorded on the Victorian Critical Infrastructure Register that will be maintained by Emergency Management Victoria. The entity responsible for critical infrastructure will be required to ensure that there is a relevant emergency management plan that is audited every 12 months. Relevant officers with emergency management or counter-terrorism responsibilities may access the register to obtain details of the infrastructure and who is responsible for that infrastructure.

The Bill will, if passed, come into force on 1 July 2015 unless proclaimed to commence earlier.

I have been asked this question about relationships between Fire and Rescue NSW and the NSW Rural Fire Service.

I would like you to advise on the following matter concerning rescue response. Sometime ago a MOU was signed in a particular region between NSW Rural Fire Service (RFS) and Fire & Rescue NSW (FRNSW) with the intention to set out how both services respond to fire calls in a given area.

The way the MOU has been interpreted due to the MOU referring to “all incidents” now sees the local RFS brigade being responded to all and every incident under the MOU, including all rescues.

This was never the intention of the MOU, it was written meaning “fire incidents” and not HAZMAT, rescues or storm damage.

That said, as FRNSW responds the RFS they turn out the RFS to every incident because the computer system flags the RFS to respond to every incident including non-fire related rescue incidents, for example, a child with their finger in a plug- hole!

Section 52 of the SERM Act 1989 clearly states what the definition of a rescue unit is. The RFS have no rescue units in NSW. Furthermore, S.118 of the State Rescue Board Policy (SRB Policy) states accreditation must be approved by the Minister. The RFS have no approval by the Minister to respond to rescue incidents as a rescue unit.

Then at S.2.15 of the Policy it states it is illegal under the SERM Act for non-accredited rescue units (read RFS) to respond without the authority of the police. That said, it is clear that NSW Police Force can call any resource to a rescue under S.1.14, but it is not the police but FRNSW Communications responding the RFS to rescue calls.

At S.2.10 the policy mentions response to motor vehicle accidents with persons trapped. Here it states that the fire service with the operational jurisdiction for the area is to respond and provide fire protection. Again, FRNSW Communication Centres respond the RFS to provide fire protection despite the call being well within FRNSW Fire District….and all because of the word “all incidents contained within the MOU”.

It is clear under S.2.11 of the SRB Policy that not all emergency services maybe required to attend all rescues. That aside, the RFS have no rescue training (GLR), equipment or accreditation.

On the balance of the above, are FRNSW through their Communication Centres in breach, or at the very least not carrying out the intention of the SRB Policy, by responding the RFS to all rescues incidents in the operational area which the MOU covers?

Notwithstanding the above, there is not a shadow of a doubt the RFS are not an accredited rescue unit, the RFS are not trained in rescue and it clearly states it is illegal to respond to such incidents without the approval or the request of the police. Would you advise that action be taken through official channels to have the response of the RFS to all rescue calls, as described, changed to be in-line with SRB Policy? Is the action of FRNSW Communication Centres illegal as described in the Policy?

Your professional consideration of the above matters would be greatly appreciated.

The State Emergency and Rescue Management Act 1989 (NSW) does provide for State Rescue Management (part 3).   The Act establishes the State Rescue Board that is to ‘ensure the maintenance of efficient and effective rescue services throughout the State’ (s 47) and to ‘make recommendations to the Minister on the accreditation of rescue units (both permanent and volunteer) for participation in rescue operations’ (s 48(1)(h)).   Police are required to coordinate all rescue operations (s 50).  It is an offence to operate a rescue unit (that is ‘a unit (comprising a group of persons) which carries out rescue operations for the protection of the public or a section of the public’ (s 52)) or operate a rescue vehicle (that is, a vehicle that is designed, adapted or equipped for use in rescue work and: (a) is clearly marked with the word “Rescue”, or (b) is fitted with warning devices, such as flashing lights or a siren, or both (s 52)) is without appropriate accreditation (s 53) from the Minister (s 54).

The Board is to ‘make recommendations to the Minister on policy matters relating to the provision of rescue services within the State’ (s 48(1)(b)) and an accredited rescue unit is to give effect to the Board’s decisions (s 49).

The Board has published four policy statements (available at http://www.emergency.nsw.gov.au/publications/legislation_polices_guidelines).  They are the:

1. State Rescue Policy;
2. Flood Rescue Policy;
3. State Rescue Board Mandatory Equipment Lists; and
4. Vertical Rescue Directive.

I will accept, without verifying, that the RFS has no accredited rescue units. Paragraph 1.18 of the State Rescue Policy does refer to accreditation by the Minister but that is simply restating what the Act requires.  It is true that police, when exercising their obligation to coordinate rescue (State Emergency and Rescue Management Act 1989 (NSW) s 50) can ‘call-out any resource whether accredited or not to undertake a rescue or to assist in a rescue’ (State Rescue Policy [1.14]).  I assume that Fire and Rescue NSW is the primary accredited rescue unit for the relevant area (State Rescue Policy [1.30] and [2.01]).

Paragraph 2.15 of the State Rescue Policy says ‘It is illegal under the provisions of the Act for non-accredited units to respond to call-outs for rescue without the approval of the NSW Police Force’.   That’s not quite correct.  The Act says that it is an offence to maintain a rescue unit, or have a rescue vehicle without accreditation.  It says nothing about ‘turning out’ and the RFS I assume, does not claim to have a rescue unit nor are any of its trucks ‘clearly marked with the word “Rescue”’; so the RFS is not committing the offence provided for in s 53.

The NSW Rural Fire Service is ‘to provide rural fire services for New South Wales’ (Rural Fires Act 1997 (NSW) s 9(1)(a)).  The Service is also ‘to assist other emergency services organisations at incidents and at emergencies under the control of those organisations’ (s 9(1)(b)).

So where does that leave us?  Fire and Rescue NSW receive a call and respond both their own unit and the RFS.  There is no offence here (there is certainly no breach of s 53) and the RFS is meeting its obligation to assist FRNSW.  It may be that FRNSW have explained to the police and the local rescue committee (s 48A) of the MOU and that they will dispatch the RFS to ‘all incidents’.

In short if the MOU says ‘all incidents’ then what else are ComCen to do?  This is just an example of bad drafting and a misunderstanding.  The action of  FRNSW Communication Centres is not illegal, nor is the action of the RFS in turning out when called.   If the police object to the RFS response they should raise that with the fire agencies.  If RFS volunteers don’t want to turn out to these events as they don’t think that was intended or they have nothing to contribute then the appropriate response is not to point to law or suggest that there is some illegality, rather it is to revisit the MOU and amend it so that it says what was intended.

My colleague, Ruth Townsend, and I have been invited to make a regular contribution to Response, the official journal of Paramedics Australasia.  Our last column was ‘Restricting Paramedic Practice – An Issue of Professional Practice’ ((2014) 41(2) Response 33-35).

In that column we argued that a reported practice of Ambulance Victoria, in engaging advanced life support paramedics to work from stations that were not usually staffed by such officers, but paying them as if they were not advanced life support officers and restricting their scope of practice was unethical and could lead to issues of legal liability.   I should note that we did not confirm the details of that practice, rather we were reporting on the practice that was, in turn, reported in the press (see Kitchen, Kylie, ‘Just Ridiculous’ Midland Express, 25 March 2013 (Online) <http://www.elliottmidnews.com.au/story/1386816/just-ridiculous/?cs=1479&gt; accessed 10 April 2014).   If you like we took Kitchen’s story as a hypothetical to ask ‘assuming this is true, what are the consequences?’    Ambulance Victoria may well have a different view of what their policy says and what their actions are.

With that disclaimer in mind, I can now address a question that I received in response to that paper.  I have been asked:

Taking some of the points in your article a step further in the restriction of trade, if a licenced NEPT holder who has in place appropriately qualified staff and a drug permit which basically only allows them to carry Penthrane is called upon to treat say a cardiac arrest or someone in severe pain and the emergency ambulance is delayed in attending (without drug therapy), could the government also potentially be liable for not allowing/issuing an appropriate drug permit to the NEPT provider for their staff to utilise their skills (drugs) in a safe and appropriate manner? Just to add this also some staff may also be working for an emergency ambulance service or defence or are authorised by another state/territory to use the drugs required to manage these patients.

The answer to that question is ‘no; the government [is not] … potentially be liable for not allowing/issuing an appropriate drug permit to the NEPT provider for their staff to utilise their skills (drugs) in a safe and appropriate manner.’

In our paper in Response we made some critical assumptions, most importantly that the equipment and drugs necessary to provide advanced care were available but not used due to the instructions from the employer.   We said:

It should be noted here that if those resources are not available then the staff cannot be held liable or subject to professional discipline, for not using equipment or resources that they do not have (Wrongs Act 1958 (Vic) s 83). The ambulance service may be liable for not providing those resources, however if the risk, expense, difficulty or inconvenience of providing those resources is considered by Ambulance service to be too high, then it may be reasonable not to equip every ambulance to the MICA standard and the Ambulance Service would also not be liable.  Further discussion of these resourcing issues is beyond the scope of this paper so for this discussion we assume that MICA resources are available. 

I can expand on that a bit further.  The law requires a potential defendant to act ‘reasonably’.  What is the reasonable response to a risk requires consideration of the cost, expense etc of taking alleviating action (Wyong Shire Council v Shirt (1980) 146 CLR 40).   That’s true of a defendant like the ambulance service if it’s making decisions about the allocation of resources (eg do we equip every ambulance as a Mobile Intensive Care Ambulance (MICA)). 

The situation is even clearer for governments.  There is a distinction between the administrative, legislative and judicial arms of government and each has to leave to the other their own ‘space’.  In In Sutherland Shire Council v Heyman (1985) 157 CLR 424 at 469, Mason J said:

The distinction between policy and operational factors is not easy to formulate, but the dividing line between them will be observed if we recognise that a public authority is under no duty of care in relation to decisions which involve or are dictated by financial, economic, social or political factors or constraints. Thus budgetary allocations and the constraints which they entail in terms of allocation of resources cannot be made the subject of a duty of care. But it may be otherwise when the courts are called upon to apply a standard of care to action or inaction that is merely the product of administrative direction, expert or professional opinion, technical standards or general standards of reasonableness.

This common law statement is reinforced in legislation.  The Wrongs Act 1958 (Vic) s 83 says:

In determining whether a public authority has a duty of care or has breached a duty of care, a court is to consider the following principles (among other relevant things)—

(a) the functions required to be exercised by the authority are limited by the financial and other resources that are reasonably available to the authority for the purpose of exercising those functions;

(b) the functions required to be exercised by the authority are to be determined by reference to the broad range of its activities (and not merely by reference to the matter to which the proceeding relates);

(c) the authority may rely on evidence of its compliance with the general procedures and applicable standards for the exercise of its functions as evidence of the proper exercise of its functions in the matter to which the proceeding relates.

These statements have a number of implications. 

First you cannot sue governments over the exercise of their legislative or quasi-legislative powers (see also Vairy v Wyong Shire (2005) 223 CLR 422 and Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1).  What that piece of jargon means is you cannot sue the government for making a bad law or failing to make a good one.  The government of Victoria has implemented a policy through the enactment of the Non-Emergency Patient Transport Act 2003 (Vic) and that Act only allows people to provide non-emergency patient transport if they hold the appropriate licences and authorities.  Equally the Drugs, Poisons and Controlled Substances Act 1981 (Vic) sets out who can use drugs, who can grant authorities, when they can be granted etc.    You can’t sue the government if the application of those laws and policies leads to adverse outcomes for some.  The idea of democracy (at least our democracy) is that we get to vote for our MPs and if we don’t like the laws they are making we can vote for someone else.   You also can’t sue the various departments that have to administer the law and make the regulations (the quasi-legislative role) to give effect to those laws. 

Finally in deciding whether or not there is a duty of care you have to consider ‘the broad range of [the government’s]… activities’.  Governments when acting as a landlord, employer or in the market place owe a duty of care to an individual in the same way any other person does (Wrongs Act 1958 (Vic) s 14C; Crown Proceedings Act 1958 (Vic) s 11; Graham Barclay Oysters v Ryan (2002) 211 CLR 540, [11]-[12] (Gleeson CJ)).   But when deciding on policy options the government does not owe a duty to individuals.  Every policy has winners and losers, competition policy may improve consumer choice but it also allows one competitor to drive another out of business.  One can’t sue just because one is on the losing side of the scales so the fact that it is foreseeable that a MICA paramedic may be employed by an non-emergency patient transport provider, and a patient may have an unexpected crisis, and the MICA paramedic could assist if he or she had authority to carry the necessary drugs whilst engaged in this secondary employment, that would not and could not give rise to a common law duty of care, enforceable in the courts, to require the government to issue an authority to allow the MICA paramedic to have access to those drugs.  .

So the government can implement a policy regarding NEPT providers and the terms of their services and a patient cannot sue if the outcome is not in their best interests.

A correspondent has written:

May I ask, with the Emergency Services Legislation scheduled for September 2014, whether there are any specific statements with regards to bodies funded by the Government (for example, a hospital funded by the Department of Health) – for example – a client prevents a staff member (practitioner, nurse, etc) attempting to reach a person in distress and may be charged with a criminal offence for doing so?

I’ve received this information third hand and despite my research, I cannot locate any ‘obvious’ linkage between the EMA and the criminal offence of impeding access (eg client impeding access of practitioner to attend to another person in distress).

I did confirm that my correspondent was referring to the Emergency Management Act 2013 (Vic) That Act provided it would commence in September unless commenced earlier, and it was, in fact, commenced on 1 July (see ‘New laws come into force’, 7 July 2014).

The Emergency Management Act 2013 (Vic) makes no provision for anything like an offence of hindering the delivery of care.  The Act creates the State Crisis and Resilience Council, Emergency Management Victoria, the office of the Emergency Management Commissioner and makes provision for writing the State Emergency Response and Recovery Plans.

The Emergency Management Act 1986 (Vic) does create an offence of obstructing an emergency worker.  Section 36 says:

“A person, other than a person engaging in an emergency activity, must not, without reasonable excuse, obstruct, hinder or in any way interfere with a person engaging in an emergency activity.”

For the purposes of that section, ‘emergency activity’ means performing a role or discharging a responsibility under the state emergency response or recovery plan, training for that purpose or travelling to or from a place where one is required to perform that function (s 4).  There is no way the wording of that Act could be extended to suggest it applies to ‘to bodies funded by the Government (for example, a hospital funded by the Department of Health) – for example – a client prevents a staff member (practitioner, nurse, etc) attempting to reach a person in distress’ in their normal operations.

It could however extend to those agencies if they have a function under the disaster or response plan and are exercising that function; so if for example, the person is a member of a Department of Health disaster response team and are responding in accordance with the plan.  It should be noted that this is not a new section, s 36 has been in place since the Act was written in 1986 (though it was amended in 2012 to add the words ‘without reasonable excuse’; Emergency Services Legislation Amendment Act 2012(Vic) s 106).

In daily practice, anyone who ‘prevents a staff member (practitioner, nurse, etc) attempting to reach a person in distress’ may well commit an offence.  If they threaten the practitioner with violence then that’s an assault; if they actually touch the practitioner that is an assault.  If they are acting with an intention to cause serious harm or injury to the person in need then it would be an aggravated offence (ie assault with intent to cause grievous bodily harm), and if their intention was to see the person in need of assistance die, then the actions could amount to murder or attempted murder.

In response to my earlier post, New laws come into force (7 July 2014) “Cannulator” wrote a comment where he or she said:

Also commencing on 1st of July was the Victorian Mental Health Act 2014, with quite a few important changes that will impact on other Acts and the powers afforded to operational paramedics. Many changes to status, process and powers to behold!

It’s taken me some time to get to look at that Act, but having done so I have to agree with Cannulator.  The Act is too long to explore in detail here but we can make some quick observations.

First a search of the Act reveals that the term paramedic is used in only two sections – sections 3 and 350.  Section 350 says that a registered medical practitioner may administer sedation to a person where that is required to facilitate their transport, and that the practitioner may authorise a paramedic to administer that sedation.  So far that is nothing too controversial.

It is section 3 that has the hidden impact.  Section 3 is the definition section and it defines the term ‘authorised person’.  Many people are authorised persons, including paramedics, and authorised persons have significant powers.  An authorised person may:

• use bodily restraint to prevent serious and imminent harm to a person being taken to or from a designated health service (s 350);
• enter premises, apprehend and take person to a designated mental health service (s 353);
• search a person who is being transported to a designated health service in order to find anything that may pose a danger (s 354);
• may seize and detain anything found in that search (s 356);
• apprehend a person who is absent without leave from an interstate mental health facility (s 326);

These provisions are not so unique, as there are similar provisions in a number of states see Mental Health Act 2000 (NSW) s 20; Mental Health and Related Services Act 1998 (NT) s 31; Mental Health Act 2000 (Qld) ss 32–36; Mental Health Act 2009 (SA) s 56 and similar powers are proposed for the ACT (see Mental Health (Treatment and Care) Amendment Bill 2013 (ACT)).  That does not however make these provisions uncontroversial (see Ruth Townsend and Morgan Luck, ‘Protective Jurisdiction, Patient Autonomy and Paramedics: the Challenges of Applying the NSW Mental Health Act’ (2009) 7(4) Australasian Journal of Paramedicine Article 5) and raise critical questions about the role of paramedics and the appropriate division of roles between police and paramedics.

As ‘Cannulator’ says this new Act brings ‘Many changes to status, process and powers’ and it will be interesting to see how they are implemented in Victoria.

I’m responding to an issue on ‘twitter’ (but a word of caution, I really don’t follow twitter and rarely look at my account, so this is not an efficient way to get in touch with me; but it worked this time).

The ‘tweet’ says

“NZ case law confirms no requirement to resus when medically not in their best interest. #nzrc2014” same in Oz? Ping @EburnM

The link is to, I think, the New Zealand Resuscitation Council.

The case law is clear and that may be because the key cases come from the UK. I’m not sure what NZ case law the speaker was referring to; but in Australia the law that justifies treating a person who cannot give consent is the principle of necessity.  In In Re F [1990] 2 AC 1 Lord Justice Goff set out the test for necessity.  He said (p 25, emphasis added):

… 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 circumstances take, acting in the best interests of the assisted person.

In Airedale NHS Trust v Bland [1993] AC 789, the House of Lords had to consider whether doctors could withdraw treatment from Anthony Bland who had been crushed in the 1989 Hillsborough football stadium disaster.  Young Mr Bland was not dead, but was in a persistent vegetative state.  The judges agreed that there was no obligation to provide futile treatment and that the treatment that was keeping Mr Bland alive was indeed futile as there were no prospects for Mr Bland’s recovery.    As the treatment was not in Mr Bland’s best interests it could not be justified by the doctrine of necessity. Lord Browne-Wilkinson even suggested that if a practitioner

… comes to the reasonable conclusion … that further continuance of an intrusive life support system is not in the best interests of the patient, he can no longer lawfully continue that life support system: to do so would constitute the crime of battery and the tort of trespass to the person.

In that case they were talking about medical practitioners but there is no reason to think that the same test does not apply to paramedics and others where there action depends on ‘necessity’.

So a person who is called to resuscitate another need not do so if the treatment is not in the person’s best interests.  Most of the time a paramedic will not be able to make a judgement on that matter so of course resuscitation is the appropriate treatment, but that will not always be the case. For example a person may be terminally or chronically ill, perhaps expected to die or simply at the inevitable end of their life. It is legitimate to ask, for example, whether it is the best interests of a 99 year old person, wholly dependent on continuing care, to reuscitate them if they are found in cardiac arrest in their comfortable chair in front of the TV.   I don’t profess to be able to make those decisions, that is the ‘hard’ call for health practitioners, doctors, nurses and paramedics, but the law is clear, if treatment is not in the persons best interests it is not only appropriate to withhold that treatment, in Lord Browne-Wilkinson’s view it may be both a crime and tort to administer treatment that the practitioner has reasonable grounds to believe is not in the patient’s best interest.

 

I was contacted via LinkedIN and asked to comment on this order.  My correspondent wrote:

I read your articles with interest and thought you may be interested in dissecting the legality of general order 3 which the Metropolitan fire brigade has introduced for its operational firefighters.
Does it breach discrimination laws, including political beliefs, association, membership etc.

General Orders 3 gives clear direction to operational employees not to represent themselves to any person, persons or organisation in a manner contrary to the authorised position of the MFB. This prohibition includes where an individual is reasonably identified as a firefighter, despite the covering or removal of any MFB rank or insignia, or by otherwise disguising any uniform.

Interested to know your thoughts.

I asked for a copy of the order and was told:

I know myself and approx 2000 professional firefighter colleagues in Melbourne will read your response with interest. The timing was coincidentally around the launch of EB negotiations. It was perceived as an attempt to gag the firefighters and disengage them from the community.

There are already provisions under the MFB act which prohibit members from certain acts eg: bringing the board into disrepute.

I have now received a copy of the order along with these further questions:

Operational staff are reminded of general order 3 compliance whilst off duty by the chief officer.

Is general order 3 lawful in relation to ones activity and rights under discrimination laws, bullying and harassment in the workplace laws and human rights charter?

and

Does this general order breach other rights of firefighters?

And

Is it lawful to gag firefighters whilst off duty?

This includes political beliefs, association or activity whilst off duty. Given the public standing of firefighters in the community, members are often recognised and associated as such, firefighters, whether on duty or not.

I appreciate the want to protect the board, brand and standing in the community, but question whether the revised general order 3 has pushed the boundaries too far.

An internet search reveals that the United Firefighter’s Union ‘is seeking legal advice on this matter and after such … will notify members’ <http://www.ufuvic.asn.au/wp-content/uploads/2014/03/UFU-Bulletin-057-MFBs-new-general-order-no.-3.pdf>.

These questions are well outside my area of expertise being issues to do with labour or employment law and human rights law.  Victoria is in the rare position of having statutory guaranteed human rights in the Charter of Human Rights and Responsibilities Act 2006 (Vic).  (The position is rare as the ACT is, as I understand it, the only other Australian jurisdiction with human rights legislation, see Human Rights Act 2004 (ACT)).    Victoria also prohibits discrimination on the grounds of various attributes which include ‘employment activity’, ‘industrial activity’, ‘political belief or activity’ and ‘personal association … with a person who is identified by reference to any of the above attributes’ (Equal Opportunity Act 2010 (Vic) ss 6 and 7).

I am not sufficiently familiar with the law in any of these areas to make a significant contribution in this area, but mindful that ‘approx 2000 professional firefighter colleagues in Melbourne [might] … read [my] response with interest’ I thought I’d best put up a public response.

The provision of the order that is causing concern is, I infer, paragraph 3.2(i) which says:

‘… an operational staff member must not:

(i)                  represent him or herself to any person, persons, or organisation in a manner contrary to the authorised position of the MFB.  This prohibition includes where an individual is reasonably identified as a firefighter, despite the covering or removal of any MFB rank or insignia, or by otherwise disguising any uniform, appliance, equipment or facility (this includes uniform, appliances, equipment or facilities that are no longer in service or operation of have been superseded);’

My first thought is that applying the rule of ‘ejusdem generis’ (that is where there is a general list of examples, the general application of the rule will be limited to similar examples (http://legal-dictionary.thefreedictionary.com/Ejusdem+generis), then the sort of conduct that the rule is aimed at is a firefighter who is clearly acting as a firefighter but makes some poor attempt to disguise that fact, eg a firefighter who wants to say that the reason the fire is out of control is because of some MFB policy but before making that statement they remove their ‘turn out’ coat and put on a jacket.  We’ve all seen officers from various services in their uniform with a non-uniform coat or jacket and it’s still pretty obvious that they are wearing a uniform.  If that’s correct it would be hard to apply that to a member who’s off duty and not wearing any uniform items.  That is I would infer that the order can only apply when the person is representing him or herself as a firefighter or ‘is reasonably identified as a firefighter’ not when their position as a firefighter is irrelevant to the issue at hand.

It seems to me that the document, standing alone, cannot be contrary to the provisions of either the Charter of Human Rights and Responsibilities or the Equal Opportunity Act. Questions of whether the policy enshrined in the order is contrary to those rights and laws can only arise when there is an attempt to apply the Order.  The MFB will need to take account of the fact, for example, that it is unlawful to deny or limit access to opportunities for promotion, transfer or training, to dismiss an employee, to deny access to any guidance program or occupational training or retraining or to subject an employee to any other detriment because of that employees political views or their involvement with the union (including representing or advancing the views, claims or interests of members’ of that union) (Equal Opportunity Act 2010 (Vic) ss 4, 6, 7 and 18).  Further, in Victoria, people have a rights to freedom of thought, conscience, belief, expression, association (including a right to join a trade union) and to participate in the public life of Victoria (Charter of Human Rights and Responsibilities Act 2006 (Vic) (ss 14-16, 18)).  One can imagine that Order 3 could be used in ways that contravene those rights, but it’s not axiomatic that it must or will be.

Further rights are not absolute, so the rights to freedom from forced work (s 11), freedom of movement (s 12) and freedom of association (s 16) would not be sufficient to stop an employer dismissing an employee who decided to ‘hang out’ with his or friends rather than go to work.     How the various rights and obligations of an employee may be lawfully balanced is a matter for lawyers expert in this field (not me) and would depend on the particular facts.

So, in short I can’t answer whether or not this order breaches any rights, either in the abstract or if and when it is applied.  The UFU are seeking legal advice and presumably they will obtain that from lawyers with a practice in industrial law rather than emergency response law.   It will be very interesting to see what that advice is, if and when the UFU make it public.

A interesting issue from Victoria relating to the SES but will have application for all emergency services.

I wonder if you could help with a question I have as I have a daughter who has recently joined the SES.

The Victorian State Emergency Service does not allow ‘p’ platers to drive vehicles under emergency status, i.e. under lights and sirens.

My question is, does a probationary driver , driving a State Emergency Vehicle have to display ‘p’ plates,

Our regional manager has stated that a p’ plater does not have to display p plates when driving an emergency vehicle under normal conditions.

They state that a police officer threatened to fine a driver for displaying his ‘p’ plates on an emergency vehicle.

I have asked a Highway Patrol Officer and he tells me that probationary drivers must always display ‘p’ plates regardless of the vehicle they are driving.

What’s interesting is the conflicting advice.  One might expect the police to be right but it appears that is not the case.  The relevant rules are not the Road Safety Road Rules 2009 (Vic) as those rules do not deal with licensing, in Victoria the relevant rules are the Road Safety (Drivers) Regulations 2009 (Vic) but the answer is in fact clear and set out in regulation 55.

Regulation 55(1) says “A person who holds a probationary driver licence … must not drive a motor vehicle … on a highway unless…” they are displaying a “P” plate to the front and rear of the vehicle (except that a motorcycle only needs a rear facing “P” plate).  The regulation goes on to say:

(3) Subregulation (1) does not apply to a person who is—

(a) a member of the police force 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.

So the answer is clear, a person driving an SES vehicle as part of their duties does not need to display a “P” plate.  The advice from the SES regional manager is correct; the advice from the Highway Patrol Officer is wrong.

Can you be fined for displaying a “P” plate?  That is not so clear; regulation 55(2) says “A person who does not hold a probationary driver licence …  must not drive a motor vehicle on a highway if there is displayed facing out from the front or rear of the vehicle a plate that is, or that resembles, a P plate”.  The maximum penalty is 3 penalty units.  (A penalty unit is $147.61 (http://www.ocpc.vic.gov.au/CA2572B3001B894B/pages/faqs-penalty-and-fee-units) so the maximum penalty is a fine of $442.83).

BUT the regulation does not say that it is an offence to display a “P” plate when not required to do so by subsection (1); rather it says it is an offence to display a “P” plate if the driver does not hold a probationary licence.  If the driver does hold a probationary licence, and they are driving an SES vehicle or ambulance, or they are a member of the CFA driving a vehicle in the course of firefighting, then they are not required to display a “P” plate but the regulations do not say they commit an offence if they do.  So ‘the police officer [who] threatened to fine a driver for displaying his ‘p’ plates on an emergency vehicle’ was also wrong.

There is another restriction on P1 drivers, that is a P1 driver must not drive a vehicle with more than one ‘peer passenger’ (Regulation 61(1)).  A ‘peer passenger’ is a person aged more than 16 and less than 22 (Regulation 61(4)).  One can imagine that an SES vehicle may have more than one person who meets that criteria.  Again, however the rule does not apply to a member of the police force or a person driving an emergency vehicle in the course of his or her duties (Regulation 61(2)).  That is a different test; regulation 55(3) referred to a person driving an ambulance or SES vehicle in the course of their duties whereas regulation 61(2) refers to an ‘emergency vehicle’.  The definition of ‘emergency vehicle’ is the same as the definition in the Road Safety Road Rules 2009 (Vic) (see Road Safety (Drivers) Regulations 2009 (Vic) reg 61(4) and Road Safety Road Rules 2009 (Vic) rule 4 and Dictionary).   An ‘emergency vehicle’ includes any vehicle that is under the control of the SES (or other emergency services).   Accordingly this exception also applies to the driver of a Victoria SES vehicle.  (That’s quite different to the definition in say New South Wales that defines an emergency vehicle as a vehicle being operated by an emergency worker when responding to an emergency.  If that definition applied in Victoria then a P plate driver could not have more than one young passenger on routine tasks but could in an emergency).

In summary, in Victoria, the holder of a provisional drivers licence does not need to display “P” plates and may carry more than one ‘peer passenger’ when driving an SES vehicle in the course of their SES duties.

A Director of a Victorian medical centre wrote:

Ambulance Victoria  ( AV ) advised private registered Day Procedure Centres and Private Hospitals in Victoria by letter on about 26 June 2014 that from 1st July 2014 there would be significant changes in billing guidelines for AV patient transport services in Vic. Specifically, such PRIVATE HEALTH CARE facilities would

“ …. become responsible for the costs associated with all emergency and non-emergency transports from a private healthcare facility for a Community Service Obligation patient. …..  “

CSO patients are, briefly, pensioners who have always been said in all relevant discussions and literature to have an entitlement to “free” ambulance transportation when clinically justifiable, under government funded CSO arrangements.

How can it be Legal for a Victorian Department of Health Minister suddenly to make private entities become responsible for the costs of such government funded CSO services to patients, with no negotiation or contract?

Is this a question within your area of interest? It certainly is in the interest of many pensioner patients in Victoria, who have had a portion of their “entitlements” reduced without notification.

The power of the Ambulance Service to charge fees is set out in the Ambulance Services Act 1986 (Vic) ss 10 and 16.  Pursuant to s 16

… An ambulance service may—

(a) charge reasonable fees for services rendered;

(b) operate or participate in a subscriber scheme;

(c) provide services to members of, or contributors to, a health fund under an agreement with a health fund;

The Secretary of the Department of Health “… may by instrument, give directions to an ambulance service relating to— (a) the fees that the service may charge …” (s 10(5)).  An ambulance service must comply with the Secretary’s direction (s 10(6)).

The Secretary has issued such a direction – see Patient transport charging guidelines for Victoria.  The current guidelines took effect on 1 July 2014.  The guidelines on Table 3 say that for ‘Private patients in private healthcare facilities’ the sending private healthcare facility is responsible for ambulance charges.

The Government of Victoria (and all the state governments) appear to have imposed community service obligations upon the state ambulance services to provide free transport for pensioners and others, but I can’t see where there is any legal obligation to do so.  There does not appear to be a COAG agreement requiring states to provide ambulance as a community service obligation (as there is for Pharmacy Wholesalers), there is no mention of ambulance services for pensioners and others in the National Healthcare Agreement 2012 nor do these community service obligations get a mention in either the Health Insurance Act 1973 (Cth) or the National Health Act 1953 (Cth) or their regulations.

Even so:

There has been a long tradition in Australia on governments imposing special requirements on Government Trading Enterprises (GTEs) which extend beyond the commercial operations of the business.  Governments have often required GTEs to … provide concessions to particular users… These requirements are usually termed ‘community service obligations (CSOs).’

(Steering Committee on National Performance Monitoring of Government Trading Enterprises, Community Service Obligations: Some Definitional, costing and funding issues (Canberra, 1994), p iii; see also Industry Commission, Community Service Obligations: Policies and Practices of Australian Governments (Canberra, 1977)).

The Commonwealth does not claim to impose an obligation on the states to provide ambulance services.  The Department of Human Services says:

In addition to Medicare services, concession cards can give you, your partner and dependants other concessions from state and local government authorities and private businesses.

Contact the state government health agency in your state for information on concessions available in your state or territory.

If we look to the Victorian Department of Human Services, they say ‘Concession cardholders are eligible for free ambulance and air ambulance travel anywhere in Australia in an emergency or on the recommendation of a doctor’ (http://www.dhs.vic.gov.au/for-individuals/financial-support/concessions/health/ambulance-travel).  All that persuades me that whatever level of agreement there is between the states there is no binding legal obligation to provide free ambulance service.

So where does that leave us?  The Secretary can set ambulance fees which ambulance services must comply with. That has been done and the Secretary has determined that the sending health service, on the basis presumably that it is that service that is arranging the ambulance and requesting the service, is liable to pay the fees.   How is that legal?  It’s because s 10 of the Ambulance Services Act 1986 (Vic) says that the determination can be made and I can’t find any other law that would say this obligation is improper or illegal.

It is however, problematic to make a third party liable, if I call an ambulance for someone I’m not liable to pay the fee just because I rang the ambulance, so why is the private facility?  This could turn on many things all based in contract law – what’s the contract between the provider and the patient? What services does the provider agree to pay for? What’s the relevant law regulating the private health provider? Who is requesting the service?  These are all issues beyond ‘emergency law’ and any provider who wanted to question them would need to obtain independent legal advice.