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Discussion on the law that applies to or affects Australia's emergency services and emergency management, by Michael Eburn, PhD and Barrister.
Updated: 12 hours 10 min ago

Colliding with an ambulance is just another car accident

15 September, 2019 - 12:56

A correspondent has sent me a link to a video https://www.facebook.com/1610342069289340/posts/2443313849325487/ and said ‘This is an interesting one… Where do you think the young tradie stands in a situation like this?’

The gist of the matter is that the man the subject of the story was involved in a collision when he turned right in front of responding Queensland ambulance and was involved in a collision.  The ambulance had its warning lights on but there may be some dispute about whether the siren was on.  The young man was driving a vehicle that did not have comprehensive insurance and is concerned that the insurer for the ambulance ‘is not helping’ him.  A passenger in the vehicle has received advice that the CTP (compulsory third party) insurer has accepted liability with respect to his personal injuries.

This is in fact standard for any car accident. If you drive a motor vehicle without comprehensive insurance, you are accepting the risk that your car may be damaged, and you have to wear that cost.  You cannot guarantee that every accident will be due to someone else’s fault, that you will be able to identify that person, that they will be able to pay the damages and that they will do so when you first ask.    Legal Aid Queensland set out what to do if you are in a motor accident and want to claim the costs of damage from another driver – see ‘If you want to make a claim against the other driver’.   That’s the process whether the other car is a private car or an ambulance.

The role of the ambulance insurer is to protect their own interest and that of their insured. They do not represent the other party so the ‘other party’ cannot expect them to help. What the insurance company has to do is decide if their driver is legally at fault. That is complicated in a situation like this by the obligation on other road users to give way to emergency ambulances (Transport Operations (Road Use Management–Road Rules) Regulation 2009 (Qld) rr 78 and 79) and the obligation on the driver of the ambulance to drive with reasonable care.   Courts can apportion liability so there can be much argument, and hence negotiation, on how much responsibility lies with each driver.  If that cannot be negotiated, then a court can decide.

So where does ‘the young tradie stand in a situation like this…’?  Just where he would stand in any accident.  His vehicle was not comprehensively insured so he has to carry the cost unless he can demonstrate that the other driver was negligent.  Demonstrating negligence does not mean convincing channel 9 (who are no doubt only interested because there was video and it was an ambulance) but convincing the other side’s insurer, or a court, that the other driver was at fault.  But they won’t be convinced just because the ‘young tradie’ says so, they will have to speak to their driver and also consider what defences are available to them at law.   We also have no idea what steps have been taken to get quotes and otherwise make a claim.  There’s nothing unique about the video and the story, it just another car accident.  I cannot imagine channel 9 running a story – person has car accident and it takes time to settle claim for property damage – but that’s all this story is saying.

As for the CTP insurer accepting liability, that is irrelevant. It’s another insurer (even if owned by the same parent company) making decisions under other law, in this case the Motor Accident Insurance Act 1994 (Qld).  The decision by the CTP insurer in one case has no bearing on the decision of the comprehensive insurer in the claim for property damage.

 

 

 

 

Categories: Researchers

Standards for first aid and AED signs

14 September, 2019 - 21:56

Today’s correspondent is writing

… in my role as first aid trainer in the ACT and NSW. I’ve recently come across a peculiar question about AED signage. The First Aid in the Workplace Code of Practice which applies to NSW and ACT mentions Australian Standard 1319 in regard to Emergency Signage. The question that arose was in regard to the AED signs that sometimes appear in red&white rather than white&green.

The questions were – is a standard mandated and would there be fines for not adhering to this standard?

I was given two photos to show the difference.

I was also provided with a copy of Australian Standard AS 1319—1994 Safety signs for the occupational environment (published 18 April 1994).    The standard defines emergency information signs as ‘Signs indicating the location of, or directions to, emergency related facilities such as exits, safety equipment or first aid facilities’. The standard goes on to say (at [2.3.5]) ‘Emergency information signs shall comprise a white symbol or worded legend, or both, on a green rectangular sign with white enclosure’.  Table B4 has some emergency information signs but they do not include an AED sign.   The sign for ‘first aid’ is shown in Table B4 as:

It would appear (without going into details of font and sign size etc) that the sign shown in the photo provided as a ‘Vivomed AED wall sign’ complies with the standard, the other one does not.

The SafeWork NSW Code of Practice First Aid in the Workplace (July 2015) says (at [3.2]) ‘Displaying well-recognised, standardised first aid signs will assist in easily locating first aid equipment and facilities. Further information on the design and use of signs is available in AS 1319 – Safety Signs for the Occupational Environment’.  It refers readers to the standard but does not say that signs must comply with that standard.

Even if it did, compliance with the Code of Practice is not mandatory.  A code may be admitted into evidence in any prosecution for breach of work health and safety duties, and a court may have regard to the Code when considering what is known about a risk and what constitutes a reasonable response to that risk (Work Health and Safety Act 2011 (NSW) s 275).   In context that means that a court could rely on the code to conclude that there is knowledge that failure to use signs can lead to difficulty in locating emergency equipment and a reasonable response to that risk is to display ‘well-recognised, standardised first aid signs’ but that does not mean that another response is not also a reasonable response to the risk.  In any prosecution it would be up to the Crown to prove that the use of the non-standard black, red and white sign exposed workers or others to an increased risk to health and safety.

Conclusion

There would be no fines for using the non-standard sign unless the Crown can prove that the use of that sign meant that workers or those at the work place were exposed to a risk to their health and safety by the use of the sign, eg that people would fail to recognise what the sign meant.  As noted, compliance with the Code of Practice and the Standard is not mandatory so whilst it would depend on all the circumstances, but I cannot imagine a WorkSafe inspector is going to be too concerned about the sign.  A prudent Person Conducting a Business or Undertaking (a PCBU) would no doubt prefer, and try to find, a sign that met the standard of being ‘green and white’ but if that was not available putting up the other sign would be better than no sign at all.

Categories: Researchers

Revisiting the role of police and paramedics when dealing with the mentally ill in NSW

14 September, 2019 - 21:28

I tell my students that if a person doesn’t understand what you wrote, it’s the fault of the writer not the reader.  A correspondent sent me a screen shot with this member update from Australian Paramedics Association (NSW) (‘APA (NSW)’).      

 When sending it my correspondent said:

Hey Michael. I believe you’ve been misinterpreted. You might want to contact APA and correct. I can see this advice causing some conflict on the road.

So the question is ‘if a police officer applies Section 22 [of the Mental Health Act 2007 (NSW)] and requests a Paramedic to transport the patient without the patient’s consent and without a police escort, should we [paramedics] transport the patient if after your assessment a Section 20 does not apply?’

APA(NSW) quote me as saying the answer is ‘no’ but my correspondent thinks I’ve been misinterpreted.  They cannot both be right so either the APA(NSW) or my correspondent has misinterpreted what I’ve written.  APA(NSW) link to one of my posts but because all I have is a screen shot I cannot follow the link, but I assume they are linking to the post NSW Police, paramedics and the mentally ill (May 15, 2018).

In that post I posited the question ‘If police detain a person under s 22, are NSW Ambulance Officers required to transport the person?’  I then said:

My view is that the answer to that question must be ‘no’.  Anyone can call an ambulance if they believe an ambulance is required, but it does not compel the paramedics to treat the person or to treat them for the injury that the caller has identified.  Consider police who find a person who appears to them to have a brain injury. Paramedics are called and determine that the person is intoxicated, does not require medical attention and can be safely left in the care of their friends.  The mere fact that police called them, or police suspect a brain injury, does not compel the paramedics to treat the person as if they have a brain injury.  Paramedics have to form their own view.

In other words, and with due respect to my correspondent, I do not think APA(NSW) have misinterpreted my position.  I’ll try to sum up my thoughts:

  1. Police can act under s 22 if the person appears to the police officer ‘to be mentally ill or mentally disturbed’ and the person has committed or is committing an offence, they have recently attempted to kill themselves or someone else or are attempting to cause harm to themselves or someone else.
  2. Paramedics can take action under s 20 if ‘the officer believes on reasonable grounds that the person appears to be mentally ill or mentally disturbed and that it would be beneficial to the person’s welfare to be dealt with in accordance with this Act.’
  3. The difference between s 22 and s 20 is the person only needs to ‘appear’ to the police officer to be mentally ill or mentally disturbed. Paramedics on the other hand need to believe the person is mentally ill or mentally disturbed and must have reasonable grounds for that belief. The more stringent conditions for paramedics is because they are health professionals.  In State of New South Wales v Talovic [2014] NSWCA 333 Emmett JA said (at [136]):

…that an ambulance officer, who necessarily has some medical training, is more equipped to make reasoned decisions in relation to mental health issues than someone (such as a police officer) with no such training. Having regard also to the practical realities of the execution of police officers’ functions, it is likely that the legislature intended that police officers should not need to meet the same standard as ambulance officers when forming a view as to whether a person appears to be mentally ill or mentally disturbed.

  1. If police called an ambulance because they ‘believed’ a person had broken their leg, that would not compel paramedics to treat that person for a broken leg if the paramedics formed the view that the person’s leg was not broken. Paramedics have to make their own clinical decisions before giving treatment.
  2. The priority of a paramedic’s diagnosis can also be seen in s 20(2) and s 21. If a paramedic forms the view that ‘there are serious concerns relating to the safety of the person or other persons if the person is taken to a mental health facility without the assistance of a police officer’ they may request police assistance (s 20(2)).  Where a police officer receives that request, he or she ‘must, if practicable: (a) apprehend and take or assist in taking the person the subject of the … request to a declared mental health facility’.  That is if a paramedic forms the view that s 20 applies and police assistance is required, police are obliged to provide that assistance, they are not required, or even permitted, to form their own view of whether s 22 applies. There is no similar provision if police request ambulance assistance.
Conclusion

I agree with the APA(NSW) that:

To protect your registration and avoid unlawfully detaining a patient [you should not] … detain a patient unless you believe you are lawfully authorised to do so under Section 20. If in doubt, escalate to Control and insist that the patient be transported under Police detention, not yours.

POSTSCRIPT

After writing this post my correspondent wrote to say:

My interpretation of the email refers to the last bit RE transporting patients under s22.

It is quite common for police to write a s22, fill it out and handover to paramedics. If paramedics agree with the need for transport (ie or appears mentally ill or disturbed) then they can transport to hosp under a section 22 without police attending. It’s my interpretation that s81 allows for this. It is also allowed for within the MOU.

What APA are saying is that they believe Police should not be able to complete a s22 and not come with paramedics to hospital, as they believe Paramedics have no authority to do so. Which in fact they do under s81.

I see this situation no different to the transport of a patient by paramedics who have been placed under a schedule 1 by a local GP in the community.

Maybe it’s the wording of the APA email… but this is the interpretation of Paramedics on road.

My response is that if that’s what APA are saying then I agree with them. First there is no such thing as ‘a s 22’ or ‘a s 20’ – see Again revisiting the Mental Health Act 2007 (NSW) s 20 (April 18, 2017).

If police want to act under s 22 they can. If they call an ambulance, then it is up to the paramedics to form a view under s 20. If they form the view that they are entitled to detain and transport the patient well and good. If they do not form that view, then they should not do so.  Paramedics are health professionals with a duty to act in their patient’s best interests, they are not the servants or agents of police. The fact that police have acted under s 22 does not relieve the paramedics of their duty to their patient to make their own assessment given that they, and not police, are trained health professionals.  If paramedics agree with the need for transport, then they are exercising their power under s 20.

I see this as quite different from transport of a patient who has been seen by a medical practitioner and who has issued a certificate under s 19.  Section 20 says an ambulance officer can detain a person if he or she holds the relevant belief; section 22 says a police officer can detain a person if he or she holds the relevant belief.  Section 19 (and s 81) says a person may be taken and detained by someone other than the medical practitioner if the medical practitioner holds the relevant belief.

If paramedics respond to a person who has been detained by police, then it is my view that paramedics must make their own assessment of the patient and make their own determination under s 20 and record what are the grounds that give rise to the belief required by s 20.  In an action for false imprisonment and/or unsatisfactory professional conduct I don’t think any tribunal would accept a paramedic saying ‘I did not have to consider those things as the police had formed the view they are required to form under s 22’.    If a paramedic does not make his or her own assessment he or she is not acting as a health professional, but as a taxi driver.

Categories: Researchers

Powers of fire wardens

11 September, 2019 - 15:56

Today’s correspondent has a

… question related to the evacuation of staff during an Emergency Evacuation (specifically a Fire Alarm).

I am a (voluntary) Floor Warden, but this morning during an evac, several staff chose not to leave – believing the staff kitchen toaster was the cause. And it was.

My question is this, do I have any authority in NSW to insist my colleagues to evacuate our workplace during an Emergency Evacuation (Fire Alarm)? The Fire Officer that visited our floor to check the cause asked my colleagues why they hadn’t evacuated. They naturally lied and said they had.

I’ve been told by Trainers that Wardens do have authority, and that any person that refuses to leave should be noted and reported to the Senior Warder and Fire Officers. Wardens are to relay the information on evacuation, noting any objectors/remainers.

Do you have anything on that specifically?

Fire wardens do not have any authority to insist that colleagues evacuate.  It’s true you should, if possible, note who has refused to evacuate and report that to the senior warden or fire brigade but that is not a power to insist on evacuation.

That information is important for the fire brigade who may have to make a decision to enter the building immediately to exercise their power under the Fire and Rescue NSW Act 1989  (NSW) s 19 and ‘cause to be removed any person, … the presence of whom … might, in the officer’s opinion, interfere with the work of any fire brigade’; or enter the building later to recover their bodies.

 

Categories: Researchers

Administering s 4 drug by remote Queensland private paramedic

10 September, 2019 - 16:37

Today’s question is:

…  a query relating to the legalities of operating on a poison permit in QLD.

I am currently a Registered Paramedic working in the QLD resource sector… Naturally in the remote and isolated environment that we work there is a significant distance for additional ALS resources to respond if required.

My question relates to cardiac arrest management. All training I have undertaken in regards to ALS arrest management includes the use of IV Amiodarone administration for refractory VT/VF.

However on my employers poison permit only P4 or Critical Care Paramedics are authorised to administer. As we have no CCP personnel on site or near the area I work in I was wondering why we have them available in our drug bags.

So I have asked my Medical Director the following.

– what would the consequence be for a paramedic (P3) to use Amiodarone when indicated according to best practice, acknowledging that a P3 Paramedic is not authorised according to the permit?

– what would the consequence be for a paramedic who chooses not to use the medication when indicated in the same scenario?

– Could a P3 Paramedic request authorisation via the Medical Director for administration if clinically indicated?

My medical director replied and simply stated that the answer is no because it’s illegal.

I’m wondering if you could elaborate on this? I am curious to see for example in a coroners enquiry, if the Paramedic had the medication, was able to administer & knows it may have an impact on patient outcome, chooses not to administer. Would he/she be liable.

I know of no coronial inquiry where these issues have arisen.  Coroners do not investigate most deaths and this sort of matter is unlikely to attract a coroner’s attention.  We can however look at the law.

According to the Poisons Standard (June 2019) Amiodarone is a schedule 4 drug.  In Queensland the relevant law is contained in the Health (Drugs and Poisons) Regulation 1996 (Qld).   Amiodarone is a ‘restricted drug’ (ie a schedule 4 drug) that can be used by a ‘paramedic 4’ employed by Queensland Ambulance (Health (Drugs and Poisons) Regulation 1996 (Qld) Appendix 2A and Appendix 9, definition of ‘ambulance officer’).

If an employer has an endorsement to allow them and their staff to possess, supply and administer a schedule 4 drug and the terms of that endorsement do not include a person with qualifications below ‘P4 or Critical Care Paramedics’ then the ‘other’ paramedic who administers the drug is someone who is not endorsed.

A person must not possess, obtain, dispense, issue, prescribe, purport to prescribe, sell or administer a restricted drug without an appropriate endorsement (Health (Drugs and Poisons) Regulation 1996 (Qld) r 146).  The maximum penalty in each case is 60 penalty units. (A penalty unit is currently $133.45 so the maximum fine is $8007.00).   An endorsement is not required to deliver a drug to a person for whom the drug has been prescribed or to assist a person to take a drug that has been prescribed for them (Health (Drugs and Poisons) Regulation 1996 (Qld) r 183).

That does indeed beg the question of ‘why we have them available in our drug bags’?  If my correspondent is in control of the drug bag but does not have an endorsement to be in possession of amiodarone then he or she commits an offence by being in possession of that drug.

In terms of the other questions the consequence of using the medication is that prima facie the paramedic commits an offence.  That does not mean that he or she would be charged or that a defence of necessity would not prevail where the illegal conduct (supply and administer the drug) was proportional to the risk to the patient and reasonable in the circumstances.  It may be illegal to possess a handgun but that doesn’t make it illegal to use it in self-defence.  But the starting point is that it is an offence to supply and administer amiodarone without an endorsement.

There could be an argument that a paramedic that did not use the drug when indicated and according to best practice could be guilty of ‘unsatisfactory professional performance’ that is ‘the knowledge, skill or judgment possessed, or care exercised by, the practitioner in the practice of the health profession in which the practitioner is registered is below the standard reasonably expected of a health practitioner of an equivalent level of training or experience’.  It would be very hard however to sustain an argument that the ‘standard reasonably expected’ including using drugs that the paramedic is not endorsed to use and where to do so would be an offence. Committing an offence is itself evidence of ‘unprofessional conduct’ and one can’t have it both ways – it cannot be both ‘unsatisfactory professional performance’ to not commit an offence and ‘unprofessional conduct’ to commit the same offence.  It follows that I don’t think there would be any consequences for a paramedic who chose not to use the medication in the scenario described but there may well be a defence if they did so choose – see also A duty to break the law? (July 25, 2019).

As for the medical director ‘A prescriber may give a dispenser an oral prescription for a restricted drug the prescriber is endorsed to prescribe’ (Health (Drugs and Poisons) Regulation 1996 (Qld) r 192(1)) but a paramedic is not authorised to dispense the drug nor is he or she authorised to be in possession of the drug.  It follows that the Medical Director cannot authorise the administration.  A doctor cannot override the law, the law says a person must not administer a restricted drug without endorsement.  See also Doctors delegating authority to carry drugs (August 20, 2014).

Conclusion

The medical director is right, it is illegal for a person to possess, obtain, dispense, issue, prescribe, purport to prescribe, sell or administer amiodarone without an endorsement issued under the Health (Drugs and Poisons) Regulation 1996 (Qld) Chapter 3, Part 2.

 

 

Categories: Researchers

Revisiting dual registration and skills use

10 September, 2019 - 12:27

Today’s correspondent holds:

… registration as Nurse and Paramedic. I am employed as an Intensive Care Paramedic for the ACT Ambulance Service as well as a Clinical Nurse Specialist for NSW Health and work in a rural Emergency Department.

Often when working as a Nurse for NSW Health we do not have a Doctor on duty but still accept emergency patients. I believe it’s only a matter of time before a patient presents at the Emergency Department requiring life-saving skills that I am authorised to provide only as an Intensive Care Paramedic but not as a nurse.

It’s clear to me where I stand morally on the issue but legally and from an employment point of view I’m not sure what would happen if I were to use skills I’m authorised to use in the pre-hospital setting in the in-hospital setting where I am not authorised to use them.

Any advice you could offer would be much appreciated.

I have addressed this type of issue before – with respect to volunteers see

See also

I cannot say what an employer would do, but we can consider some issues.  First let me assume we are talking lifesaving treatment and that my correspondent is in fact (not just in his or her imagination) competent.

I will for the sake of the argument assume that the treatment is intubation, that there is an intubation kit available, that intubation is part of the standard practice of an ACT ICP but not a nurse with general registration employed in a rural emergency department (and don’t feel the need to correct me if those assumptions are wrong, I’m not saying any of those propositions are true, just that I assume to be true in order to tell the story).  I will also assume that a patient presents who requires intubation and is likely to die without that intervention.

The first point of view is the hospital. The patient has come to the hospital for emergency assistance. The hospital has a duty to provide reasonable care to those that present at the emergency department (Barnett v Chelsea and Kensington Hospital Management Committee [1969] 1 QB 428).   What is reasonable depends on all the circumstances.  One of the circumstances in this case would be that there is an ACT paramedic competent to perform the life saving measure.   If the measure is performed and the patient survives it will be accolades all ‘round.  If the patient dies and it is revealed that there is a person there who could have helped and saved the patient’s life but did not, how could that be defensible?    If the hospital did know my correspondence was an ACT ICP but gave specific directions not to use particular skills when indicated how could that be justified?

If we consider my correspondent as a registered nurse then he or she has a duty as a registered health professional to act in the patient’s best interest.  It is in the patient’s best interests to be intubated.  How can it be justified not to give treatment that is required and that the nurse is competent to perform?

The position as a nurse is the same if we consider my correspondent as a paramedic.

But what of the argument that today ‘I was employed as a nurse?’  That may be true but my correspondent is a paramedic, whether he or she is walking across the road, visiting a person in hospital, or working as a nurse.  Today a paramedic is not a person employed as a paramedic but a person registered as a paramedic.  An off duty paramedic may have no duty to rescue a stranger (Stuart v Kirkland-Veenstra [2009] HCA 15) but the person in the scenario described is not a stranger but a person in a therapeutic relationship.

One would have to ask ‘If I was employed as a paramedic what would I do…?  IS there a good reason not do to it now?’  A good reason not to do it now may be that the procedure is not appropriate in this environment, that there is someone else at the hospital who is employed to do that task (eg an emergency doctor but in this case we’re told there is no doctor).  If the answer comes down to ‘it’s me or no-one and if it’s no-one this person dies’ it is my view that the comment ‘but today I’m employed as a nurse and nurses aren’t trained to do this’ is irrelevant if you are also a paramedic regardless of what someone has told you on the employment contract.  You are a paramedic, the patient needs your skills or they’re going to do, treat them.  It would (to quote from the Industrial Relations commission and reported in When is an Intensive Care Paramedic an Intensive Care Paramedic (August 26, 2019)) ‘be “absolutely appalling” if an ICP was prevented from using their life-saving skills merely because of their position title’.

If you save a patient’s life and your employer wants to take some adverse action, that would not doubt be a matter that would entertain the Industrial Relations Commission and your relevant union.  The job of the hospital, a nurse and a paramedic is to save a patient’s life if they can.

As I said in my earlier post Don’t let the patient die (June 11, 2019).

If you can save the patient’s life, do so.  If you’re afraid to do so for fear or repercussions from your employer or because you’re afraid you may step out of the shield of vicarious liability it’s time to stop and rethink whether you believe you are competent and to ask why are you working for this company [or hospital]?  If you aren’t willing to back yourself, then maybe it’s time for a new profession.

 

 

 

 

 

Categories: Researchers

““Please do not give me CPR”: ‘Do Not Resuscitate’ requests in retirement living”

9 September, 2019 - 12:36

‘“Please do not give me CPR”: ‘Do Not Resuscitate’ requests in retirement living‘ is an online article written by Anita Courtney and Melanie Tan from law firm Russell Kennedy.  You can read it by following the link, above.

Categories: Researchers

Contempt for court’s sentencing decision

1 September, 2019 - 15:58

Today’s correspondent asks an interesting question which I imagine is inspired by the decision from the Victorian Magistrate’s court and reported by the ABC as ‘Premier Daniel Andrews urges prosecutors to appeal after paramedic attacker avoids jailABC News (Online) 28 August 2019.  The question is:

Could you please advise on your blog how AHPRA may view a conviction for ‘Contempt of Court’ or similar. For example, if a registered practitioner were to stand up during sentencing and state, “What a load of rubbish – clearly you are no longer in touch with the expectations of the community as you have failed to apply what is seen as an appropriate sentence”, and then be found In Contempt, what are the possible outcomes?

First courts are unlikely to convict anyone of contempt in those circumstances.   The Judicial College of Victoria’s Victorian Criminal Proceedings Manual (20 March 2019) says at [8.5(9)-(11)]

9. A person who wilfully insults a judge in the course of proceedings in court does something which necessarily interferes, or tends to interfere, with the course of justice (Lewis v Ogden (1984) 153 CLR 682, 689; [1984] HCA 28).
10. The power to punish for contempt of court exists to vindicate the authority of the court, and not to vindicate the personal dignity of the judge. It should be used ‘sparingly and only in serious cases’ (Lewis v Ogden (1984) 153 CLR 682, 693; [1984] HCA 28).
11. A contempt against the judge must be a “wilful insult”. Conduct that is “discourteous, perhaps offensive and deserving of rebuke” may still fall short of this standard (Lewis v Ogden (1984) 153 CLR 682, 693; [1984] HCA 28).

I would not think the behaviour described would meet any of those tests however contempt may also be shown by ‘loud screaming’ or ‘Protests or demonstrations in court’ ([8.5(10)].  The most likely consequence from the conduct suggested by my correspondent is that the person would be evicted from the court.  But let as assume that punishment for contempt in the face of the court is the outcome.

A conviction of contempt would no doubt be treated as any other criminal conviction and will form part of the paramedics’ criminal history.  How criminal history is considered in applications for registration is set out in the Paramedicine Boards Registration Standard: Criminal history (17 May 2018).

Further the Health Practitioner Regulation National Law says (s 5):

unprofessional conduct“, of a registered health practitioner, means professional conduct that is of a lesser standard than that which might reasonably be expected of the health practitioner by the public or the practitioner’s professional peers, and includes— …

(c) 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

It would be up to a panel or the relevant tribunal appointed in each jurisdiction (not AHPRA) to determine if the defendant’s conduct affected ‘the practitioner’s suitability to continue to practise’ paramedicine.  If they determined that it did affect the practitioner’s suitability, then they could apply any of the range of penalties provided for in the Health Practitioner Regulation National Law.  What that penalty may be would depend on all the circumstances and cannot be predicted here.

The more interesting issue is ‘what is an appropriate sentence and what is the relevance of community expectations?’  I have previously given my views on mandatory sentencing:

I don’t suppose anything I say here is going to change anyone’s mind on the issue, nor do I suppose anyone is going to change mine.  Even so, imagine:

A community whose members believe that only doctors are capable of providing definitive care and that providing treatment at the road side is a waste of time.  They claim governments are letting down communities by not ensuring that all ambulances are staffed by at least one medical practitioner and if they are not paramedics should simply ‘load and go’ or be backed up by helicopter medical retrieval team.  Everytime there is a report of a patient dying on scene they campaign that again the government and the ambulance service is failing to provide the level of service the community wants, expects and is entitled to. 

When the Minister tries to explain the position he or she is told ‘”What a load of rubbish – clearly you are no longer in touch with the expectations of the community as you have failed to apply what is seen as an appropriate” level or resourcing.

Paramedics, and the Minister, may rightly say –

Helicopter and road based medical retrieval teams are a vital part of the overall emergency response, but they are not warranted in every case (equally an ICP or even an emergency paramedic is not required in every case).  What is required depends on many things including the patient’s condition, the distance to hospital, the level of care that can be provided on scene providing more rapid and effective care than would be achieved by trying to get the patient to a medical practitioner.  And further, paramedics are highly qualified, experienced practitioners who are trained and competent to assess all the clinical indicators, not just the ones reported on the news or imperfectly perceived by ‘the community’ and are able to form a view of what is the best treatment for this patient in these circumstances.  It is a professional judgement and paramedics are there to make that call with a greater knowledge both of the patient’s condition and what services and resources are available.  

That the community might expect a doctor at every emergency response does not mean they can or should get one or even that it is the best response to any particular patient. Should, in that scenario, the ambulance service change its practice to meet community expectation when that expectation is not only not supported by evidence, it is contradicted by evidence?

As for the evidence, Jarryd Bartle (‘We know that prison doesn’t work. So what are the alternatives?The Guardian (Online) 16 August 2019) says:

… decades of research have shown that prison is the least effective place to rehabilitate offenders. Studies have indicated that a stint in prison increases the likelihood that inmates will reoffend…

Young people are particularly ill-suited to prison – detention renders them more likely to graduate from low-level juvenile offenders to lifetime criminals via a stint in corrections.

Moreover, despite being seen as the ultimate “stick” to ensure social order, prison is not a deterrent for most forms of offending. Crime is largely impulsive or driven by complex external factors on decision-making – the notion that offenders are “rational agents” weighing up the cost and benefits of offending has been largely debunked…

Ultimately, a shift in thinking away from imprisonment as a default solution for criminals can free up the public purse for more effective preventive measures.

(And see other reports with similar conclusions cited in my earlier posts).

A person who does not go to goal but who must, instead, undergo compulsory treatment over 18 months which may include detention in a treatment facility and regular testing is someone who is subject to a deprivation of liberty. They are not ‘walking free’ and the chances of making the community safer is increased if they can be forced to deal with the issues that lead to their offending, including drug taking, and can be supervised for 18 months rather than locked in a cell for six.

With respect to mandatory sentencing in Victoria, no matter what the Premier has told the community, a prison sentence for assaulting a paramedic is not required if the court finds that the circumstances set out in s 10A of the Sentencing Act 1991 (Vic) exist (see s 10AA(4)).    The circumstances in s 10A(2) are:

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

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

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

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

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

Section 10A(2A) says ‘Subsection (2)(c)(i) does not apply to impaired mental functioning caused solely by self-induced intoxication’.  The ABC reports that the Magistrate found that the defendant’s ‘impaired mental state that day was not solely due to self-inflicted intoxication’ ie it was not ‘caused solely by self-induced intoxication’ (emphasis added).

I don’t know if gaol would have been, or will be seen to be, an appropriate penalty in this case. Further what is ‘is seen as an appropriate sentence’ by a particular observer and what is an appropriate sentence are not the same thing.  If all we have are media reports then we really know nothing about the offending or the offender, the Magistrate’s reasoning or whether the Magistrate correctly applied the law.  One can only make a sensible comment on the Magistrate’s reasoning if and when those reasons are published (but see Accessing a judge or magistrate’s reasons for decision (November 18, 2016)) or they are subject to review by the Court of Appeal.

Categories: Researchers

When is an Intensive Care Paramedic an Intensive Care Paramedic

26 August, 2019 - 17:37

Regular readers of this blog may think that sounds familiar to an earlier title- ‘Just Ridiculous’? When is a MICA Paramedic a MICA Paramedic? (March 28, 2013).  It is similar because the issue of restricting a paramedics scope of practice in order to save money has arisen again.  A correspondent has drawn my attention to a Member Update issued by the Australian Paramedics Association (NSW).  You can download the document here, or access it via the APA website.

The critical part of the update says:

Today in the Industrial Relations Commission (IRC), NSW Ambulance (NSWA) took a position that will place patients’ lives, Paramedic registration and Paramedic well-being at risk.

NSWA’s lawyer stated that Intensive Care Paramedics (ICPs) in P1 positions would have their specialist status removed from the Computer Aided Dispatch (CAD) system and equipment and medications removed from vehicles. They would not be responded as ICPs even if a patient required their intensive care skills. Why? So that NSWA will only have to pay them P1 rates instead of ICP rates.

The IRC Commissioner said it would be “absolutely appalling” if an ICP was prevented from using their life-saving skills merely because of their position title.

I’ve looked the Commission’s daily list and I can’t identify what the proceedings before the Commission were, but nothing turns on that.

I have, on many occasions, written on demands by employers or volunteer organisations that people should not use their skills in the best interests of a patient in order to save the employer money or out of some ill-founded fear of liability.   See for example

I hope I have been consistent.  If we are talking about life or death, if you have the skills to save someone you use them.  No-one is going to thank you for sticking to the organisations rules but letting the patient die.  To quote again from the Sheriff’s Inquiry into the death of Alison Hume [2011] FAI 51:

[The Incident Controller] in particular, considered that the rescue operation was “a success”. In his view he had adhered to the policies and procedures set out by Strathclyde Fire and Rescue Service. He had obtempered to the letter the instruction contained within the Memoranda from Strathclyde Fire and Rescue Service of the 14 and 27 March 2008. There had been no casualties other than the one to whom the Service was called upon to rescue.

Unfortunately this was not a successful operation: a woman died who had … survivable though life threatening injuries…

You can ‘obtemper’ (‘obey, comply with’) the company’s ‘scope of practice’ but no-one is going to think that the outcome was a success if the patient dies when they could have been saved.

What I have also said (I hope consistently) is that a person who is a doctor, or an ICP or has any other skill set cannot be expected to use that set if they do not have the equipment to hand.  An off-duty paramedic cannot be expected to treat a patient as he or she would if they had a fully stocked ambulance with them.  A paramedic, now a registered health professional, is expected to provide care to their patients in a way that ‘demonstrates the knowledge, skill or judgment possessed, or care… [at] the standard reasonably expected of a practitioner of an equivalent level of training or experience’ (to paraphrase the Health Practitioner Regulation National Law (NSW) s 139B).  What’s required depends on all the circumstances.

If an ICP is on an ambulance and responds to a life-threatening emergency, if the ambulance is not equipped with ‘equipment and medications’ then he or she cannot be expected to use that equipment and medication.  But that won’t mean that an ICP won’t have extra skills and knowledge compared to his or her partner who is not an ICP.  And the ICP cannot simply turn that knowledge and skills off.  They know what they know, and the patient gets the benefit of that knowledge and skill set even if the paramedic does not have the equipment to hand that he or she would want.   But whatever the person is called, and whatever they are paid, they remain an ICP.    And the patient, and therefore the ambulance service get the benefit of an ICP even though they are not paying for it.  For example if the crew were supported by an intensive care ambulance, the ‘deskilled’ ICP could and should still access the ‘equipment and medications’ on the intensive care ambulance if that is in the patient’s best interests.

I do not think a paramedic could be held guilty of ‘Unsatisfactory professional conduct’ for not using equipment that he or she does not have and has not been issued.  However professional registration should strengthen the arm of paramedics and APA to argue that paramedics should not be restrained from providing the best patient care that they can.

Further, it would be difficult to hold the ambulance service liable both because of difficulty in proving that had the ICP paramedic had the kit it would have made a difference and because the Civil Liability Act 2002 (NSW) s 42 says ‘the general allocation of … resources … is not open to challenge’.   It is up to NSW Ambulance to determine how much it spends on equipment that is restricted to intensive care ambulances so the fact that not every ambulance has an ICP drug kit is a matter for Ambulance to determine when allocating it’s budget.  Those sorts of decisions are generally not reviewable in a court.

I do however agree with the Commissioner – ‘it would be “absolutely appalling” if an ICP was prevented from using their life-saving skills merely because of their position title’ and because Ambulance did not want to pay their own staff what they are worth. Much better to celebrate that there are so many ICPs that they can be deployed in P1 positions thereby improving community service.

It will be interesting to see if the matter before the Commission goes onto final orders to better understand what the application was about and what the Commission ultimately rules.

Categories: Researchers

On the spot fines v court penalties

26 August, 2019 - 11:42

Today’s correspondent asks me to:

… make some sense of the following.

Section 100 of the Rural Fires Act ‘Offences’ says:

(1)  A person who, without lawful authority:

(a)  sets fire or causes fire to be set to the land or property of another person, the Crown or any public authority, or

(b)  being the owner or occupier of any land, permits a fire to escape from that land under such circumstances as to cause or be likely to cause injury or damage to the person, land or property of another person or the land or property of the Crown or a public authority,

is guilty of an offence.

Maximum penalty: 1,000 penalty units or imprisonment for 5 years, or both.

 The regulations state for section 100 (1 or 2)   $2200

There is a lot of difference between the two penalties one under the act would equate to $110000 whereas the other is a much lesser amount.

Is the Act the guidance in court action and the regulations for officers of department when levying fines?

The short answer is ‘yes; the Act [is] the guidance in court action and the regulations for officers of department when levying fines’ but there’s more to it than that.

The separation of powers

Fundamental to the Australian (and many if not most legal systems) is the idea of the separation of powers between the legislature (the Parliaments), the executive (the Ministers and various government departments) and the judicial (the courts) arms of government.   In simple terms the legislature writes the law, in this case the Rural Fires Act 1997 (NSW).  The executive arm of government, that is the Governor, the Minister for Police and Emergency Services and the Rural Fire Service have to put that law into effect that is they have to do the things the Act tells them to do, enforce the penalty provisions (along with police), put in place the systems to grant permits or permissions, operate the Rural Fire Service etc.  Because the parliament can’t foresee everything that needs to be done it has delegated to the Governor the power to make regulations to deal with various issues that need to be dealt with under the Act (Rural Fires Act 1997 (NSW) s 135).  Regulations are called ‘delegated legislation’ as they are a law, but they are not made by Parliament but by the person or agency delegated by Parliament to make those laws.  Regulations can only cover the subject matter authorised by the Act, must be consistent with the Act and can be set aside by Parliament if the Parliament so chooses.  The delegated legislation that is relevant here is the Rural Fires Regulation 2013 (NSW).

The judicial arm of government, the courts, get involved when there is a dispute.  When someone thinks a government department has not complied with the law for example it has failed to do something that the law says it must do, that it has issued or refused to issue a permit on irrelevant or improper grounds, that it has caused loss or damage that is not authorised by the law or, relevantly, where the department alleges that some person has committed a criminal offence.

Deciding whether or not someone is guilty of a crime and the punishment they are to receive is a role reserved exclusively to the courts.  Re Tracey; Ex parte Ryan [1989] HCA 12 Deane J said:

“The power to adjudge guilt of, or determine punishment for, breach of the law, the power to determine questions of excess of legislative or executive power and the power to decide controversies about existing rights and liabilities all fall within the concept of judicial power… Nor can the Executive itself exercise judicial power and act as prosecutor and judge to punish breach of law by executive fiat or decree. The guilt of the citizen of a criminal offence and the liability of the citizen under the law, either to a fellow citizen or to the State, can be conclusively determined only by a Ch III [of the Australian Constitution] court acting as such, that is to say, acting judicially.

(Having said that Parliaments can by executive order provide that a person is to be deprived of their liberty which is why the Australian government can lock people up in indefinite immigration detention – ‘the power is not punitive in nature, and does not involve an invalid attempt to confer on the Executive a power to punish people who, being in Australia, are subject to, and entitled to the protection of, the law’ (Al-Kateb v Godwin [2004] HCA 37, [4] Gleeson CJ).  A state government could pass a law ordering that you be locked up without judicial review (Kable v Director of Public Prosecutions (NSW) [1996] HCA 24, [9] (Brennan CJ) & [29] (Gummow J)) but that is not the same as imposing a punishment for a crime).

So how do infringement notices work?

Infringement notices (‘on the spot fines’) appear to be contrary to this rule because it looks like the executive (the police or some other authorised person) is determining guilt and imposing a punishment, but that is not the case.  Where an authorised officer issues an infringement notice, he or she is making an allegation of guilt.  The person who receives the notice may choose to pay the prescribed fine and that is the end of the matter or they may choose to challenge the allegation on the basis that they are ‘not guilty’.  In that case the matter will be heard in a magistrate’s court in its criminal jurisdiction with the burden on the prosecution to prove the case ‘beyond reasonable doubt’.  (For further discussion on infringement notices and why they are not a criminal conviction, see Traffic infringements and paramedic registration (October 10, 2018)).

Because infringement notices are administrative and not judicial, there is no discretion given to the enforcement officer.  He or she has a discretion to issue the notice, or not, but the penalty is fixed.  An officer cannot decide the value of the penalty, that is set out in law, and that is the long way around to my correspondent’s question.

The Rural Fires Act and Regulations

The Rural Fires Act 1997 (NSW) s 131 provides that penalty notices can be issued by authorised officers where the Regulations say that an offence is a penalty notice offence.  The fine to be imposed is the amount ‘prescribed’.  (Wherever the word ‘prescribed’ appears in an Act it means one has to look to the regulations to see what has been ‘prescribed’.)

The Rural Fires Regulation 2013 (NSW) r 48 and Schedule 2 sets out what are the penalty notice offences.  A breach of s 100(1) is a penalty notice offence. The prescribed penalty is $2200.

What that means is that if an authorised officer believes that a person has committed an offence contrary to s 100(1) that officer can issue a penalty notice that will impose a fine of $2200.  The officer can decide to issue the notice or not, but if he or she decides to issue the notice the fine is set.  The authorised officer cannot set a higher or lower fine, the fine is $2200.

If the matter is determined in a court, then the penalty notice provisions have no application.  The matter may end up in court if the person who receives a penalty notice elects to have the matter dealt with in court because he or she wants to argue that they are not guilty of the offence or they believe that the circumstances warrant a lesser penalty.  Equally it could be before a court if the authorised officer elects not to issue an infringement notice and instead proceeds by court attendance notice.  He or she may do that if they think the offending, or the offender’s history, is so serious that the fine of $2200 is not sufficient or they think a court may consider sending the person to gaol.

A magistrate who hears the matter and who is satisfied that the accused is guilty of the offence charged can impose any penalty provided for in the Crimes (Sentencing Procedure) Act 1999 (NSW) to the maximum of ‘1,000 penalty units or imprisonment for 5 years, or both.’  A penalty unit is $110 (Crimes (Sentencing Procedure) Act 1999 (NSW) s 17) so the maximum fine is $110,000.  A judge or magistrate has discretion that an authorised officer does not.

 Conclusion

The provisions in an Act that define a maximum penalty do provide guidance to a court by helping the court determine where in the scale of offences from most minor to most serious this offence fits.   Judges have other options too like good behaviour bonds, finding an offence proved but taking no action, community service etc.  The ‘maximum penalty’ is, as my correspondent says ‘guidance [for the judge or magistrate] in court action’.

The Rural Fires Regulation 2013 (NSW) r 48 and Schedule 2 provide that an authorised officer may issue a penalty notice and the value of that notice. They are only relevant to ‘officers of department when levying fines’ and set out what the fine is.  The authorising officer has no discretion as to the amount of the fine – issue a $2200 fine or don’t.

 

Categories: Researchers

Constitutions for SACFS brigades

24 August, 2019 - 22:54

Today’s correspondent is a volunteer with South Australia’s Country Fire Service (SACFS).  My correspondent says;

…we have our own brigade constitution and a few weeks before our AGM we asked for guidance over an issue. We were told no matter what is written in your brigade constitution it can and will be overridden by the SACFS  constitution…If this is the cause then what is the point of having a set of brigade rules that are in our constitution if it’s going to be over ruled by the CFS constitution.

I have answered a similar question with respect to the NSW RFS – see Constitutions for NSW RFS brigades (May 21, 2014).

A South Australian Country Fire Service (SACFS) brigade is an ‘SACFS organisation’ (s 3). SACFS brigades are established by the Chief Officer (Fire and Emergency Services Act 2005 (SA) s 68(1)(a)) although they may be formed on the application of ‘a group of interested persons’ (Fire and Emergency Services Regulations 2005 (SA) r 6).   An application should, amongst other things, ‘propose a constitution for the brigade’ (r 6(3)(f)).   Further (s 68):

(2)        An SACFS organisation will have a constitution that accords with any requirements determined by the Chief Officer.

(3)         The constitution of an SACFS organisation may be amended, with the approval of the Chief Officer, in the manner set out in the constitution.

(4)         An SACFS organisation—

(a)         has the functions and powers prescribed by this Act or the regulations or set out in its constitution; and

(b)         has such other functions or powers as may be assigned to it by the Chief Officer.

(5)         An SACFS organisation must—

(a)         maintain such records as may be prescribed, specified by its constitution, or required by the Chief Officer;…

There does not appear to be any clear indication of what matters are required to be dealt with in the brigade’s constitution though there are some issues identified in the Fire and Emergency Services Regulations 2005 (SA).

  • Brigades have to select members to fill certain roles. ‘Nominations of candidates for brigade elections will be called by the administrative co-ordinator of the brigade in accordance with the brigade’s constitution’ (r 11(4)). Apart from that most of the details as to who is eligible to stand for election for the positions and the way the election is to be conducted is set out in regulation 11.
  • A member who ‘contravenes or fails to comply with … a provision of the SACFS organisation’s constitution’ may be subject to disciplinary proceedings (r 22) but the manner in which those proceedings are to be conducted is set out in the regulation.
  • A brigade’s Administrative Co-Ordinator is ‘to give notice of meetings of the brigade in accordance with the constitution of the brigade’ (Fire and Emergency Services Regulations 2005 (SA) Schedule 4).

A brigade’s constitution is subject to the Act and Regulations. As noted, any constitution must meet the requirements set out by the Chief Officer (s 11(2)).  In that case it will be correct that ‘no matter what is written in your brigade constitution’ it will be overridden by any requirements imposed by the Chief Officer, ie a brigade’s constitution cannot be inconsistent with the Acts, Regulations or the directions of the Chief officer.  Further, regardless of what is in a brigade constitution, ‘The Chief Officer of SACFS is responsible for the management and administration of SACFS’ which includes the brigades (s 58).

When writing about the NSW RFS I said ‘it’s not at all clear why brigades need constitutions, rather than rules or standing orders…’ and that would also be my view with respect to the CFS.  Brigades are established by the Chief Officer who is responsible for the ‘management and administration’ of the CFS.   Any brigade constitution must be subject to the direction and requirements of the Chief and there is little explanation of what is required to be in the constitution.  The only matters that get mentioned are the process of nominations (but not the process of election) for various offices and details of when the brigade is to meet.

Constitutions for brigades is a throw back to the days when ‘Firefighting was left to local residents who would band together to fight fires as they arose, without any formal organisation or authority to set back burns’ (Country Fire Service, History of the Country Fire Service (undated)). Under the Country Fires Act 1989 (SA) s 12 it was the Board that determined the Brigades’ constitution which makes it sound much more akin to standing orders rather than a ‘constitution’.

With respect to the NSW RFS

If anyone reads this and goes back to look at that earlier post on the NSW RFS see Constitutions for NSW RFS brigades (May 21, 2014) do be aware of the age of that post and in some respects it is out of date.  Today all brigades of the RFS are established by the Commissioner not a local authority (see RFS Service Standard 2.1.1 Formation and Disbandment of Brigades and Groups of Brigades, [1.2]).  Further RFS Service Standard 2.1.2 Brigade Constitution, issued 21 December 2017 now sets out the terms of the Constitution of any RFS Brigade. That post has to be read subject to those updates.

Conclusion

To return to the question. I was asked:

We were told no matter what is written in your brigade constitution it can and will be overridden by the SACFS  constitution…If this is the cause then what is the point of having a set of brigade rules that are in our constitution if it’s going to be over ruled by the CFS constitution.

I think there is a misnomer there.  There is not a SACFS Constitution per se.  The CFS is constituted by the Fire and Emergency Services Act 2005 (SA) s 58. There is no constitution per se or, if there is, it is the Act.  It is certainly the case that ‘no matter what is written in your brigade constitution’ it cannot be inconsistent with the Act or Regulations.  It also has to meet any requirements published by Chief Officer (s 11(2)).   Within that space a brigade may have a constitution to provide for calls for nominations, meetings, and record keeping and other things about how that brigade is to operate.

It seems to me calling the Brigade’s operating rules a constitution seems inappropriate. These documents do not ‘constitute’ the Brigade (either in South Australia or New South Wales).   In SA the brigade is established by the Chief Officer and is subject to the Act and any requirements published by the Chief Officer.  The purpose of the Constitution is to set local procedures within the ‘gaps’ left by the Act and the Chief Officer’s requirements.

 

 

 

 

 

Categories: Researchers

Firefighter joining a class action

24 August, 2019 - 18:45

Today’s correspondent asks this hypothetical question;

Could a firefighter join a class action against an insurance company for emotional distress caused in fighting said fire at the centre of the class action?

The Carwoola Fire being the case in point.

The answer is yes, but with some limitations.  I have previously discussed how there is no ‘fireman’s rule’ in Australia and that injured rescuers can sue those that negligently cause the event that leads to their injuries; see:

It follows that if someone negligently started a bushfire and a firefighter was injured by that fire then he or she could sue the defendant (or in the case of the Carwoola fire, the insurer – see Bushfire class action continues even though defendant is in liquidation (August 18, 2019)).

The limitations that I imagine depend on the nature of the class action.  A class action is where a representative plaintiff brings the action on behalf of the class of people affected by the event.  In a bushfire the class of people may be those that suffer loss of property, or physical or psychiatric injury, or economic losses or some combination of those.  The idea is that if the court can determine for one plaintiff whether, say, the defendant was negligent then that resolves the issue for all the other plaintiffs.

The question that a firefighter would need to consider before joining a class action (as anyone does) is whether he or she is really a member of the class as defined.    A firefighter may have trouble fro example putting their PTSD down to one event so the issues of liability may not be the same and that may mean they are better off bringing their own action rather than joining the class action.  That is however true for anyone who is thinking of joining a class action.

Conclusion

A firefighter can sue a person that negligently causes the fire that in turn causes their injuries. There is nothing new in that.  It follows that if they are a member of the class as defined in a class action, a firefighter could join that class action regardless of whether the defendant is the actual person or entity that caused the fire or as in the case of the Carwoola class action, an insurance company that has been substituted for a defendant in liquidation.

Categories: Researchers

Asking for a DNR order

24 August, 2019 - 18:28

Today’s correspondent asks:

How do you go about getting a DNR order from a doctor ?…..it appears to still be a very grey area.  I am not sick, nor do i have any impending health issues.

My simple answer to ‘how do I …?’ is ‘you complete the prescribed form and pay the prescribed fee (if there is one)’.   In many states there is a form and procedure set out in the legislation – for example the Medical Treatment Planning and Decisions Act 2016 (Vic) sets out details of who can give an advanced care directive and in what form and how it is to be interpreted.

However as I’ve said before, the common law allows anyone to refuse treatment and that need only be communicated in any way that is effective (see for example Medical Treatment Planning and Decisions Act 2016 (Vic) s 10 ‘Other rights to refuse medical treatment not affected’).

Treating doctors can also make a DNR order when in their opinion (made in accordance with appropriate medical practice which requires taking into account the patient’s wishes and consulting with other professionals, not just on a whim) that further resuscitation would not advance the patient’s interests (see Airedale NHS Trust v Bland [1993] AC 789; see also for example Consent To Medical Treatment and Palliative Care Act 1995 (SA) s 4B ‘Consent not required for withdrawal etc of medical treatment’).   A doctor is only obligated to provide treatment that is in the patient’s best interest and warranted by their condition.  The fact that a person wants an antibiotic for a viral infection not only does not compel a doctor to prescribe the antibiotic, he or she should not make the prescription as it is not warranted.  Equally if resuscitation (whatever that means in the context) is not warranted by the patient’s condition because it will be futile or over-burdensome, then the treating medical team can refuse to provide that treatment.

The first step to ‘getting a DNR order from a doctor’ is to talk to the doctor.

Categories: Researchers

NSW SES and councils

24 August, 2019 - 18:00

Today’s correspondent asks if I

…can find somewhere in the legislation that requires the local Council to provide a facility for the local SES?

Another interesting question is, if not required under legislation to provide a facility, can a local Council charge a lease fee to the NSW SES for the facility it uses/occupies?

The obligations of local governments are set out in the State Emergency Service Act 1989 (NSW).  Section 17 says (emphasis added):

(1)  The Commissioner may, on the recommendation of the council of a local government area, appoint one or more persons as a local commander for the area…

(5)  The council of a local government area must, within 3 months of the appointment of a local commander for the area, provide (free of charge) suitable training facilities and storage and office accommodation to enable the local commander to exercise his or her functions.

(6)  Any such facilities and accommodation are to be of a standard approved by the Commissioner.

The local commander is the ‘commander of [all] SES units in a local government area…’ (s 3).  Where there is only one SES unit within a local government area, the unit commander is also the local commander (s 17A(3)).  Section 17(5) makes it clear that council cannot charge a fee for the premises provided under s 17.

Categories: Researchers

Questions of governance for St John (WA)

21 August, 2019 - 14:48

A volunteer with St John WA asks a question that I cannot answer, but I can make some comments.  The question is:

Most sub centres are just about to or have had their AGM’s. The sub centre I am at is operated by volunteers only, with an elected committee and one CP who has no voting rights. I asked for a copy of the constitution before our AGM and none is available. There is no copy on St John intranet. All sub centres appear to have access to “sub centre guidelines” but these are very vague and often ask more questions than answers. I was of the opinion that all “NFP Inc” bodies had to have a constitution for all members available upon request. I am sure in WA, St. John would have their own constitution and not operate under model rules. But either way we should know or have access to them. I have made inquiries into this but the organization is growing and currently we have many people in acting positions who appear to not know and have little to no knowledge on this topic. Myself included. It would be appreciated if some light could be shed on our obligations in holding AGM’s and meetings.

This is a really difficult question to answer as I simply don’t have enough detail, the question has to go back to St John (WA), but here are my thoughts given the lack of detail.

The St John Ambulance Australia (WA) 2017/2018 Annual Report says (p. 5):

St John Ambulance Western Australia Ltd is a company limited by guarantee. We are accountable under the Corporations Act 2001 and regulated by the Australian Securities and Investment Commission and the Australian Charities and Not-for-profits Commission.

A company is a legal entity that can sue and be sued.   There is one legal entity, St John Ambulance Western Australia Ltd.  A copy of the Constitution of St John Ambulance Western Australia, adopted on 22 October 2012 is available via the Australian Charities and Not-for-Profits Commission website. St John Ambulance Western Australia Limited is the name by which ‘The Commandery in Western Australia of The Most Venerable Order of the Hospital of Saint John of Jerusalem’ is to be known (cl 8).  Clause 37 says:

The State Board will be responsible for, and must set policy as to all activities to be undertaken in pursuit of the objectives and purposes of Commandery, and manage exclusively all of the business and charitable operations and affairs of the Commandery. Wherever this Constitution requires the Commandery to do anything which is not done by Commandery Chapter,the State Board is responsible to do it.

With respect to sub-centres the Constitution says (cl 1) ‘St. John Sub-Centre means a separate body formed by the Commandery referred to in Article 46.1’.  Article 46.1 says:

The Commandery has from time to time established, and may in future from time to time, in various parts of the State, establish, regulate, manage or dissolve St. John Sub-centres, First Aid Volunteer groups, or bodies to undertake other activities, and has or will recruit and engage volunteers and full and part time employees to staff those activities. For clarity, it is stated that the bodies so formed are not corporately, or legally part of Commandery and the persons so recruited or engaged are not by virtue of that recruitment or engagement Commandery Members.

I fail to understand what art 46.1 says at all.  If they are not ‘corporately, or legally part of Commandery’ what are they?  If the commandary is employing the staff members there must be a legal relationship with the commandery even if the volunteers and staff are not ‘members’ of the Commandery (cl 17).  A person can be an employee of a company without being a member of the company (an employee of BHP does not get to vote at the AGM, only a shareholder does).  The fact that a person who volunteers or is employed by St John is not a member of the Commandery makes sense, but to say that the sub-centres are not ‘corporately, or legally part of Commandery’ at least to me does not.

It could only make sense if the sub-centres were separate legal entities that St John funded at an arms length eg by the payment of grants, but that is not the case.  The St John website says (emphasis added):

St John Ambulance sub centres are responsible for the delivery of ambulance services in their community.

There are about 100 sub centre committees that manage operations on behalf of St John Ambulance Western Australia at full volunteer-run locations. In addition, there are 15 country sub centres with a mix of Volunteer Ambulance Officers and Career Paramedics working side-by-side.

There is nothing to suggest the sub-centres are legal entities.  I doubt that a sub centre can sue or be sued in its own name.  The 2017/18 Annual Report, at p. 9 lists statistics relating to the combined sub-centres – their assets, the number of paid and volunteers staff, the number of patients treated etc – as part of the work of St John.   The sub-centres are listed as part of St John’s ‘159 regional locations’ (p. 27). Note 28 to the Accounts says ‘The following sub centre locations and support funds have been aggregated with the metropolitan operations in the aggregated financial statements’.  If the accounts have been aggregated the sub centres must be ‘corporately, or legally part of Commandery’.  I am not a corporate lawyer and perhaps a corporate lawyer can make sense of it, but to me cl 46.1 makes no sense.

If they are not a legal entity in their own right, and they are established by the Commandery, then the sub-centres must be legally part of the company that is the Commandery (despite cl 46.1). If it is correct then how they are structured, what meetings they need to call and what they can do all depend on how the company (St John Ambulance Western Australia Ltd) has set them up and what rules the company has given them in order to operate.

That sort of detail is not in the constitution nor would it be expected – no company constitution is going to define how the organisation is managed internally, that is a matter for the executive and the Board (cl 37).  It may be that all there is are ‘sub centre guidelines’.

Conclusion

What little I can say is what is required of the sub-centre Committees is a matter for St John Ambulance Western Australia Ltd to determine.  If the sub-centres don’t know what’s expected of them that must be a concern about appropriate governance and management.  I have no idea what cl 46.1 of the Constitution means.  It is, in my view, contradictory to say both

The Commandery has from time to time established, and may in future from time to time, in various parts of the State, establish, regulate, manage or dissolve St. John Sub-centres, First Aid Volunteer groups, or bodies to undertake other activities,

and

… the bodies so formed are not corporately, or legally part of Commandery …

If they ‘are not corporately, or legally part of Commandery’ then I have no idea what they are.

Categories: Researchers

Disclosing official ‘secrets’ in WA

21 August, 2019 - 11:08

A correspondent has drawn this news story to my attention – Evan Morgan Grahame ’Triple-zero call-taker charged with disclosing official secrets in alleged tow truck rortABC News (Online) 20 August 2019.

My correspondent says:

I’d be interested to hear your thoughts on this article:

Specifically the charges of ‘disclosing Official Secrets’ component related to the accused charges. While probably a clear breach of employment contract (and clearly immoral), I don’t know enough about the law to know if a private company’s data is regarded an official secret? But I’d be interested to hear your thoughts.

The story, in summary, says:

A St John Ambulance triple-zero call-taker has been charged after allegedly relaying details of traffic crashes to people in the towing industry…

[Police] Superintendent Darren Seivwright told ABC Radio Perth the woman allegedly sourced the information from a secure police database and received payment for it…

“All of the information that we hold here at WA Police has the personal information of everybody in Western Australia on it, and it’s therefore considered to be an official secret,” he said.

“The allegation is that one of our employees used that information to gain a personal benefit.​”

The immediate question arising from the report is did she work for St John Ambulance or WA Police?  Other versions of the story confirm that she worked for St John.  An article in the Guardian Express which also quotes Superintendent Seivwright says:

‘the arrests were linked to the January arrest of a 32-year-old woman, who was employed at the Police Assistance Centre and was paid for tip offs’.

Superintendent Darren Seivwright said the link between all the people charged in the Internal Affairs Unit investigation, believed to be six altogether, seemed to be the same towing company.

What I infer is that employees of both St John and WA Police were involved but the person the subject of the ABC article was a St John employee and whilst I don’t know all the details of how the St John (WA) State Operations Centre works I will assume that the St John operators cannot access the WA Police records.  I will assume therefore, that the St John call taker was passing on information where people made triple zero phone calls requesting ambulance assistance at a motor vehicle accident.  I think, having read a number of reports on the matter, that the quote attributed to Superintendent Seivwright, that ‘the woman allegedly sourced the information from a secure police database and received payment for it…’ relates to the ‘employee at the WA Police Assistance Centre, which handles both emergency and non-life-threatening calls, was charged with corruption in January’.

I may be wrong in my understanding of where the St John employee got the information that was passed on but as we will see not much will turn on that.

Official secrets

We’ve all watched spy movies and heard reference to people ‘signing the Official Secrets Act’.  There is indeed the Official Secrets Act 1989 (UK) but the sort of secrets that, in the UK MI5 and MI6, or in Australia ASIO, ASIS and the Defence Signals Directorate deal with seem to be in a very different class to information about the location of a motor accident.

If this person has been charged with disclosing official secrets then it has to be under WA law and the relevant law is the Criminal Code 1913 (WA) s 81.    That section says:

Disclosing official secrets

(1)          In this section —

disclosure includes —

(a)          any publication or communication; and

(b)          in relation to information in a record, parting with possession of the record;

government contractor means a person who is not employed in the Public Service but who provides, or is employed in the provision of, goods or services for the purposes of —

(a)          the State of Western Australia; or

(b)          the Public Service; or

(c)           the Police Force of Western Australia;

information includes false information, opinions and reports of conversations;

official information means information, whether in a record or not, that comes to the knowledge of, or into the possession of, a person because the person is a public servant or government contractor;

public servant means a person employed in the Public Service;

unauthorised disclosure means —

(a)          the disclosure by a person who is a public servant or government contractor of official information in circumstances where the person is under a duty not to make the disclosure; or

(b)          the disclosure by a person who has been a public servant or government contractor of official information in circumstances where, were the person still a public servant or government contractor, the person would be under a duty not to make the disclosure.

(2)          A person who, without lawful authority, makes an unauthorised disclosure is guilty of a crime and is liable to imprisonment for 3 years.

Summary conviction penalty: imprisonment for 12 months and a fine of $12 000.

The State of Western Australia does not operate an ambulance service, instead it contracts with others, including St John Ambulance (WA), for those organisations to provide ambulance services to the community.

“St John Ambulance Australia (Western Australia) Inc. (SJA) is contracted by WA Health to provide ambulance services throughout the state. SJA is a non-government incorporated association, linked to the international Order of St John. It has a long history in Western Australia (WA) as the primary provider of ambulance services, operating since 1922. In this regard, WA and the Northern Territory are unlike other Australian jurisdictions where ambulance services are provided by government agencies and regulated by legislation.” (Delivering Western Australia’s Ambulance Services (Western Australian Auditor General’s Report, Report 5 – June 2013, p. 5).

The contract between WA and St John is available online – Services Agreement between State of Western Australia and St John Ambulance Western Australia Limited.  That contract was due to expire on 30 June 2018 but has been extended until June 30, 2020 (Minister for Health, St John Ambulance WA contract extension (26 June 2018)).

St John Ambulance (WA) is not, then, an entity that saw a gap in the market and is providing ambulance services on a fee for service basis entirely in its own right and according to its own assessment of the market.  It is a contractor to government providing services at the request of and in accordance with the terms agreed to with government.  I think we can safely say that St John (WA) is a ‘government contractor … who provides … services for the purposes of — (a) the State of Western Australia’.  It follows that a person employed by St John (WA) is also a government contractor for the purposes of s 81, quoted above.

It is therefore an offence for an employee of St John to disclose ‘information … that comes to the knowledge of [that] … person because the person is a … government contractor’.  Information about the location of a car accident that comes to a person’s knowledge because they have received a triple zero phone call has only come to that person’s knowledge because they are receiving that call as part of the contracted ambulance services.  It is therefore ‘official information’.

The issue that I can see is whether the Crown will be able to prove that there was ‘a duty not to make the disclosure’.  That may depend on the terms of any employment contract and any duty of confidentiality in those agreements and in the service agreement.  The confidentiality clause in the service agreement between WA and St John (cl 17) relates to confidential information held by each organisation with respect to the other and does not appear relevant.   The definition of confidential information in cl 1 relates to information about a patient’s identity and diagnosis which is not the same as information about where an accident has occurred.  It does include ‘all data collected in the course of this Agreement’ which may be wide enough to capture the information that was passed on.   The situation is made more complex by the fact that St John itself does give out information on the location of emergency calls in order to encourage nearby first aiders to respond – St John First Responder App (2019).  If St John can broadcast to the world the location of an emergency is there a duty on the call taker not to ring someone and pass on that same sort of information?

What we don’t know

What we don’t know is the details of the information the defendant is alleged to have provided, where it was accessed from or the terms of the employment contract.

If the information contained personal details, eg the names of people involved in the accident, then it will be easier given the terms of the agreement between St John and WA, and the terms of the Privacy Act 1988 (Cth) (as applied in WA) to argue that there was ‘a duty not to make the disclosure’.

If the information really was accessed from a database maintained by WA Police that St John call takers had access too, there is more likely going to be a confidentiality clause that prohibits further disclosure of that information and that too would make it easier to argue that there was ‘a duty not to make the disclosure’.

We don’t know the terms of any employment contract and most contracts would either expressly, or by implication, impose a requirement not to disclose information that is received in the course of one’s duties.  The Crown cannot however rely on a mere expectation that such a duty exists, it will need to prove, beyond reasonable doubt, that there was ‘a duty not to make the disclosure’.

Conclusion

This is a discussion on s 81 using the report on ABC News as a stimulus for the discussion.  It is not meant to suggest to either the Crown or the defendant in the case before the court how to run the case or what the outcome might be.  I am not suggesting that the defendant is, or is not guilty of the offences charged.  I do not have sufficient details nor is it my place to do that.

This discussion aims to address the point raised by my correspondent who said while ‘probably a clear breach of employment contract (and clearly immoral), I don’t know enough about the law to know if a private company’s data is regarded an official secret’.    A private company’s data is not an official ‘secret’ unless that company is a contractor to government and receives the information in the performance of its duties under the contract.  Even so it is not an offence to disclose that information unless there is ‘a duty not to make the disclosure’.  That duty could arise from law, the contract or the terms of the employment agreement.

Section 81 is entitled ‘Disclosing official secrets’ but the words ‘secret’ or ‘secrets’ do not appear anywhere in the section.  It should be called ‘Disclosing official information’.

Categories: Researchers

Interstate paramedics treating the mentally ill

19 August, 2019 - 10:45

Today’s correspondent asks:

  1. Can I detain (or apprehend) a patient suffering a mental illness in the ACT whilst working as an event Paramedic?
  2. Can I detain (or apprehend) a patient suffering a mental illness in any state or territory of Australia as a Registered Paramedic whilst off duty?

A bit about me to make this easier:

I’m an interstate Paramedic (AHPRA Registered).  I have the ability to detain patients under s56 of the Mental Health Act in South Australia whilst working for SA Ambulance. Sadly, I exercise these powers quite often, as despite the immense effort of staff, the mental health system lacks resources in SA. I also happen to work for a ‘private Ambulance Service’ in the ACT. I say ‘Ambulance Service’, because the entity is authorised to provide Ambulance Services under the Emergencies Act 2004, with approval from the minister;

In SA there is a low threshold (in my opinion), and this is shared by the Chief Psychiatrist, see s56 (c):

  (c)         it appears to an authorised officer that—

                  (i)         the person has a mental illness; and

(ii)         the person has caused, or there is a significant risk of the person causing, harm to himself or herself or others or property or the person otherwise requires medical examination.

Note I can place someone under ‘Care & Control’ under s56 merely for damaging their own property.  Imagine, a well-minded neighbour calls the ambulance service for a homeowner damaging their own private property secondary to a situational crises.

For my ACT work, my research has been found wanting, as I cannot find an actual definition for an authorised officer, apart from in ‘MENTAL HEALTH ACT 2015 (NO. 38 OF 2015) – SECT 139CB’, where it lists an ‘Authorised Ambulance Paramedic’ but does not define the term.  What constitutes authorised?  Clearly ACT Ambulance Paramedics fit into this, but do NSW Ambulance Paramedics or private Paramedics count?  I have not yet detained anyone, but want to know my legal standing before doing so – E.g. A person appears to be suffering a mental illness at a music festival in the ACT.  In the absence of another authorised officer (e.g. Medical Practitioner), is a private paramedic able to section a patient?

In another scenario, I am holidaying in a country town of Queensland and note a person on the street displaying signs of a mental illness.  I am not concerned for my own safety, scene is safe, but I call 000 and request Ambulance and Police to attend.  There will be some delay before their attendance.  The patient/person wishes to leave the scene and I feel they are a threat to themselves.  Can I detain/section/apprehend them?

Can you please shed some light on the above questions?

Depriving a person of their liberty is the ultimate exercise of state power and the power is therefore generally limited to the agents of the state (though, having said that, there are powers of citizen’s arrest and as we saw in Sydney recently, taking action to detain a person who is an active danger is not only encouraged but honoured).   Putting aside citizen’s arrest the power to detain is reserved for the state so we might, as a starting position, assume that a paramedic who is not currently working for a jurisdictional ambulance service will not have an independent authority to detain a person for their own good.   Let us then look at the law.

My correspondent is correct, the relevant Act in the ACT is the Mental Health Act 2015 (ACT).  Section 80 says:

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

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

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

(i) suicide; or

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

As my correspondent has noted it does not refer to a ‘paramedic’ but an ‘or authorised ambulance paramedic’.   The Dictionary that forms part of the Act says:

“authorised ambulance paramedic “means a member of the ambulance service—

(a)     employed as a paramedic; and

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

It refers to ‘the’ ambulance service, not ‘an’ ambulance service so I would infer that means ACT Ambulance Service.  In any event the paramedic has to be authorised by the chief officer (Ambulance Service).  If my correspondent is acting for an approved emergency service provider (Emergencies Act 2004 (ACT) Part 4.6) then in my view they are not a member of ‘the’ ambulance service.  Even if they were, the absence of an express authority means that my correspondent is not an ‘authorised ambulance paramedic’ and has no authority to act under the Mental Health Act 2015 (ACT) s 80.    That makes sense when we recall that s 80 says that an authorised paramedic ‘may apprehend a person and take the person to an approved mental health facility’ (emphasis added).  An event paramedic may want to detain a person, but they probably don’t want to transport them.

There are both common law and statutory powers to use reasonable force in self-defence (including the defence of others) and to prevent a suicide (in the ACT see Criminal Code 2002 (ACT) s 42 and Crimes Act 1900 (ACT) s 18 respectively). That would give rise to a power to detain a person who was a danger to others or was threatening to take their own life (not just damage their own property or who otherwise would benefit from mental health care).  Equally if the person’s symptoms mean that he or she is not competent to give consent (remembering that being mentally ill does not, of itself, mean a person is not competent – see Victorian decision on refusing medical treatment – reviewing the principles (November 24, 2018)) then the doctrine of necessity would justify action that is reasonable in the circumstances and in the patient’s best interests and that may include seeking to gently detain a person pending arrival of police or ACT Ambulance.  I’m not a clinician but one would have be careful that attempts to detain a person ‘in their own best interests’ did not do more harm than good if they were not an actual threat to themselves or others but that is a matter for clinical judgment.

When it comes to interstate action every state and territory does provide for interstate cooperation in the exercise of powers and the treatment and transport of the mentally ill (see for example Transporting the mentally ill from NSW to the ACT (July 18, 2018) and Mental health services by paramedics across the NSW/Victoria border (October 25, 2018)).

Without going through every section in every state, the principal is that authorised officers can exercise their authority when interstate.  As my correspondent has noted, a paramedic in South Australia has ‘the ability to detain patients under s56 of the Mental Health Act in South Australia whilst working for SA Ambulance’ (see definition of ‘authorised officer’ and ‘ambulance officer’).  That would mean that if in Queensland for work, eg on an interstate deployment, my correspondent could exercise the relevant powers, but not whilst on holiday.

The powers conferred on paramedics are conferred on them in their capacity as employees of the jurisdictional ambulance services and therefore as agents of the State. (Here I note that the power to detain the mentally in WA is vested in police as the state does not run the ambulance service – see Trauma or mental illness – WA (June 19, 2019)).  It follows that in my view the answers to the questions asked are:

  1. Can I detain (or apprehend) a patient suffering a mental illness in the ACT whilst working as an event Paramedic?

The short answer is ‘no’, at least not under the provisions of the Mental Health Act 2015 (ACT).  The answer maybe ‘yes’ if the person is a threat to others, threatening suicide or not competent to give consent to treatment and what is proposed is reasonable in the circumstances and in the patient’s best interest.

  1. Can I detain (or apprehend) a patient suffering a mental illness in any state or territory of Australia as a Registered Paramedic whilst off duty?

No.

For a related post, see The mentally ill and event first aid (January 10, 2019).

Categories: Researchers

Just to be clear – the blog’s continuing

18 August, 2019 - 19:00

In the post The end of an era at the Australian National University (August 18, 2019) I announced that I was being made redundant from the ANU, not from life.  Thank you all for the kind comments and best wishes but as I said ‘I will continue this blog at least whilst I see what other opportunities arise.’

What I meant is that the blog will continue unless I find myself so engrossed in something new that I haven’t even discovered yet.   Unless and until that happens, the blog will continue though it will be written by Dr Michael Eburn, Barrister rather than Associate Professor Eburn. Keep sending those questions and insights and I’ll keep reporting on the cases that come across my desk.

Categories: Researchers

Bushfire class action continues even though defendant is in liquidation

18 August, 2019 - 17:01

In my last post, The end of an era at the Australian National University (August 18, 2019) I announced that my position at the ANU was redundant and I was to leave the university. There I said ‘I will continue this blog at least whilst I see what other opportunities arise.’  Just to prove the point I follow that post with this blog post reporting on the decision in Margaret Ritchie v Advanced Plumbing and Drains Pty Ltd [2019] NSWSC 1028.

Margaret Ritchie v Advanced Plumbing and Drains Pty Ltd is a class action arising out of ‘of a bushfire which spread from a property at Carwoola NSW, on the Southern Tablelands near the Australian Capital Territory, on 17 February 2017. The plaintiff alleges that the bushfire was negligently started by Advanced Plumbing.’  The problem is that Advanced Plumbing went into liquidation on 18 December 2017.

Ms Ritchie sought leave to continue the action against CGU, the insurers of Advanced Plumbing.  Her right to proceed directly against the insurers, as well as the need to obtain leave of the court was contained in the Civil Liability (Third Party Claims Against Insurers) Act 2017 (NSW) (“the Act”).   In order to be allowed to proceed, the plaintiff had to show ([4]):

  1. That there is an arguable case of liability against the defendant (ie Advanced Plumbing and Drains Pty Ltd);
  2. That there is an arguable case that the insurer’s policy responds to that liability; and
  3. There is a real possibility that, if the plaintiff obtains judgment against the defendant, the defendant will not be able to meet it.

In a judgment delivered on 16 August 2019, Campbell J gave Ms Ritchie leave to continue the proceedings.  There was no real issue on point 3, as Campbell J said (at [5]) ‘Advanced Plumbing is not a good common law defendant, it having gone into voluntary liquidation and the initial report to creditors indicating an excess of liabilities over assets.’  The issue was whether there was an arguable case that Advanced Plumbing was liable and whether CGU were on risk to cover that liability.

With respect to the fire the plaintiff’s allegations (at [8]) are:

… the essential act of negligence of Advanced Plumbing pertains to the actions of its employees, and another, who, on a total fire ban day, used a “power cutting wheel” to cut reinforcing steel. The use of this equipment produced a “shower of sparks” that ignited nearby long grass causing a large bushfire. This fire spread over about 3500 hectares and caused very extensive damage. The occurrence took place at a construction site on which a house was to be erected for the company’s director who had directed several employees to carry out with the works on his private property. The evidence read at the hearing suggests that the person operating the cutting tool was a sometime employee of Advanced Plumbing not then currently on its books who the foreman had enlisted for the day. He appears to have been subsequently, formally re-employed as an apprentice plumber.

CGU denied liability (at [6])  because they said that the conduct that caused the fire ‘did not arise “as a result of an occurrence in connection with [Advanced Plumbing’s] business”; and is caught by the “welding endorsement” excluding liability arising from work involving certain processes, or the use of specified equipment, unless specific safety measures are adopted.’  The machine being used was a ‘quick cut’ not a welder ([13]).

His Honour held (at [19]-[26]) that there was an arguable case against the defendant. He said:

The material read before me clearly shows that there will be evidence available at the trial of the action demonstrating that Advanced Plumbing’s director and guiding mind, Jason Hooper, directed a number of employees to perform work on the construction site for his proposed private dwelling. Two persons were directly involved in the work using the quick cut. They were Shannon Orford, described as Advanced Plumbing’s “Civil Foreman”, and Harry Elliot who at that time probably was not employed by Advanced Plumbing.

The evidence seems to indicate that Mr Orford and Mr Elliot were working in a trench which had been previously dug for footings for a proposed retaining wall, near the construction pad for the dwelling. They were placing reinforcing steel for concrete footings which were to be poured on one of the following days. It was necessary to cut the steel in places where the footing dropped a level. The cutting was done using the quick cut, more formally a Husqvarna K 970 power cutter. The friction between the high speed cutting wheel and reinforcing steel ordinarily causes a shower of sparks. For this reason the usual method is to cut directing the shower of sparks into the trench. Half a dozen or so cuts had been made earlier without incident…

The men were apparently entirely oblivious to the total fire ban then in place. Mr Orford and Mr Hooper both agreed that had they been aware of the ban, bolt cutters would have been used to cut the steel, rather than the quick cut.

Initially Mr Orford claimed to be the person using the quick cut when the fire started. It later became apparent he had said that to protect the younger Mr Elliot. It appears to be the case that Mr Elliot was given the task of completing a particular cut. He had experience cutting with an angle grinder. Initially he directed the shower of sparks into the trench in the proper manner. However, the sparks rained on Mr Orford who yelled out for Mr Elliot to turn the machine around. It is apparent that Mr Elliot obeyed this yelled command directing the shower away from the line of the trench and in the direction of the long grass across the fire ring…

Whatever complexities there may be in deciding questions of the existence, nature and scope of duties of care in the modern law of negligence, generally speaking a person who undertakes the performance of work on land will be under a duty to exercise reasonable care in its performance to avoid foreseeable risk of harm to others: Voli v Inglewood Shire Council (1963) 110 CLR 74; [1963] HCA 15. Where the work is hazardous work, including work involving a foreseeable risk of the escape of fire from the land, the landowner or other person authorising the work will be subject to a non-delegable duty of care extending to ensuring that the persons performing the work take reasonable care to avoid that occurrence: Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520; [1994] HCA 13. For this reason, and given the relatively low threshold I have referred to, it is pointless to pause to consider whether Advanced Plumbing would be vicariously liable for any negligence on the part of Mr Elliot: cf, Sweeney v Boylan Nominees Pty Ltd (2006) 226 CLR 161; [2006] HCA 19.

I regard it as arguable that Advanced Plumbing owed Ms Ritchie and other neighbours a non-delegable duty of care … I am also satisfied that … cutting steel using a quick cut on an extremely hot day exposed the plaintiff and other group members to a reasonably foreseeable and not insignificant risk of harm by the escape of fire from Mr Hooper’s property. I am also satisfied that it is arguable that a reasonable person in the position of Advanced Plumbing would have taken the precaution of requiring the work of cutting the reinforcing steel to be performed using bolt cutters which, on the material read at the hearing, did not involve the risk of the ignition and escape of fire.

It is also arguable that use of the quick cut or the failure to use bolt cutters was a necessary condition, as a matter of fact, of starting the fire and of its escape … it is also at least arguable that no real question arises about the scope of Advanced Plumbing’s liability properly extending to the harm suffered by the plaintiff and other group members.

The burden to show that the insurance policy issued by CGU did not extend to cover this risk fell to CGU ([28]).  Determining this matter required careful consideration of the terms of the policy.  CGUs argument was that the work being done was not part of the business of Advanced Plumbing. First the work was private work for the company’s director and second the work being done was ‘part of the preparation and laying of metal reinforcement mesh, in preparation for a concrete pour…’ and this ‘was not related to drainage or plumbing work’ ([38]).

The business case argument failed as the definition of the defendant’s business, in the insurance policy included ‘private work undertaken by the Insured’s Employees for any director, partner, or senior executive of the Insured’ (see [39]-[41]).

The normal work of the defendant was ([42]) “[p]rincipally plumbing and any other activities incidental thereto” not only plumbing.   His Honour accepted ‘the submission that Advanced Plumbing was not a typical residential plumbing service. Rather, on the evidence it is apparent that it was a business which undertook larger scale commercial projects.’  Further the evidence was (at [45]) that:

… the works conducted on his private premises were well within the scope of the usual business activities of Advanced Plumbing. There is no evidence that such work was any more complex than usual, or that that it was significantly different from the types of jobs typically undertaken by Advanced Plumbing.

At [53] His Honour concluded:

I am not satisfied that CGU has established that it is beyond argument that it is entitled to disclaim indemnity because Advanced Plumbing’s potential liability is not a result of an occurrence happening in connection with Advanced Plumbing’s business as required by the insuring clause.

With respect to the welding endorsement, the insurance policy said (at [55]-[56]):

The liability of the Insurer to indemnify the Insured pursuant to Clause 1.1 and to pay other costs and expenses pursuant to Clause 1.2 shall not extend to any liability arising out of or in any way connected with any arc or flame cutting, flame heating, arc or gas welding, electric, oxy-acetylene, laser cutting and/or spark producing equipment by or on behalf of the Insured or similar operation in which welding equipment is used, unless such activity is conducted in strict compliance with the:

1. Australian Standard AS 1674, part 1 – 1997 ‘Safety in Welding and Allied Processes – Fire Precautions’…

CGU’s argument is that the Husqvarna K970 power cutter is “spark producing equipment” within the meaning of the welding endorsement. And that the work in question was not conducted in strict compliance with Australian Standard AS1674 Part 1 – 1997.

At [63] His Honour said:

In my opinion the general expression “spark producing equipment” in context in the welding endorsement should be read down to be limited to equipment of the type specified, all of which, as Mr Rankin explains, involve the direct application of heat in one form or another to perform their function. In my judgment “spark producing equipment”, in context, does not apply to equipment which may incidentally produce sparks depending upon the particular use to which it is being put on a particular occasion. It’s clear that the power cutter, or other grinders, can be used in a variety of industrial situations, all of which may depend upon friction to perform the equipment’s function, but not all of which produce sparks. I am not satisfied that it is beyond argument that the power cutter is caught by the endorsement.

Further even if the quick cut machine is covered by the endorsement (at [64]):

… the evidence indicates that certain precautions were taken including clearing the fire circle and the provision of fire-fighting equipment. It seems to be at least arguable if the endorsement applied that the standard was complied with at least in so far as the risk of grass or bushfire was concerned.

Accordingly it was arguable that CGU were on risk for the activity that caused the fire.  His Honour was not saying that CGU were liable, only that they could not establish that they were not liable so the matter can proceed to trial so the parties can lead evidence and have more complete arguments based on that evidence.   His Honour said (at [66]):

I am satisfied that it is arguable that Advanced Plumbing is liable to the plaintiff and other group members; that there is an arguable case that CGU’s policy responds to that liability; and there is a real possibility that if the plaintiff obtains judgment against Advanced Plumbing, that Advanced Plumbing will not be able to meet or satisfy that judgment.

Having reached those conclusions, His Honour made the orders allowing the action to proceed against CGU in the place of Advanced Plumbing.  It now remains to be seen how the issues of liability are finally resolved should the matter continue to trial.  Of course now that CGU know they are liable the matter may, like most cases, settle.

Categories: Researchers

The end of an era at the Australian National University

18 August, 2019 - 15:08

On Thursday 8 August the ANU announced that it would ‘withdraw from delivery of the GDLP [Graduate Diploma of Legal Practice] and the MLP [Master of Legal Practice] programs’ with ‘the subsequent closure of the SLP [School of Legal Practice]’.   The university is to discontinue ‘up to 29 … continuing academic staff positions’ and my position is one of those to go.  In short, I am to be made redundant and dismissed from the University.  My final date at ANU is yet to be negotiated.

It’s been an extraordinary career.  I’ve met and worked with some wonderful people. Academics and emergency management practitioners with amazing intellects, passion and commitment to making the world a better and more resilient place.  I’ve got to travel the world (largely at someone else’s expense) having been invited to conferences and events in Germany, Italy, Japan, Malaysia, New Zealand, Switzerland, the United Kingdom, the United States and around Australia.  My family and I have had the joy of spending 2 sabbaticals in the UK – 9 months at the University of Hull in 2003/2004 and 6 months at Northumbria University, Newcastle in 2017.

Being an academic is a privilege. I’ve got to choose the areas in which I want to work and have been fortunate enough to establish an expertise in, and be recognised as an expert in, the area of emergency management and response law.  Having been involved in emergency services since the age of 13 it has been a joy to turn that interest into a career.  I’ve worked with members of the fire, ambulance and emergency services across Australia and I’m grateful for the respect they’ve shown me and in return I have tried to honour the work that they do.

As a lawyer that expertise is not something that I could have developed in private practice as there just is not enough work in that area.  A legal practitioner becomes an expert in the work that comes in the door, not the work that they necessarily want to choose.

Whether I remain in this field remains to be seen.  I retain a practising certificate as a Barrister in the ACT and I have a very small practice giving advice to emergency service providers, both public and private.  There may be opportunities to expand that practice and to be available to offer training across the sector.  I will continue this blog at least whilst I see what other opportunities arise.  My time on the Board of Paramedics Australasia will end in November but I hope to continue to serve on the Board of St John Ambulance Australia (ACT).

This is an early transition to retirement and that is not a bad thing.  I’m looking forward to avoiding interminable emails and hopefully finding some work where going home means knocking off.  This is not a moment of sadness or anger; the forces of the Universe have come together to end my full-time career and force me to look for new opportunities.  Those opportunities will include finding ways, and now time, to step back and give my wife time to focus on the interests that she has put on hold whilst our girls needed her attention, and whilst my career has developed.

There are exciting times ahead.

Categories: Researchers