Today’s correspondent brings to my attention threatened action by members of Victoria’s CFA refusing to fight fires ‘around new renewable power plants and transmission lines’ as reported by the ABC – see Angus Verley ‘Volunteer firefighters say they will not fight fires around new renewables projects, transmission line’ ABC Rural (Online) 19 June 2024.

My correspondent says:

I read this with some curiosity and wonder if you’d be interested in looking at whether individual Brigades can refuse to fight fires, as an industrial or political demand? Do these volunteers have any legal ground to stand on?

These are interesting questions.

Fire services respond to risks created by others

The ABC article says:

VNI West — a transmission line that would run hundreds of kilometres through farmland in western Victoria — has triggered angry protests from farmers who say they do not want it on their land…

North-west Victorian farmer and director of Farmers for Climate Action Brett Hosking lives in the line of the VNI West transmission line project.

He said the local community feels the engagement has been “woeful” and he understands the frustration from volunteers.

“I don’t think there’s too many people in society that wouldn’t be sympathetic to these volunteers who leave their families, leave their businesses, leave their work behind, to go and fight a fire dealing with infrastructure that’s been forced on them by someone else.”

Members of the fire services are always called upon to fight fires in ‘infrastructure that’s been forced on them by someone else’.   When they go to a house fire they are fighting a fire in a house that they were not consulted on and had no input into its design or maintenance.  No doubt individual brigades are not being asked if it’s ok to install ev charging points and people are not ringing their local brigade to ask if it’s ok to install solar panels and a battery in their home. The emergency services are how society deals with the residual risk of all infrastructure planning.  As Professor Steve Dovers said (in ‘Mainstreaming disaster risk reduction, seriously?’ (2022) 37(2) Australian Journal of Emergency Management 20-23 at p. 20):

Bluntly, the job of emergency management and disaster policy is to prepare for, and then cope with, problems caused by vulnerabilities created by other policy sectors. Houses in risky locations, people in vulnerable situations and assets at risk from natural hazards are often in such circumstances because of decisions or non-decisions made in land-use planning, development approval, transport, infrastructure, housing, public health, communications and elsewhere. Those policy sectors may overlook or pay scant attention to DRR when decisions are made. Indeed, it might not be part of their mandate.

One has to infer that firefighters do not and cannot object to fighting ‘a fire dealing with infrastructure that’s been forced on them by someone else’ because if they did they would cease to be firefighters. Rather they object to fighting fires on or near this particular class of infrastructure.

Politics

The ABC article goes on to quote ‘Jason Barratt, the captain of the Traynors Lagoon Fire Brigade and spokesperson for the newly formed Firefighters Against Renewables Over Victoria’.  The article continues:

The group’s letter of demands calls for an immediate halt to “all current and proposed projects” and requests “appropriate reconsideration of alternative solutions”, which Mr Barratt said should include nuclear power generation.

The cosignatories said infrastructure such as VNI West would “greatly impact our ability to control wildfire both on ground and particularly from the air”.

Mr Barratt said transmission lines and renewable energy plants would make it more difficult to fight fires.

“We’re worried about our ability to fight fires around transmission lines and the CFA hasn’t been very good at all at giving us clear instructions on how safe it is to fight fires around them,” Mr Barratt said.

Given there has to be transmission lines from any power station, coal fired, nuclear or renewable and given that the transmission lines are all carrying electricity, regardless of where it is sourced, I for one don’t understand the issue with respect to transmission lines. The fire brigades already have to deal with transmission lines.  The article quotes a ‘Victorian government spokesperson [who] said there were “no records of a transmission line ever starting a bushfire in Victoria”.’  Powerlines are known to have started fires but these are not, presumably the high voltage transmission lines but the distribution lines running to homes and communities (see Bushfires; the price we pay for electricity (May 20, 2014)).

The Firefighters Against Renewables Over Victoria group don’t mention how CFA volunteers will feel about being asked to fight a fire at nor near a nuclear power plant.

If there is a legitimate safety concern, then it doesn’t make sense to say ‘…landowners who agreed to host transmission lines on their properties should not expect the assistance of firefighters.’ If there was a safety concern it would make sense to say ‘we won’t fire within a prescribed distance of the asset, regardless of who owns the land’ rather than we won’t fight a fire on land owned by landholders who have ‘agreed to host transmission lines on their property’ regardless of where and what is on fire and how close it is to the transmission lines. That appears to be a policy intended to punish landholders with a different view.

Mr Barratt is quoted as saying:

“At the end of the day, we are volunteers and the government is willingly putting this infrastructure in and adding risk to our community and our members and it’s unnecessary.”

Whether it’s necessary or not depends on the policy objectives. Current government policy is to reduce reliance on coal and gas generated power and increase reliance on renewable.  We are told:

This is the latest protest action by affected regional communities against planned transmission line projects being rolled out to connect planned renewable projects, which state and federal governments say are essential to meet renewable and climate change targets.    

As farmers and members of the community of course members of the CFA have a right to a view but it’s not for the CFA as such to direct government policy, but clearly this is an exercise in politics and trying to influence energy policy.

The quoted volunteers think these transmission lines are not essential, the federal and state governments think they are. Trying to push the government to a different view is clearly an exercise in politics rather than safety.

Safety

Having said that there may be particular concerns about particular issues eg battery fires, fires at solar plants etc.  If I accept, for the sake of the argument, the issue really is about safety then we can look at the legal issues.

First, Victoria has not adopted the model Work Health and Safety Act that all other states have adopted. Under the model Act the definition of worker includes a ‘volunteer’ so that volunteers are entitled to be consulted about WHS issues and are entitled to refuse to do work that they think exposes them to an unacceptable risk (Model WHS Act s 84).   Under the Occupational Health and Safety Act 2004 (Vic) s 23(1), the duty of the CFA is to ensure that ‘so far as is reasonably practicable, [Volunteers] … are not exposed to risks to their health or safety arising from the conduct of the undertaking of the [CFA]…’  There is no particular right of those volunteers to be part of the CFA’s OHS processes nor a specific right to ‘stop work’. But of course they don’t need such a right, they are volunteers, volunteers are always free to decide that today, they are not going to volunteer, or they are not going to volunteer to do a particular task.   That is the nature of being a volunteer. 

No-one could sue a volunteer for choosing not to volunteer. The obligation to provide firefighting services is an obligation of the CFA not each member. If the CFA is unable to provide firefighting services and anyone wanted to claim compensation their action would have to be against the CFA not the volunteers, though such an action would be unprecedented and unlikely to succeed – see Liability for fire – a review of earlier posts (January 8, 2016).

The situation may be different if the members did turn out, ie they were volunteering, and then did as they threaten and refused to enter the property to perform their task. If, for example, the volunteers can see that a person is trying to save their house but they do nothing but watch, then the circumstances of an identified vulnerable person where the CFA has the resoruces and statutory authority to assist but does not, may be sufficient to give rise to a relevant duty of care (see Caltex Refineries (Qld) Pty Ltd v Stavar (2009) 75 NSWLR 649; Kent v Griffiths [2001] QB 36).

The CFA must walk a fine line here. If the concerns really are about safety, they need to be addressed. The ABC article says:

… CFA deputy chief officer Brett Boatman said the CFA was working with its members on issues around fighting fires near transmission lines and renewable energy plants.

“The concerns from our CFA members have been heard and we are working with them to ensure the right information is out there,” he said.

“CFA … respects our members’ rights to engage in matters relevant to their local communities.”

If it’s not truly about safety, if it’s farmers and community members who are also CFA volunteers using their standing, the reputation of the CFA and the fact that communities depend upon them, to push their own beliefs about energy policy and to fight infrastructure they don’t want in their backyard then that is a different matter. The only legal implication from that that I can see however, is that the CFA may at some time have to consider whether their actions breach any relevant Code of Conduct and reflect on their ability to remain as members of the CFA. 

If the response is really a reaction to being asked to respond to risks imposed by others it sets a dangerous precedent.  What if firefighters refused to rescue people from crashed Electric Vehicles because they weren’t consulted about their design and introduction? Or SES volunteers refuse to rescue people from flooded homes because no-one asked them if it was a reasonable place to build?  Or paramedics refuse to treat people who fall off cliffs because no-one asked them if it was a safe place to hike?

Conclusion

If there are legitimate safety concerns, then they need to be addressed and of course volunteers can refuse to do tasks that they consider are too dangerous. 

But where a group refuse to fight a fire on land owned by a landholder who ‘agreed to host transmission lines on their properties’ rather than a fire near a transmission line, and who argue that they cannot fight transmission lines from renewable plants but want governments give what they decide is ‘”appropriate reconsideration of alternative solutions” including nuclear power, then this is, in my view, a clear attempt to use the goodwill of the CFA to bring political pressure to bear on governments.

The legal risk to those volunteers, as I see it, is they may put their membership of the CFA at risk but the CFA has to tread a very fine line so as not to be perceived to be ignoring safety risks and it may be that amongst the noise there really are safety issues arising in the new technology that need to be addressed. 

This blog is made possible with generous financial support from the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), Natural Hazards Research Australia, NSW Rural Fire Service Association and the NSW SES Volunteers Association. I am responsible for the content in this post including any errors or omissions. Any opinions expressed are mine, and do not necessarily reflect the opinion or understanding of the donors.

A complaint process has to go through two stages, the first stage is to determine whether the conduct complained of actually happened, and if it did, was it a breach of a relevant rule or code of conduct.  If the allegations are established the next stage is to determine the appropriate sanction.

In Macann v State of Queensland (Queensland Ambulance Service) [2024] QIRC 146 Mr Macann, a Queensland Ambulance Service (‘QAS’) paramedic was the subject of three complaints relating to his treatment of a young intoxicated man.  The relevant decision maker had determined that the complaints were established but before the issue of penalty was addressed, Mr Macann appealed to the Queensland Industrial Relations Commission.  The Commission held that the findings against Mr Macann in relation to 2 out of the 3 complaints were not ‘fair and reasonable’ and they were set aside.

Allegation A

Allegation A was that ‘while attending incident [number] you acted inappropriately towards a patient, calling them a “little bitch”.’

Mr Macaan denied using the words alleged. The Commission found that the decision maker relied on statements given by the patient’s two flatmates, Mr Smith and Ms Jones, but they had been interviewed together. Ms Jones agreed her recollection of the night was ‘poor’ ([111]).  Mr Smith asked Ms Jones if Mr Macaan had used the ‘little bitch’ phrase. This was not corroboration of that claim but rather Mr Smith was prompting Ms Jones. If Mr Smith was a witness he should have been separately interviewed. The decision maker also relied upon the complaint filed by the patient’s mother but she had not been there but was reporting what she heard and her previous impressions of Mr Macaan.  At [115]-[116] Commissioner Butler said:

The evidence relied upon to find that Allegation A was substantiated was not sufficiently strong, having regard to Briginshaw.

Having regard to the foregoing, it was not fair and reasonable to find that Allegation A was substantiated.

(For a discussion on the decision in Briginshaw v Briginshaw (1938) 60 CLR 336 see The rules of evidence and a NSW RFS disciplinary panel (February 16, 2024)).

Allegation B

This allegation was that ‘the Appellant “acted inappropriately towards a patient by demonstrating little respect for the patient’s situation and medical history.”  The Commission took the view that the allegation was poorly framed and did not adequately explain to Mr Macaan what it was he was alleged to have done.  At [118] Commissioner Butler said:

The particulars were confusing. Many of the paragraphs of “particulars” of the allegation were restatements of responses that Mr Macann had previously provided, during the earlier investigation, without a clear indication of why or how those restatements were particulars of the allegation. The allegation itself is in general and broad terms. Particularising it should have shed light on, not clouded, what was being put to Mr Macann for response. Mr Macann has a right to procedural fairness including being given a proper opportunity to respond. A proper opportunity to respond requires a clear statement of the issues.

The use of the viewer

The decision maker argued that the failure to refer to the ‘The Viewer’ (see QAS paramedics accessing patient information via ‘The Viewer’ for ‘follow up’ (October 20, 2023) and Accessing ‘The Viewer’ before accessing the patient (June 5, 2024)) showed Mr Macaan was not interested in obtaining the patient’s history to make a diagnosis. The Commissioner said (at [125], [127]):

… the decision-maker found that Mr Macann failed to recognise the patient’s vulnerability despite being familiar with the patient. Mr Medlin also found that Mr Macann’s priority was not the patient and alleviating his reported pain. There is a criticism of him for failing to look at The Viewer which seems to be taken as showing Mr Macann’s priority was not the patient and alleviating his reported pain. These findings and comments appear to go to the issue of whether Mr Macann dismissed any diagnosis other than anxiety…

With respect to the use of The Viewer the Commissioner said (at [131]:

It was not clear to me whether and if so the extent to which Ambulance officers are required to check patients’ medical history via “The Viewer” while attending on a patient. The Respondent’s submissions refer to times at which the Appellant “could have” checked The Viewer but stop short of saying he was required to do so.

Mr Macaan’s submission (at [40]) was that the claim he should have looked at the Viewer:

… disregards the relevant circumstances, all of which required the Appellant’s full attention, namely that the patient:

(a) was seeking reassurance from the Appellant;

(b) was of large stature making it unsafe for the Appellant to deal with the patient on his own;

(c) was prone to unpredictable movements;

(d) wanted to be taken into his home by his housemates at the time.

In any event, the Commissioner said, it could not be fair and reasonable to rely on Mr Macaan’s failure to access the Viewer because it was never put to him that this was an issue being considered as demonstrating a lack of care, or respect for the patient ([136]).

Commissioner Butler said (at [150]-[154]):

The allegation was broadly drawn, and the particulars so confusingly written, as to fail to afford the Appellant a proper opportunity to respond.

The documentary evidence favours a finding that Mr Macann did recognise vulnerabilities on the patient’s part. It favours a finding that Mr Macann did seek to alleviate the patient’s pain by the administration of paracetamol, which coincided with the pain score dropping from 4/10 to 0/10. There is nothing on the face of the decision to indicate what evidence if any the decision-maker relied upon to make findings to the contrary.

The Respondent did not put to Mr Macann the issue of whether his failure to look at The Viewer could form part of the basis for finding Allegation B to be substantiated.

The Appellant put forward four justifications or excuses for his failure to assist the patient up from the ground, and to the stretcher. The decision-maker misapprehended one and failed to consider the other three.

Having regard to the foregoing, it was not fair and reasonable to find that Allegation B was substantiated…

Allegation C

This was an allegation that Mr Macaan ‘failed to provide adequate clinical care’ and in particular failed to apply the QAS Clinical Practice Guidelines ([156]).  The gist of the complaint was that the CPGs require that an intoxicated person should be transported unless ‘the patient be able to walk unassisted, able to maintain their own safety, and left in the care of a responsible and sober person’ ([161]).

Mr Macaan’s response wat that the patient refused transport ([164]) but this was not documented as required by the CPGs. There was no record of ‘Clinical assessment findings’ and ‘Outcome of the QAS VIRCA process (Voluntary, Informed, Relevant, Capacity and Advice)’ ([168]). The decision maker said:

… you detail the process you say you followed aligning it to the VIRCA process; however, this is not documented in eARF [report number] as required. Instead, the eARF only contains a notation of “Transport not required following paramedic assessment.” I am therefore persuaded that you did not follow the requirements of Clinical Practice Guideline – Other/QAS Non-transport in relation to this matter.

The conclusion that Mr Macaan had not followed the relevant CPG was ‘fair and reasonable’ ([169]).

Discussion

When I first read this case, I took the view that there was little value in reporting it, but a correspondent wrote and said they were ‘curious to hear/read [my]… thoughts in regards to the viewer and the appropriate use or as stated by the respondent’ in this case.

My thoughts are we can take very little from this case. This case is more about Assistant Commissioner Medlin, the decision maker, than Mr Macaan.   In this case the tribunal was not assessing whether Mr Macaan’s conduct was reasonable in the circumstances, that is the Commission was not deciding whether it was ‘ok’ to refer to a patient as a ‘little bitch’ or whether Mr Macaan should or should not have looked at the Viewer. The Commission was looking at whether Mr Medlin could be satisfied that those things had happened.

Commissioner Butler ruled that, with respect to Allegation A the evidence was insufficient to support a finding that the words alleged to have been used had been said at all.  The decision reminds decision makers to carefully consider the evidence of witnesses including their capacity to remember events and focussing on evidence that goes to the issues. As the union representing Mr Macaan said (at [39]):

… the Respondent must be held to the same level of accountability that it expected to hold the Appellant to, in that it must abide by its own procedures, and that the failure to follow procedures led to a “reduced ability to credibly test the evidence” of Ms Jones and Mr Smith.  

The Commission did not say that Mr Macaan’s conduct was not a breach of any Code of Conduct nor that it was justified by the circumstances rather they said they could not be satisfied that it ever happened.

With respect to allegation B certainly the decision maker wanted to rely on the fact that Mr Macaan did not consult the Viewer to access the patient’s history (see [124]-[125] and [131]-[136]). The Commission ruled that this was neither fair nor reasonable. QAS alleged that Mr Macaan ‘acted inappropriately towards a patient by demonstrating little respect for the patient’s situation and medical history’ but did not spell out what it was that he did, or did not do, that was ‘inappropriate’ or demonstrated ‘little respect for the patient’s situation’.   When the decision maker gave his reasons for being satisfied that the allegation was made out, he relied on the fact that Mr Macaan had not consulted the Viewer but it was never made clear to Mr Macaan that this was the, or one of the, things that showed inappropriate behaviour or ‘little respect’ and so he had not addressed it when asked to respond to the allegation.  Because he was not put on notice that this was a basis for the allegation, he was not given ‘an opportunity to be heard in relation to it’ ([136]). Because this was not part of the allegation, the decision maker could not rely on that fact as part of his reasoning.

The case tells us nothing about the use of the Viewer. The Commission was not reviewing Mr Macaan’s decision to say that his decision not to consult the Viewer was reasonable. Nor did the Commission make a ruling that consulting the Viewer could or could not be evidence of inappropriate conduct. They said that in this case the decision maker could not rely on it because it was never put to Mr Macaan that this demonstrated his lack of ‘ respect for the patient’s situation and medical history’.    Again the case is of more relevance to decision makers reinforcing the need to give a person a clear indication of what it is they are alleged to have done, or not done, that constitutes a breach of discipline.

The only decision that was ‘fair and reasonable’ was the conclusion that Mr Macaan ‘ failed to provide adequate clinical care’ because he did not transport a person seriously affected by alcohol in accordance with the relevant CPG and/or he did not properly conduct, or at least record the result of, the VIRCA process to ensure that any stated refusal of transport was voluntary and that the patient had capacity to make that decision.  It will now be up to QAS to determine the appropriate action on that complaint and that complaint alone.

Conclusion

I was asked for ‘[my]… thoughts in regards to the viewer and the appropriate use or as stated by the respondent’ in this case’.  My thoughts are the case gives no guidance on the use of the Viewer. The best that can be said is that Assistant Commissioner Medlin thought the failure to consult the Viewer indicated a lack of concern for the patient and his history, but that the Assistant Commissioner’s conclusions on the matter were neither fair nor reasonable.

What we learn from the case is that decision makers must approach their task with care. They must ensure that a person is aware of what it is they are alleged to have done, or not done, that forms the basis of any allegation, and any evidence must be carefully considered, particularly in light of the precedent in Briginshaw v Briginshaw.  A decision maker must consider any response in reply which does not mean they have to accept a respondent’s claims or arguments but they have to demonstrate that they have considered them.  This case is about the process for managing disciplinary proceedings more than it is about the use of the ‘Viewer’ or appropriate ways to speak to a patient.

This blog is made possible with generous financial support from the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), Natural Hazards Research Australia, NSW Rural Fire Service Association and the NSW SES Volunteers Association. I am responsible for the content in this post including any errors or omissions. Any opinions expressed are mine, and do not necessarily reflect the opinion or understanding of the donors.

Today’s correspondent asks:

In an emergency situation where you are treating an unconscious patient or one with an altered level of consciousness, is it permissible to use the patient’s phone and their fingertip or face to unlock it in order to access emergency contact details? Does this protocol differ for a first aider compared to a registered paramedic working for a jurisdictional ambulance service?

I have answered that before, see Accessing the unconscious patient’s phone (December 3, 2016). I revisit it not because I think the law is changed – ‘if you can’t communicate with the patient and your actions are reasonable and in the person’s best interests, they can be justified’ – but I think it’s worth asking whether it is actually reasonable to take the time to do this.

First, you can have no idea whether the patient will have any readily identifiable emergency contact details.  If their partner’s number is recorded under their name – Jane or Bill – you won’t be able to identify who out of the many contacts is the emergency contact.  Equally if the phone has an entry for ‘mum’ or ‘dad’ you don’t know who is the appropriate person to contact.

If the person is not able to communicate with you then you are probably more concerned with actually treating them – if they are unconscious or with an altered level of consciousness that may mean protecting them and trying to deal with the cause of their illness or injury.  Surely trying to access their phone takes away valuable resources and time.

And what are you going to do with the information.  In the various times I’ve served with ambulance services it’s never been suggested that we would be ringing relatives from the scene.  That is better left to police or hospital staff who will have more information and a quieter place from which to call or the resources to go and knock on the door. 

I would also think it would not be reasonable to access the phone to try and get medical information as you cannot have any idea what information the person may or may not have stored on their phone or how to find.  All phones are different and perhaps they decided there was a better way than that suggested by apple, or android or nokia, or google or whoever else provides the operating system on their phone.   And what do you do with that information?  If it tells you their diabetic paramedics have probably already taken a blood sugar level.   If it tells you their blood group no-one would seriously believe that but would check before giving a blood transfusion.

In short finding information would be down to ‘sheer, dumb luck’ and even if you could find it, what are you going to do with it?  The clinicians who read this blog might like to give information when it would be reasonable, but I cannot really imagine why you would want to bother taking the time trying to unlock their phone.

Does this vary whether it’s a first aider or a paramedic? Only the extent that a first aider has even less need to find the information which they may be hoping to find.  If they are treating someone who is unconscious or with an altered level of consciousness they’re going to pass the patient onto a paramedic who is, all things going to plan, hand them onto a hospital. A first aider has even less reason to look for the information that may, or may not, be on the phone than a paramedic so the threshold – that the action was ‘reasonable’- will be harder to reach.

As an aside, on my phone I have a background image on my ‘lock’ screen that says:

This phone
belongs to
Michael Eburn
If found, or in
an emergency
please ring
[Name] on
[Phone number]

That’s worked twice when I’ve left my phone somewhere and someone has rung my partner to tell them where it is, and I’ve been able to recover it.  Hopefully it will work in an emergency as that information is right there, without the need to unlock the phone.

(I wrote it on a word processor, took a screen shot and saved it as an image then loaded it on my phone and set it as my lock screen image).

Conclusion

My conclusion to my earlier post was ‘if you can’t communicate with the patient and your actions are reasonable and in the person’s best interests, they can be justified’.  I still think that is the case, but I do think it would be very hard for a first aider, and in most circumstances for a paramedic, to show that the action was ‘reasonable’.  But if it is – if in the context you can show that it was reasonable – you needed the information and you had reason to believe that information that was vital to the immediate needs of the patient was on the phone and you were going to be able to locate it (not just ‘it might be’) – then it’s probably fine.   

This blog is made possible with generous financial support from the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), Natural Hazards Research Australia, NSW Rural Fire Service Association and the NSW SES Volunteers Association. I am responsible for the content in this post including any errors or omissions. Any opinions expressed are mine, and do not necessarily reflect the opinion or understanding of the donors.

Paramedicine Board of Australia v Graham [2024] VCAT 534 (06 June 2024) involved disciplinary action for a paramedic’s drug use and his failure to seek health care for his addiction before it was detected. Mr Graham had been a paramedic since 2005. He was registered in mid-209. It was alleged that:

… that on 5 June 2020 Mr Graham engaged in professional misconduct or other relevant conduct in that he practised the profession of paramedicine while he would have been affected by methamphetamine such that his ability to perform complex tasks (such as driving and other duties) would have been impaired, and with the presence of methamphetamine, cannabis, amphetamine, codeine and delta-9-TCH-COOH (indicative of the use of cannabis) in his system (the relevant drugs).   The Board further alleges that from 30 May 2019, or from about that day, until 5 June 2020, Mr Graham engaged in professional misconduct or other relevant conduct in that he failed to manage his health.

His registration was suspended by the Paramedicine Board, acting under s 156 ‘immediate action’ in 2020. The matter came before the Victorian Civil and Administrative Tribunal for final resolution on 22 May 2024.  Before VCAT Mr Graham admitted the allegations and agreed with the Board that he should be reprimanded and have conditions imposed on his registration. The Board sought a further period of suspension which Mr Graham opposed.

The history

Mr Graham’s drug use was detected during workplace drug testing on 5 June 2020. After the results of a urine test confirmed the presence of various illicit drugs he was referred to the Paramedicine Board on 12 June 2020.  His registration was suspended on 30 June 2020 ([10]).  His employment was terminated in September 2020 ([13]).

In December 2020 Mr Graham saw Dr Phillip Crowley, a specialist in addiction medicine.  Dr Crowley diagnosed ‘Severe Methamphetamine Use Disorder, and Severe Cannabis Use Disorder’ ([14]) and recommended that Mr Graham not practice as a paramedic until he could demonstrate ‘sustained remission’ and ‘evidence of relevant treatment by his psychologist or General Practitioner’ ([16)].

In 2023 Dr Crowley again assessed Mr Graham. In his report of August 2023 (at [17]):

Dr Crowley expressed the opinion that Mr Graham no longer suffered from a substance use disorder or substance dependence diagnosis that may detrimentally affect or be likely to detrimentally affect his capacity to practise his profession.  Mr Graham had demonstrated a sustained recovery and Dr Crowley considered the risk of further substance use was low.

Mr Graham had acknowledged the risk he had caused to colleagues and patients. Had undertaken treatment and cooperated with the Board’s various processes ([19]). Mr Graham was supported with reports from his treating GP and psychologist, confirming that he had been attending treatment and returning negative drug test results ([20]-[21]).  He had been driving emergency vehicles with the CFA without incident. He provided references from supervisors from AV and the CFA who had been aware of his prior drug use ([22]-[23]).

The result at VCAT

Uncontroversially, VCAT was satisfied of the allegations and the use of illegal drugs, and the failure to manage his own health, represented professional misconduct.  The Tribunal said (at [37]-[38]):

Mr Graham’s conduct was serious.  It was connected to his practice as a paramedic.  It exposed patients, colleagues and the public to risk of serious harm.  We consider that Mr Graham’s conduct was unprofessional conduct that was substantially below the standard reasonably expected of a registered paramedic of an equivalent level of training or experience.  The conduct was professional misconduct within the meaning of paragraphs (a) of the definition.  We further consider that Mr Graham’s conduct was inconsistent with him being a fit and proper person to hold registration in the profession of paramedicine, so that it was professional misconduct within the meaning of paragraph (c).  

The Board submits – and Mr Graham agrees – that we should reprimand him and impose conditions on his registration.  It emerged during Mr Jellis’ [counsel for the Board’s]submissions that, in addition, the Board had contemplated seeking cancellation of Mr Graham’s registration but was mindful of his rehabilitation, insight and remorse.  Instead, the Board submits that we should suspend Mr Graham’s registration for the period of 12 months.  On the other hand, Mr Graham submits that in the circumstances we discuss below, including that his registration has been suspended since June 2020, we should not suspend his registration now.

VCAT agreed with the Board and imposed a further 12 months suspension even though Mr Graham had not practised since June 2020 and done all that he could to, and has effectively dealt with, his addiction issues.

At [56] the Tribunal said:

… suspension by way of immediate action has a different purpose to suspension ordered in a disciplinary proceeding… while the National Law does not expressly provide for a responsible tribunal to ‘backdate’ a suspension or give a practitioner ‘credit’ for time out of practice, a tribunal will have regard to all the relevant circumstances, which include time out of practice.

Even so the Tribunal did impose a further 12 month suspension.  They said (at [66]-[68]):

We accept Mr Jellis’ submission to the effect that a substantial period of suspension is necessary in order to serve the interests of general deterrence and to maintain public confidence in the profession of paramedicine.  We accept the submission that the seriousness of Mr Graham’s conduct and the corresponding need for specific and general deterrence are illustrated by the following matters.  As a health practitioner, Mr Graham ought to have known the risks to others of his drug taking as well as how to access treatment or help.  He put other people at risk, including patients, road users and his work colleagues.  He falsely denied the true extent of his drug use at the time workplace drug tests were administered.  Mr Graham’s conduct did not cease until it was detected.  The quantity of drugs detected in Mr Graham’s system in June 2020 was significant.  Even after his drug use was detected, Mr Graham evidently continued to use cannabis for a period of time (in 2020).  Mr Graham’s drug use was not isolated but involved numerous substances consumed over many years.

In our view, specific deterrence [ie a penalty to deter Mr Graham from further offending] is important but general deterrence [ie a penalty to communicate to others how serious this conduct is seen in order to deter others from similar conduct] is a more important consideration.

… we say in the present case that there is a critical need for general deterrence.  By our determinations, we intend to signal to the paramedicine profession that serious adverse consequences will follow conduct of the kind that Mr Graham engaged in.  It was conduct that put at risk not only patients but also members of the public and Mr Graham’s professional colleagues.  By our determinations we seek to deter others from the same conduct, in the interests of maintaining professional standards and public confidence in the profession. But we also seek to encourage other practitioners of paramedicine to do what the Code exhorts them to do if they know or suspect that they have a health condition or impairment that could adversely affect their judgement or performance or a patient’s health. They should not rely on any assessment they might make themselves of the risk they pose to patients and other persons.  They should obtain professional help and advice.

Finally at [78] they said:

Mr Graham is to be commended for everything that he has done towards his rehabilitation.  He has demonstrated insight and contrition and a determination to remain fit for a return to practise.  We have concluded that the 12-month suspension sought by the Board is necessary, without being punitive or disproportionate or such as to impact negatively on his rehabilitation.  The suspension is designed especially to serve the interest of general deterrence and to maintain proper professional standards and public confidence in the profession of paramedicine.  We do not accept the submission on behalf of Mr Graham to the effect that, especially given Mr Graham’s time out of practice, a reprimand and conditions would be sufficient for these purposes.  

Discussion

Of course I am not in the position of the Tribunal members (J Billings, Senior Member; C Jones ASM, Member and E Rankins, Member) but I find it difficult to believe that the further 12 months suspension ‘is necessary, without being punitive or disproportionate or such as to impact negatively on his rehabilitation’.  Whilst the seriousness of his conduct cannot be doubted, the evidence of Mr Graham’s rehabilitation is to be commended and should be encouraged.  Given that he has already been out of the profession for 4 years it is hard to see what a further 12 months will achieve.

The only saving is that had they not imposed the suspension he would still not be able to practice as he now needs to deal with recency of practice. At [62] we’re told that:

Mr Graham detailed the inquiries he has made about enrolling in a suitable eight-week university course, which he understands he would be eligible to undertake in order to return to practice. It is not clear, however, whether he would be able to enrol this year or in the first half of 2025. As Mr Jellis noted, the impact of a 12-month suspension would be less for Mr Graham than it would be for another person who had their ‘work bag packed’.

The outcome is intended to, and should serve as a warning to other paramedics and health care professionals not to take drugs and if you find yourself relying on them, then to be alert to that and seek professional help.

This blog is made possible with generous financial support from the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), Natural Hazards Research Australia, NSW Rural Fire Service Association and the NSW SES Volunteers Association. I am responsible for the content in this post including any errors or omissions. Any opinions expressed are mine, and do not necessarily reflect the opinion or understanding of the donors.

Today’s correspondent asks about

… using the title “Paramedic” on a uniform by a visiting paramedic is likely an offence under the National Law.

The proposed situation is a paramedic from outside Australia, is completing an observation shift with the local emergency ambulance service. As such, they bring their local uniform to wear, which has “PARAMEDIC” prominently displayed on it.

The question then is, should steps be taken to inform any patient that the person was not an Australian paramedic, would this be sufficient to not be holding oneself out to be a paramedic?

For example, introductions could be made clearly indicating “Adam is a overseas paramedic and is shadowing us today”.

We also considered that the uniform may indicate in some way another country/ region (for instance have London Ambulance on it) and whether this would be a deciding factor.

But we were then unclear whether this would be sufficient to not be using the title or holding oneself out to be a registered paramedic in Australia, given the context of an emergency ambulance call.

The relevant provision in the Health Practitioner Regulation National Law (Qld) (which I use as the exemplar as my correspondent has not identified what state or territory they are writing from, and the Queensland Act is meant to be the model adopted in other states) says, at s 113

(1) A person must not knowingly or recklessly—

(a) take or use a title in the Table to this section, in a way that could be reasonably expected to induce a belief the person is registered under this Law in the health profession listed beside the title in the Table, unless the person is registered in the profession, or

The term ‘paramedic’ is in the table.  But could the use of the title ‘could be reasonably expected to induce a belief the person is registered under this Law’?  I would think if they are wearing their foreign uniform then it would not suggest that they are registered in Australia and there would be no offence.

Introducing the ‘ride along’ would help but would also be polite and consistent with the Code of Conduct of working with patients and making sure the patients understand why this person is in the ambulance with them.

Conclusion

I would think if the person was wearing an international uniform that would be sufficient to remove any suggestion that the term ‘paramedic’ on their uniform implied they were registered under Australian law.

This blog is made possible with generous financial support from the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), Natural Hazards Research Australia, NSW Rural Fire Service Association and the NSW SES Volunteers Association. I am responsible for the content in this post including any errors or omissions. Any opinions expressed are mine, and do not necessarily reflect the opinion or understanding of the donors.

Bucci v Ambulance Victoria [2024] FWC 1411 was another dispute between Ambulance Victoria (AV) and a staff member.

Mr Bucci is an Advanced Life Support (ALS) paramedic who applied for training to become a Mobile Intensive Care (MICA) paramedic.  To complete that training he had to complete some course work (which he did) and some on-road training. He was advised that to complete the on-road training he would be allocated to an ambulance station away from his home station.  To complete the training Mr Bucci has to be away from home for 4 days at a time.  He was offered ambulance accommodation but determined it was not suitable as it did not allow his family to stay with him so he rented private accommodation and claimed overnight travel/living away from home allowances ([1]-[5]).

AV denied liability to pay the allowances arguing (at [9] that ‘it was Mr Bucci’s choice to do the MICA traineeship course. AV had not required him to do it’ and that when he applied he had been advised his employment would be varied when it came to the on-road training to allocate him a branch to complete the on-road training. It was therefore argued that he was not required to live away from home and further his ‘home’ station, during the training was Geelong not Warrnambool.

 Deputy President Colman agreed. He said (at [12]):

… employees are entitled to receive the various allowances … where they are ‘required by their Employer to live away from home, to perform their duties’. I find that Mr Bucci has not been required by AV to live away from home. It was Mr Bucci’s decision to apply to be selected as a MICA trainee. He was not required to make an application or to accept the offer that AV made to him … Mr Bucci cannot now say that he was required by AV to live away from home.

Further (at [15]):

I consider that, at the times when Mr Bucci has been undertaking the on-road training in Geelong, his home for the purposes of clause 31.13 has been the branch in Geelong where this on-road training is performed… Although Mr Bucci retains his nominal position as an ALS paramedic based in Warrnambool, he is not currently serving in that position or at that branch.

The Deputy President concluded (at [17]):

Mr Bucci is not entitled to the allowances in clause 31.13 in respect of the periods spent undertaking the on-road training because he was not required by his employer to live away from home to perform his duties at these times. In any event, when undertaking on-road training, his home branch was in Geelong, not Warrnambool.

Conclusion

Members of AV will want to consider this judgment when making a decision to apply for MICA or other training that will require them to be away from their normal station or family.

This blog is made possible with generous financial support from the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), Natural Hazards Research Australia, NSW Rural Fire Service Association and the NSW SES Volunteers Association. I am responsible for the content in this post including any errors or omissions. Any opinions expressed are mine, and do not necessarily reflect the opinion or understanding of the donors.

Richardson v Ambulance Victoria [2024] FWC 1313 was a case before the Fair Work Commission to resolve a dispute between Mr Richardson and his employer, AV.

Mr Richardson is a MICA paramedic employed by Ambulance Victoria. He was the subject of a complaint and as a result was stood down from on-road duties. This occurred in September 2023.  The Union, on behalf of Mr Richardson filed a notice alleging that AV was not meeting the requirements of the Performance and Disciplinary Procedure set out in the Ambulance Victoria Enterprise Agreement 2020 ([1]-[4]).

The gist of the issue was that Mr Richardson, although employed as a MICA paramedic and MICA paramedic single responder, he was not being given the opportunity to perform the ‘principal duties or skill’ of that position.   The Agreement sets out the duties and skills of a MICA paramedic (eg ‘the principal duties that must be assigned to the employees within the classification –assessment, treatment, care and transport of emergency and non-emergency patients in a pre-hospital setting’ (cl 28.I(k)(b)) and then provides (cl 28.I(k)(d); emphasis added):

the conditions under which a MICA Paramedic may perform alternative duties which do not necessarily involve the employee providing emergency and/or non-emergency patient care in a pre-hospital setting – by agreement where those duties utilise the skills and knowledge of a paramedic.

Mr Richardson has not agreed to the alternative duties that he has been directed to perform.

AV argued that the power to relocate Mr Richards was part of its right to manage its business and to give reasonable directions to staff. They gave evidence that the complainant was a colleague and there was a risk of the two coming into contact if both working as paramedics. Rather than suspend Mr Richardson (noting a recommendation from the Victorian Human Rights Commission to consider ‘the negative impact on an employee’s mental health when suspended from work for the purposes of what are often lengthy investigations’ ([38]) AV had decided to allocate Mr Richardson to alternative duties rather than suspend him ([32]-[38]).  AV submitted ([41]-[42]):

… that the removal of the Applicant from the workplace in this context is unremarkable, and that it is common place when investigations are underway into serious allegations for employees to be suspended from work. Further, that the employer’s Suspension Policy expressly contemplates suspension from the workplace in the course of an investigation and that where an employer takes a bona fide view, that the continued performance of duty is inconsistent with its interests, it is entitled as a matter of contract to direct the employee not to perform work.

On this basis, it is the Respondent’s position that its decision to direct Mr Richardson not to perform duties pursuant to clause 28.1(k) and/or (l) constitute an exercise of reasonable management prerogative to appropriately manage risk in its workplace and is not restricted by the terms of the Agreement, statute or other instrument.

In resolving the dispute, Commissioner Connolly cited (at [52]) the decision in AMWU v Berri Pty Ltd [2017] FWCFB 3005 where the full bench of the Fair Work Commission said, inter alia:

The common intention of the parties is sought to be identified objectively, that is by reference to that which a reasonable person would understand by the language the parties have used to express their agreement, without regard to the subjective intentions or expectations of the parties…

If the agreement has a plain meaning, evidence of the surrounding circumstances will not be admitted to contradict the plain language of the agreement.

At [57] Commissioner Connolly said. (emphasis added):

… my interpretation of clauses 28.1(k) and (l) does not support the Respondent’s position that, objectively viewed, the plain meaning of these clauses do not prohibit Ambulance Victoria from allocating Mr Richardson to duties alternative to those of a MICA Paramedic or MICA Single Responder, without his agreement.

And at [94]:

I am of the view that the plain meaning of these words “may, by agreement” place a clear condition on the employer that to comply with Clause 28.1(k) and (l), Ambulance Victoria requires the agreement of a MICA Paramedic or MICA Paramedic Single Responder to not allocate them the principal duties set out in this provision but allocate them alternative other duties by virtue of this clause.

There are provisions to deal with disciplinary matters, in particular the suspension policy ‘provides a right to suspend an employee from duty in the event of allegations significantly serious in the employer’s view to warrant suspension. Clause 74 – “DISCIPLINARY PROCESS” also provides a right for the employer to “transfer” an employee in event of serious misconduct…’ but AV did not claim to be relying on these provisions. Rather it was relying on an overarching principle of management responsibility. That principle however had to be read subject to the agreement and the agreement limited the power to AV to allocate alternative duties to those cases where there was agreement between AV and the employee ([109]).

Conclusion

AV did not have the power to require a MICA Paramedic to perform work that did not involve the principal duties of the position without the consent of the paramedic.  If they wanted to take action under the disciplinary/suspension provisions they had to do that expressly.

 This blog is made possible with generous financial support from the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), Natural Hazards Research Australia, NSW Rural Fire Service Association and the NSW SES Volunteers Association. I am responsible for the content in this post including any errors or omissions. Any opinions expressed are mine, and do not necessarily reflect the opinion or understanding of the donors.

Today’s correspondent asks about a duty of care when recruiting. I’m told the story of

Two people want to join and attend a training or maintenance night.

Person A makes a statement which person B finds that sexually in appropriate and feels uncomfortable due to what occurred.

Where is the duty of care given that they are not members?  Do we have to act and in what capacity?

Additionally, what protections are in place if there was a complaint that involved a new potential recruit making an inappropriate comment to a member.

Any service has a duty to ensure that the meeting is a safe place. This duty is a duty to workers (which includes volunteers) and to those affected by the work of the service (model Work Health and Safety Act 2011 s 19(1)).  There is also a duty to ‘take reasonable and proportionate measures to eliminate, as far as possible … sexual harassment, or harassment on the ground of sex’ (Sex Discrimination Act 1984 (Cth) s 47C and equivalent state and territory legislation).

In the circumstances there would be a duty to take the complaint seriously which would probably require taking Person A aside to ask what happened and counsel them on what is appropriate behaviour. It may terminate their application for membership there and then.

Equally if a new potential recruit made an inappropriate comment to a member the same provisions would apply. There is a duty to ensure the workplace is safe and free of sexual harassment so it would be incumbent to address the issue and, as I say, that may be the end of the potential recruit’s application for membership.

This blog is made possible with generous financial support from the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), Natural Hazards Research Australia, NSW Rural Fire Service Association and the NSW SES Volunteers Association. I am responsible for the content in this post including any errors or omissions. Any opinions expressed are mine, and do not necessarily reflect the opinion or understanding of the donors.

Today’s correspondent raises issues of employee management. They say:

Clause 45 of the Ambulance Victoria Enterprise Bargaining Agreement specifies that:

“a) Subject to clause 45.1(b), the Employer may require an employee to work reasonable overtime (including incidental and full shift overtime) at applicable overtime rates of pay.

(b) An employee may refuse to work overtime in circumstances where the working of such overtime would result in the employee working hours which are unreasonable.”

Subsection(c) of this clause further stipulates that:  

“In determining whether the requirement to work overtime hours is unreasonable for the purposes of 45.1(b), the following must be taken into account by the employee and the Employer:

(i) any risk to the employee’s health and safety from working the overtime including previous overtime worked;

(ii) the employee’s personal circumstances including any family responsibilities;

(iii) the needs of the workplace or enterprise including the Employer’s primary function to provide pre-hospital care and transport in an emergency setting;

(iv) the notice (if any) given by the Employer of the overtime;

(v) the notice given by the employee of his or her intention to refuse to work any required overtime;

(vi) the usual patterns of work in the industry, or the part of an industry, in which the employee works;

(vii) the nature of the employee’s role, and the employee’s level of responsibility;

Ambulance Victoria frequently uses this section of the EBA to justify dispatching ambulance crews to call outs close to the end of the paramedic’s shift, likely resulting in overtime for the paramedics. In my experience, most paramedics do not mind attending to emergency cases close to end of shift. However, once paramedics are on scene they will find that whilst these patients require transport and assessment in hospital, the patients are not critically unwell and therefore paramedics may end up ramped at hospital waiting to transfer the patient well beyond their scheduled shift end time.

My question relates to whether these paramedics would have an argument to refuse to remain with the patient whilst ramped at hospital beyond the end of their shift (especially given that under sub-section (viii) above, the paramedics will have satisfied the employer’s primary function of providing pre-hospital care and transport). Could the argument be made that it is unreasonable for AV to expect the paramedics to be forced to remain at hospital beyond their shift time ending, given the fact that the patient has now been transported to hospital and their ongoing care should be a hospital responsibility. In my mind it seems more reasonable to expect that the ongoing care (post triage) of a patient who has been transported to hospital should be the responsibility of the hospital and not the paramedics who brought them there (and as such government should be funding sufficient nursing staff and equipment to care for patients whilst they’re awaiting for transfer to the ED, rather than expecting paramedics to do this)?

Of course, it would be better if the care of patients was transferred to the hospital, but clearly that is not a problem that is easily fixed, or governments would have fixed it, nor is it a solution that ambulance Victoria can implement. Ambulance Victoria runs the ambulance service, not the hospitals.  Ambulance Victoria cannot direct hospitals what to do but could do things like have crews report to the hospital to relieve overtime crews etc.  That, of course, requires resource allocations and I cannot comment on what factors AV considers when trying to deal with what is an identified and common issue across Australian health services.  It would also be better if governments (federal and state) fully funded adequate health services, but the allocation of resources are policy, not legal issues. Governments have many competing demands and it is up to them to decide how the government’s resources are allocated.

Given then that there is ambulance ramping could a paramedic refuse to do further overtime? That would depend on ‘the needs of the workplace or enterprise including the Employer’s primary function to provide pre-hospital care and transport in an emergency setting’.  They may have transported the patient, but they are still giving ‘pre-hospital care’.  It would also depend on ‘the notice given by the employee of his or her intention to refuse to work any required overtime’.  If you contacted co-ord and said ‘I’m going home’ that would not be reasonable; but it might be if you contacted co-ord and said ‘I have a commitment I have to be somewhere by [time]’ and that gave AV time to find someone to come and take over that might be reasonable. It would also depend on how long you are asked to stay, refusing to stay 15 minutes is probably not reasonable; refusing to stay 15 hours probably is.

For further discussion see:

• Ambulance ramping for 15 hours! (April 27, 2019); and
• Paramedics leaving patients in casualty (January 24, 2015).

This blog is made possible with generous financial support from the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), Natural Hazards Research Australia, NSW Rural Fire Service Association and the NSW SES Volunteers Association. I am responsible for the content in this post including any errors or omissions. Any opinions expressed are mine, and do not necessarily reflect the opinion or understanding of the donors.

Today’s correspondent says:

I recall you doing an article some time ago about tv reality shows based around paramedics etc. I commented recently (about 6 weeks ago) on a promo socials post by SA Ambulance for a show ‘Paramedics’. I expressed the dichotomy of PR and insight to the profession but it being unethical in terms of consent.

SA Ambulance Service responded to me online and their response was typical and interesting all the same. There was a small amount of support to what I was saying and most public comments suggesting that it was all above board because consent was likely obtained before going to air.

Interestingly, a patient who was featured in the episode to which I had commented on she expressed being rather overwhelmed by the ambulance crew and film crews.

A link to the online conversation was provided- https://www.facebook.com/share/p/cnWN7HZW1yaC9ybW/?

Indeed I did do an earlier post – see How are reality ambulance shows legal? (Updated) (October 9, 2018).  I stand by my position there.  I have no doubt that consent is obtained prior to the footage going out, but I fail to see how real, informed consent can be obtained to film during any incident and particularly any incident where time is of the essence.  Let me deal with the issue in detail.

An initial assumption

My initial assumption, that I hope is uncontroversial, is that we accept that interaction with our health professional is the ultimate example of where we expect confidentiality.  The codes of conduct for all the health professions stress the obligation on health professionals to protect patient confidentiality and there is a common law duty of confidence that arises in relationships where professional confidence is expected.   The combined Code of Conduct that applies to paramedics says at [3.3]

To protect privacy and confidentiality, good practice includes that you:

a) respect the confidentiality and privacy of patients by seeking informed consent before disclosing information, including formally documenting such consent where possible

b) provide surroundings to enable private and confidential consultations and discussions, particularly when working with multiple people at the same time, or in a shared space…

Consent

Consent needs to be obtained in at least, two stages. First consent to film the interaction and second, consent to use the material.  I’m not concerned with the second stage. On the Facebook commentary a person who was filmed confirmed nothing could be used without consent and she was very satisfied with the film company’s approach. All well and good.

My concern is obtaining the footage about someone who doesn’t consent to its ultimate use, or who is unable to consent.  The Facebook commentary says ‘people who are filmed would have been asked if they are ok with being filmed. It would all be above board’ and ‘from when they were with AV it was a quick informal consent asked by the TM on arrival then the crew came in with the camera crew and producers, later on in the journey a formal consent was signed and discussed with the patient…’.

But is that ‘quick consent’ real consent? The code of conduct requires ‘informed consent before disclosing information’ (and even having a clinical conversation in front of a film crew is disclosing information about the patient to the camera operator).  The person is having a medical crisis – it may not be life threatening but it is a sufficient crisis that someone has rang 000 for an ambulance.  We can, I think safely, infer that the caller’s main concern is the patient’s health and well-being. What they want is the assistance of health care professionals.  If those professionals turn up with a camera crew and ask, ‘can we film?’ there is a fundamental power imbalance. The patient wants the assistance of the paramedics – members of Australia’s most trusted profession – many will say ‘whatever’ because they want the care.   Where is the time to ask about the television production company’s privacy policy, what’s going to happen with the recorded material, who will have access to it etc?

As for patients in a life-threatening condition they don’t have the time or in many cases the capacity to give or refuse consent.  The person responsible can generally give consent to health care (see Consent to Medical Treatment and Palliative Care Act 1995 (SA) S 14B) but we’re not talking about the delivery of health care, we’re talking about recording the delivery of health care for the benefit of the production company, so that Act cannot be applicable to that decision.   A person’s enduring attorney may be able to give that consent, but they must exercise their powers ‘as attorney with reasonable diligence to protect the interests of the donor’ (Powers of Attorney and Agency Act 1984 (SA) s 7 (emphasis added)).  Allowing a TV crew to film the delivery of the health care is not being done to advance the patient’s interests and one could argue that there is a duty on the attorney to refuse consent to protect the patient’s privacy interests.  As for other family members at the scene, I am unaware of any legal authority that would allow them to give effective permission.

(As an aside I recognise that the filming may advance a patient interest. To again quote the Facebook discussion, a person who was the subject of one of these shows said, ‘A positive to the filming was that we as the family of the injured were able to get a clearer understanding of what happened to help with the recovery process.’  And if a patient alleges negligence or other improper conduct by the treating health care professional the video may be useful evidence one way or the other.  But I feel confident saying that the motivation behind the production of these programs is not to advance the patient’s interests, it is to advance the interests of the ambulance service, the production company and the TV station that will broadcast the show.)

If I am right then there is a serious issue to be argued that any consent obtained at the scene, is ineffective.  Not a problem if the person is happy to be part of the show but what of the person who does not want their footage used?

I think that person could point to the Code of Conduct and argue that by bringing the film crew in and being actively involved in the recording the paramedic has not put the patient first (Code of Conduct Principle 1) and has not delivered ‘Respectful and culturally safe practice for all’ (Principle 3).

Surveillance devices

There is also the issue of cameras mounted in the ambulance (or in other shows, on the wall of an emergency department treating area).  I do not know if these are recording all the time or if they are turned on and off, and if so by whom.  Let us assume they are on all the time because if they are not they would miss good footage. Even the case that doesn’t look like it will be of interest to the TV audience but may become so because of something said or done in the ambulance eg the patient goes ‘downhill’ and there’s good footage of the paramedic identifying that and taking action to deal with what has become an emergency.   

The Surveillance Devices Act 2016 (SA) s 4 says:

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

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

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

A similar provision applies to optical surveillance devices (ie cameras) (s 5). The conversations take place between the paramedics and the patient. The TV production crew are not parties to the conversation but are recording those private conversations.

There is an exception for recording ‘in the public interest’ (s 6).  It is trite to say that what the public is interested in is different to what is in the public interest. Recording interactions, particularly one’s that are not consented to or which cannot be consented to, for potential use in a TV production, is not in the public interest.

A person can record a private conversation if ‘the use of the device is reasonably necessary for the protection of the lawful interests of that person’ but these recording are not the protection of the lawful interests of either the paramedics involved or the TV production company.

Further the Act makes it an offence to ‘use, communicate or publish information or material derived from the use (whether by that person or another person) of a surveillance device’ (s 12).  One might of course argue that if it’s not used, there’s no problem. But if the material is recorded and then shared with members of the production crew eg to decide if there’s material that they want to use than that information is being communicated to those people involved in the production and perhaps editing decision.  If there’s a meeting between the ambulance service staff and the production staff where they review cases to see what might be of interest that itself would be sharing the information and breaching the patient’s confidentiality – and this long before a decision is made to actually broadcast the material.

When it comes to body worn cameras, there has had to be significant legislative change to allow police and others to wear them – see

• Body cameras for Victorian paramedics (December 19, 2016);
• Body cameras for Victorian paramedics No. 2 (November 25, 2017); and
• Body cameras for NSWAS – implications for others? (December 6, 2019).

On some of these shows the paramedics appear to be wearing body worn cameras. It is not clear if they are issued by the service for its own purposes or provided by the production company for getting footage for the show; or whether they are provided by the ambulance service, but the footage is shared by the ambulance service. Either way there has had to be significant law reform to allow their use both by paramedics and police but those reforms do not extend to capturing footage for broadcast.

Again, if the patient’s happy to be involved, no problem. But if they’re not?

Privacy principles

The Australian Privacy Principles are set out in the Privacy Act 1988 (Cth).  Privacy principle 6 says:

If an APP entity holds personal information about an individual that was collected for a particular purpose (the primary purpose), the entity must not use or disclose the information for another purpose (the secondary purpose) …

The Commonwealth Act applies in the SA health care context by operation of the Health Practitioner Regulation National Law (SA) s 213.  Where a paramedic asks a patient about their condition or history, they are collecting that information for primary purpose of providing health care to the patient. Recording that information for the benefit of the TV producers is a secondary purpose.  The use for a secondary purpose is permitted if ‘he individual has consented to the use or disclosure of the information’ (Principle 6.1(a)) but as I have argued above, the idea that any consent obtained at the scene is a real consent is at least doubtful.   And if the person was recorded when they could not consent but is then approached to ask if they would consent to the use of the information then one can infer the information has already been used for the secondary purpose of making an assessment about the value of the story, and that is already a breach.

A work health and safety issue?

Another consideration is the impact on the paramedics workload. An article recently came across my desk: Malone DF, Sims A, Irwin C, Wishart D, MacQuarrie A, Bell A, Stainer MJ. Lights, Sirens, and Load: Anticipatory emergency medical treatment planning causes cognitive load during emergency response driving among paramedicine students. Accid Anal Prev. 2024 Jun 2;204:107646. doi: 10.1016/j.aap.2024.107646. Epub ahead of print. PMID: 38830295.

This article discusses how ‘high cognitive load negatively affects driving performance, increasing the risk of accidents, particularly for inexperienced drivers’. Their study suggests ‘that contemplating cases and treatment plans may impact the safety of novice paramedics driving ambulances for emergency response’. Adding the further cognitive load of being filmed and then dealing with the film crwe on the scene must surly add to the stressors already facing paramedics with a risk when driving and, potentially, a risk in the delivery of care.  

So how do they continue?

Shows like this have been around for many years – with access to hospitals and ambulances, so if I’m right, how do they keep going?

There are a few possible answers to this question:

1. I’m wrong, and there is legal justification and authorisation for the whole process from start to finish and I just don’t know what the legal justification is or I’ve made erroneous assumptions about the process; or
2. As I like to say, the law is not ‘self-executing’.  Just because there is a breach of the law doesn’t mean anyone is going to do anything about it. It is a shock to realise that law is a self-help tool. It’s there but an aggrieved person has to do something about it, to make the complaint to AHPRA or the Privacy Commissioner or the police or take their own action in court.  And that is complex, traumatic and if you’re going to take legal action, expensive.  And if you make a complaint to an agency, they have to prioritise it against the other issues they face and are no doubt under resourced to pursue. And it may not be considered the most urgent particularly if the service apologises and all footage is deleted; or
3. As said on Facebook, “… the production company responsible …are consummate and caring professionals who care deeply about the patients’ well-being during and after” and they have managed to keep the customers satisfied. And perhaps people who have objected to being filmed have been satisfied by assurances that the footage will all be deleted so that they don’t feel the need to take it further.

Conclusion

I understand why the ambulance, health services and TV stations like these shows. As SAAS says in the Facebook discussion:

The show is incredibly popular and shines a light on the incredibly tough job our heroes in green do, plus, it can really serve as an amazing education piece for road safety, cardiac events and much much more.

That doesn’t make it legal. If there’s a breach of the Surveillance Devices Act or the Privacy Act then there’s a breach no matter the positive outcome.

As for paramedics, doctors and nurses, personally I expect them to take steps to protect my privacy and the confidentiality of our interaction.  I think a paramedic who agrees to take part in the show is in clear breach of the Code of Conduct [3.3]. They should understand that the power imbalance and the patient’s need to obtain care means they are not in any position to consent to being filmed nor to give ‘informed’ consent to the sharing of information. By agreeing to invite a camera crew in, working in an ambulance with cameras installed or wearing bodyworn cameras to capture footage for possible use in a TV show then neither they, nor the ambulance service are providing ‘surroundings to enable private and confidential consultations and discussions…’

To reiterate I’m not concerned with the person who is happy to be part of the show who consents to sharing the information with the world. I’m concerned with the process of sharing the information with the film crews and the producers who have to decide what they want to use when the person could not consent or was unable to give informed consent and who objects to the fact that they were recorded even if that footage is never broadcast.  I expect that one day (and that day may be the day that an ambulance crew turns up at my door with a TV crew) there will be a complaint to AHPRA.

This blog is made possible with generous financial support from the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), Natural Hazards Research Australia, NSW Rural Fire Service Association and the NSW SES Volunteers Association. I am responsible for the content in this post including any errors or omissions. Any opinions expressed are mine, and do not necessarily reflect the opinion or understanding of the donors.

Today’s correspondent has:

… a question surrounding mandatory reporting. If a registered health care professional volunteers their time in a community organisation (non-clinical) and they hear a child make a disclosure… is it adequate for the clinician to follow the organisations reporting channels or is the clinician (who is not in a clinical capacity) still required to make their own report? I got asked this question and I didn’t know how to answer it. This question was asked in QLD.

This is mandatory reporting under the Child Protection Act 1999 (Qld), not mandatory reporting under the Health Practitioner Regulation National Law.

The Child Protection Act says that a ‘relevant person’; that is:

(a) a doctor;

(b) a registered nurse;

(c) a teacher;

(d) a police officer who, under a direction given by the commissioner of the police service under the Police Service Administration Act 1990, is responsible for reporting under this section;

(e) a person engaged to perform a child advocate function under the Public Guardian Act 2014; [or]

(f) an early childhood education and care professional.:

is required to report a ‘reportable suspicion about a child in the course of the person’s engagement as a relevant person’ (s 13E(3)).   A ‘reportable suspicion’ is (s 13E(2)):

… a reasonable suspicion that the child—

(a) has suffered, is suffering, or is at unacceptable risk of suffering, significant harm caused by physical or sexual abuse; and

(b) may not have a parent able and willing to protect the child from the harm.

The first thing to note is that it’s not all registered health professionals. There are 15 registered health professions, but s 13E only applies to medical practitioners and nurses.  For those professionals the obligation to report arises if they form the ‘reportable suspicion’ ‘in the course of the person’s engagement as a …’ medical practitioner or nurse. What follows is if they form the belief whilst volunteering in another role, eg volunteering as part of their child’s sport team then the mandatory reporting obligations do not apply and it would be ‘adequate for the clinician to follow the organisations reporting channels’.

Where reporting is not mandatory, anyone can report a concern to the Chief Executive of the Department of Child Safety, Seniors and Disability Services (see s 13A).

This blog is made possible with generous financial support from the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), Natural Hazards Research Australia, NSW Rural Fire Service Association and the NSW SES Volunteers Association. I am responsible for the content in this post including any errors or omissions. Any opinions expressed are mine, and do not necessarily reflect the opinion or understanding of the donors.

In United Firefighters’ Union of Australia v Honourable Jaclyn Symes (No 2) [2024] FCA 510 the United Firefighters’ Union (UFU) challenged the power of the Minister to give directions to Fire Rescue Victoria (FRV) on how FRV was to respond in an ongoing industrial dispute.

FRV and the UFU were engaged in negotiations to establish ‘an independent registration board, the apparent purpose of which being to maintain a register of personal and training details (perhaps amongst others) pertaining to Victorian firefighters’ ([15]).  The UFU established the Victorian Professional Career Firefighters Registration Board Limited (the Board) and continued negotiations with FRV on arrangements to be made between the Board and FRV.  Issues that could not be resolved between the parties turned on whether any agreement would be between the Board and FRV or between the Board, FRV and the UFU.

Ministerial consent was not required

Under s 25A(3) of the Fire Rescue Victoria Act 1958 (Vic), FRV needed the Minister’s consent before

(a) entering into any agreement or arrangement with any person or body for the provision of goods or services by Fire Rescue Victoria; or

(b) forming, participating in the formation of, or becoming a member of a body corporate, association, partnership, trust or other body; or

(c) entering into any joint venture agreement, shareholders agreement or unitholders agreement.

The Minister wrote to FRV indicating that in her view the proposed agreement with the Board required her consent which would not be forthcoming ([22]).  Section 8 of the Fire Rescue Victoria Act provides that FRV is ‘subject to the general direction and control of the Minister’ and that the Minister ‘may from time to time give written directions to Fire Rescue Victoria and the Fire Rescue Commissioner’. The Minister followed up on her letter denying consent under s 25A with a s 8 direction that FRV was not to enter the proposed agreement with the Board ([24]).

The UFU argued that the Minister’s intervention were not authorised by the Act and was an attempt to coerce FRV over how it exercised its right to settle a dispute with it employees. This was said to be contrary to the Fair Work Act 2009 (Cth) s 343.

The issue before the court turned on whether the Minister’s letter withholding consent to any agreement, or the direction not to enter the agreement was permitted by the Fire Rescue Victoria Act.  If either was, then it was not coercion but the legitimate exercise of her statutory powers and authority.

The UFU argued that Ministerial consent was not required to enter the proposed agreement because the agreement did not involve the provision of services by FRV nor did it involve FRV becoming a member of the incorporated board.  Justice Snaden, in the Federal Court of Australia, agreed and held that the Minister’s consent was not required under s 25A(3)(a).

His Honour also found that even though FRV was negotiating with the UFU on the terms of agreement with the Board, the actual creation of the Board was something that had been done earlier. His Honour said (at [88]):

There is no basis upon which the court might properly construe “formation” in s 25A(3)(b) of the FRV Act in a way that extends, in the case of Victorian Professional Career Firefighters Registration Board Limited, to activities that were to be engaged in several months after it was incorporated.

Entering into a contract with the Board after it had been established did not constitute ‘forming, participating in the formation of, or becoming a member of a body corporate…’  The Court agreed that the Minister’s consent was not required.

The Minister’s direction

With respect to the direction under s 8, the UFU argued the Minister could not use s 8 to impose conditions on FRV’s freedom to contract where her consent was not required, that is she could not use s 8 to ‘get around’ the limitations in s 25.  His Honour disagreed. He said (at [102]-[103]):

Section 8 of the FRV Act confers upon the Minister a general power to give directions to FRV (and a corresponding obligation on the part of FRV to follow them). Expressly reserved by s 8(1) is a general power on the part of the Minister to give directions about “the exercise of powers of [FRV]”. … it is plain beyond doubt that s 8(2) is intended to confer upon the Minister a power to give directions in relation to the exercise of FRV’s statutory powers. Necessarily, that must include the powers conferred by s 25A(1) and (2)—specifically, the powers to do things, including without ministerial consent.

The fact that FRV has powers that it may exercise without ministerial consent is not a matter that requires any reading down of the Minister’s powers under s 8 of the FRV Act. The absence of a need to obtain consent to do something is one thing. Subjection to a general power of direction is something else entirely…

Even so the Minister may not make directions about ‘operational functions and powers’ (s 8(3)). The UFU argued that the decision to enter a contract with the Board about registering appropriately qualified firefighters. The UFU argued (at [107):

… that the reference in s 8(3) of the FRV Act to “operational functions and powers” is properly understood as a reference to functions and powers that pertain to the prevention and suppression of fires. The power to regulate the registration of professional firefighters, it says, is something so integral to that overall operational purpose as to itself qualify as operational by nature.

The Act does not define what is an ‘operational function’ or ‘power’ so it was up to the court to define the distinction between what is ‘operational’ and what is not. At [114] His Honour said:

Although, admittedly, the issue is not free from doubt, it appears … that what separates FRV functions and powers that are “operational” from FRV functions and powers that are not “operational” is a question of proximity; specifically, proximity to the core FRV functions of fire safety, prevention and suppression. … it appears that operational functions and powers are functions or powers that are directed immediately (or at least sufficiently proximately) to the provision of fire safety, prevention or suppression services. In other words, an operational function or power should be understood as one that, if interfered with, might visit an immediate negative impact upon FRV’s capacity to discharge its essential functions.

Whilst it is ‘not easy to draw a bright line’ between an operational function and a non-operational function, His Honour was satisfied that in this case the decision to enter a contract with the Board was not ‘operational’ and therefore could be the subject of a Ministerial direction.  His Honour said (at 116):

Here, what was proposed was an exercise of FRV’s power to enter into an agreement with a third party for the provision of services.  More specifically, FRV was contemplating an exercise of its power to enter into an agreement to establish a registration board and to regulate the provision of its registration services.  Neither the function of such a board nor the character of the services so provided are sufficiently (which is to say immediately or proximately) integral or essential to the function of fighting or preventing fires (or otherwise promoting fire safety).

Because the Minister’s direction under s 8 was lawful it could not be ‘coercion’ but the issue of the Minister’s letter, refusing consent when consent was not require, remained open. The court said that the letter could only amount to coercion if it ‘was unlawful, unconscionable or illegitimate’ ([128]).

The court, after reviewing the legal authorities, held that unlawful meant ‘forbidden by law’ ([156]). The Minister had written a letter implying that she had the right to withhold consent and that her consent was in fact required. In this she was mistaken but ‘Generally speaking (and acknowledging that there are exceptions), the law does not forbid people from writing letters, nor from mistakenly asserting that they possess certain powers. Here, the worst that can be said of the Minister’s conduct is that it was not authorised under the FRV Act’ ([156]).

The Minister’s belief about the need for her consent and her power to withhold that consent were wrong but not ‘unconscionable’, nor was it ‘illegitimate’.  His Honour said (at [174]):

… the Minister’s conduct, though premised upon a mistaken assumption of power, was nonetheless a good‑faith endeavour to exercise authority under a statute so as to prevent FRV from entering into a contract that risked visiting consequences that the Minister regarded as unacceptable.  So understood, it cannot be said that there was any want of proportionality as between the Minister’s lawful conduct and the interest that she hoped to advance by it.

For the purposes of assessing whether it might qualify as coercive for the purposes of s 343(1) of the FW Act, I do not regard the Minister’s conduct to have been relevantly illegitimate…

The Minister was mistaken about s 25A.  She did not want FRV to enter into the contract with the Board. As the minister she had a legitimate interest in the matter and the power to direct FRV under s 8.   Writing the letter to FRV clearly indicated her views on how they should resolve or more importantly, not resolve the issue with the UFU and the Board but her belief that her consent was required, and therefore her belief that she could withhold that consent was wrong but not ‘unlawful, unconscionable or illegitimate’ and therefore did not amount to unlawful coercion.

The UFU’s request for declarations as the unlawfulness of the Minister’s conduct was denied.

Discussion

The case gave rise to an interesting discussion of the Minister’s power to give directions under s 8 and what is or is not an operational power.

What is interesting but is not explained is what is to be the role of the is registration board. The FRV Act already provides for the creation of a Firefighters Registration Board (s 149).  This Board is required by s 154:

(a)     to administer the Firefighters Registration Scheme;

(b)     to perform the registration functions prescribed by the regulations in relation to—

(i)     maintaining the Firefighters Register; and

(ii)     including on the Firefighters Register persons who satisfy the competency requirements for inclusion on the Register;

(c)     to perform functions in respect of setting professional capability and standards, including but not limited to—

(i)     the recognition of qualifications and accredited courses of training, including through certificates or other evidence in relation to those matters from professional organisations, higher education bodies or post-secondary technical or vocational educational institutions; and

(ii)     the establishment and approval of competencies that will satisfy the requirements for inclusion on the Firefighters Register; and

(iii)     the development, establishment and maintenance of guidelines about appropriate standards;

What this other Board is required to do is not made clear. At [83] the judge quotes from FRV’s submissions that said:

During the period from at least early 2021 until 17 August 2022 (when the Minister sent the Letter to FRV), representatives of FRV and representatives of the applicant were taking steps with a view to establishing a firefighters registration board that would operate separately to the Statutory Board, given the limited functions of the Statutory Board. The purpose of the proposed firefighters registration board was to register professional career firefighters employed by FRV with the appropriate qualifications, competencies and operational experience specific to the ranks covered by the 2020 Agreement — that is, to ensure firefighters were capable of performing the roles they were employed by FRV to perform.

One of the reasons the Minister gave for withholding her consent to FVR entering into an agreement with the Board was (at [22]):

The potential for duplication between the functions to be performed under the Services Agreement and those to be performed by the Board established by section 149 of the FRV Act (Statutory Board) may create confusion and undermine the legislative objectives of the Statutory Board.

One would have to go through the Act with a fine-tooth comb to identified the ‘limited functions’ of the Statutory Board and why the UFU and FRV seem to think a second registration board is required.

This blog is made possible with generous financial support from the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), Natural Hazards Research Australia, NSW Rural Fire Service Association and the NSW SES Volunteers Association. I am responsible for the content in this post including any errors or omissions. Any opinions expressed are mine, and do not necessarily reflect the opinion or understanding of the donors.

The Queensland Minister for Police and Community Safety, the Honourable Mark Ryan and the Minister for Fire and Disaster Recovery the Honourable Nikki Boyd have announced that new emergency services legislation in Queensland has come into force. The legislation means that State Emergency Service and Marine Rescue Queensland are now formally established but now fall under the responsibility of the Queensland Police Service rather than Queensland Fire and Emergency Service. The Police Service also becomes responsible for coordination of Queensland’s disaster response.

You can read the Ministers’ media release here – https://statements.qld.gov.au/statements/100475

I will try to write my own review of the legislation, but it may take some time. In the meantime, see:

• Changes to Queensland emergency services announced (December 9, 2022); and
• New legislation for Queensland SES (December 6, 2023).

This blog is made possible with generous financial support from the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), Natural Hazards Research Australia, NSW Rural Fire Service Association and the NSW SES Volunteers Association. I am responsible for the content in this post including any errors or omissions. Any opinions expressed are mine, and do not necessarily reflect the opinion or understanding of the donors.

Today’s correspondent takes us back to the issue of the Queensland medical records viewer (see QAS paramedics accessing patient information via ‘The Viewer’ for ‘follow up’. (October 20, 2023)).  They say:

I am a paramedic with 20 years’ experience in an extended care role. I am really concerned about the use of The Viewer by paramedics. What I am finding is most paramedics, mainly the younger generation, now ask our communications staff for patient details to look up The Viewer prior to arriving on scene.  I have huge problems with this; firstly often they get diverted to another case therefor they have just accessed information for a patient they have no contact or business with. Secondly it creates a bias, and I am seeing many, many bad decisions being made based on their poor understanding. 

For example, a close friend who lives in my street with a lot of issues had attempted to take her life. I was off duty but providing care when the paramedic arrived, and I began giving a handover. She put her hand up and said, “It’s ok, don’t worry, I know what is going on I read The Viewer”, therefore missing critical information about this episode.  Second example a patient with long history of AF presents with chest pain and ECG changes typical of an AMI. The paramedic, having read The Viewer says that because other episodes did not end up being an AMI this would not be.

I feel they must be breaching legislation in some form. Do patients have some recourse if it is found under FOI that a paramedic accessed their record without actually ending up having attended the patient?

I rarely ever feel the need to use it as a paramedic there are some very few limited times where I have attended a complex presentation that I was not transporting and used it for risk mitigation but always explaining why to the patient not just acting like it’s my information to do as I please.

These are difficult questions. On first glance, it would seem looking up The Viewer before arriving would make good sense to inform the paramedics. Patients may be annoyed at having to relay information that could have been accessed prior to arrival.  But what does the legislation say?

In my earlier post I concluded that the terms of use say, in effect:

You may access and use the Application, to view, use and display the Content for your professional use when necessary, in accordance with the care or treatment of an individual by a Prescribed Health Practitioner acting in that capacity and in accordance with section 161C(2)(a) of the Hospital and Health Boards Act 2011 (Qld). You must not access or use the Application for any other purpose.

Section 161C(2) of the Hospital and Health Boards Act 2011 says:

A prescribed health professional must not access information contained in a prescribed information system unless—

(a) the information is necessary for the prescribed health professional to facilitate the care or treatment of an individual;

It cannot be the case that a practitioner can only access The Viewer where ‘the information is necessary for the prescribed health professional to facilitate the care or treatment of an individual’.  Taken literally that would mean a practitioner has breached the terms of access if they look to The Viewer and discover that there is no information necessary for the treatment of the patient, even though they thought there would, or might, be relevant information. (Of course, even finding no information relevant to the treatment of the patient’s current condition may be helpful).  I would infer that it must be appropriate to access The Viewer if the practitioner has reason to believe that access the information may facilitate the care or treatment of the patient.  But does that extend to a possible patient?

A paramedic proceeding en route would have reasonable grounds to believe that he or she will be called upon to treat the patient and informing themselves before they get there (subject to the examples given above) may improve their ability to treat the patient. On the other hand, the patient is not yet ‘their’ patient, and they are not engaged in caring for the patient. For all they know the patient may refuse treatment or transport or the information may be quite irrelevant. For example, if the patient is in cardiac arrest, or suffering life threatening trauma, is there past medical history relevant for the care that needs to be provided there and then?

It would be consistent with good paramedic practice to ask the patient if they are happy for the paramedic to look up the record and to discuss with the patient what the record shows and what it may mean for their care (see Paramedicine Board Code of Conduct Part 4: Working with Patients and in particular[4.1] Partnership and [4.2] Informed Consent). Where a patient has an ongoing relationship with their GP there may be a clear understanding that the GP is accessing the information. But an ambulance patient has never met the paramedic before so it would be more respectful to engage with them and to seek permission before accessing their record, even if some patients may be annoyed that the paramedics do not already have information that is available for that purpose.

I can see the argument that provided the practitioner has reasonable grounds to believe that they are going to be involved in the treatment of the patient and that access to the information is reasonable in anticipation of that then access is permissible. But, on balance, I think accessing The Viewer before accessing the patient and entering into a health care relationship with them is inconsistent with both the Code of Conduct and the terms of access.  Regardless of the merits, the legislation and the terms of access refer to accessing the information to treat a patient, and until the paramedic meets the patient there is no health care/patient relationship, they are not involved in the care of the patient and cannot form a view of whether access to the record ‘is necessary … to facilitate the care or treatment of [the] individual’ who is before them.

As for access affecting the care of the patient, paramedics need to remember that good paramedic practice requires them to (Paramedicine Board, Code of Conduct [1.1(a)], emphasis added):

assess the patient, taking into account their history, views and an appropriate physical examination where relevant. The history includes relevant psychological, social and cultural aspects, and available electronic records such as My Health Record.

Access to information on The Viewer may be relevant in the circumstances but cannot replace the need to assess the patient as they present.  A paramedic who fails to hear from the patient or those involved in their care, or to make their own clinical judgement of the patient’s current condition, informed but not guided by, the patient’s history may well fail to provide ‘reasonable care’ with the all the implications that may bring. 

If a paramedic does access the record, and if the patient is aggrieved about that, I suggest the remedy is not under FOI law. Improper access to The Viewer is a criminal offence (Hospital and Health Boards Act 2011 (Qld) s 161C) though I’m sure no-one would want to prosecute in the circumstances described.  A complaint to the ambulance service or the Health Ombudsman would probably be sufficient to make the point.

This blog is made possible with generous financial support from the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), Natural Hazards Research Australia, NSW Rural Fire Service Association and the NSW SES Volunteers Association. I am responsible for the content in this post including any errors or omissions. Any opinions expressed are mine, and do not necessarily reflect the opinion or understanding of the donors.

Today’s correspondent says:

Over the last couple of years, a number of large volunteer organisations in NSW have used The Voice to conduct a pulse check across their paid and volunteer staff. 

The sell to staff and volunteers was that these surveys are completed anonymously. It has come to light that one of these prominent volunteer organisations has used this “anonymous” survey feedback to instigate disciplinary action against staff and/or volunteers whom they believe made certain statements, in what was believed to be an anonymous survey.

This raises a question but more importantly a major consequence for said organisation:

Question: can an organisation legally use feedback from a supposed anonymous survey to instigate disciplinary proceedings against staff and/or volunteers?

Even if the answer is ‘yes’, as word spreads about what the organisation has done with this “anonymous” feedback, the organisation has done irreparable damage to the trust employees and volunteers now have in its executive and leadership structure, and the willingness for employees and volunteers to speak up.

I accept that if an organisation promises that feedback is anonymous, but it isn’t that will permanently damage the organisation’s standing and the value of any future survey. That is not however a legal issue, and I won’t take it further.

As for the legal question that’s difficult. Evidence law would give a court a discretion to exclude evidence that has been improperly obtained or in the circumstances would be unfair to the accused (see for example, Evidence Act 1995 (NSW) ss 137 and  90), but we are not talking about criminal proceedings and in most situations, the Evidence Act won’t apply (see The rules of evidence and a NSW RFS disciplinary panel (February 16, 2024)). 

Even where the Evidence Act does apply there is generally a discretion to use such evidence where it is crucial and where the alleged offending is very serious. If though an anonymous survey evidence is obtained of serious misconduct that poses a risk to the organisation or individuals (eg fraud, sexual offending, using agency resources to advance criminal conduct etc) then it would be incumbent on the organisation to use that information to start looking into the matter even if the survey answers could not be directly used.  That is if they put an organisation on notice of some serious issues, they cannot ignore them because the survey was anonymous and if they did ignore them it would defeat the purpose of the survey which is to invite people to anonymously report their concerns.  That is if a person or persons completing the survey says that they are not happy as they are subject to bullying by a named person then the organisation is not breaching rules of anonymity if they say ‘this has been reported by one or more people, we don’t know who but it is something we must investigate’.  That must be fine. 

What would also be fine is if they read the survey results and see someone has made a statement to the effect that they are damaging the organisation or are an unacceptable risk to others. The organisation may say ‘we don’t know who said that but if it’s true we need to work out what’s going on’ and then began an investigation that narrowed down the possible people to include, and perhaps only include, the person who wrote the survey. That does not deny that the survey was anonymous, but it triggered an investigation. And what is the point of the surveys if not to trigger action to resolve what’s reported?  If what is reported is general dissatisfaction or low morale, then the organisation wants to use that information to identify the problem and start the solution.  If what is identified is individual misbehaviour that poses a risk to the organisation or those in it that too, having been anonymously identified, has to be resolved. What is not fine is if the person completing the survey makes an admission and the organisation then says ‘You said this in your survey, and we are now investigating whether or not you are a fit and proper person to be in the organisation’. That would be a breach of confidence.

In short acting on what the survey reveals must be the expected or hoped for result of the survey and that does not breach confidentiality. Identifying who completed the survey from the survey, does. The critical question is what type of ‘disciplinary action’ is being take based on what type of statements?

It would not be fine to take vindictive or punitive action against someone who completed the survey honestly and is now being targeted for their opinion.  If for example someone wrote that ‘all the middle managers are useless’ then trying to work out who they were would be wrong; but equally that could hardly be a breach of any code. If the person is asked to give their opinion in an anonymous survey then they are doing what they are asked and I cannot see how that could warrant action against any code of conduct.

If we accept that that the organisation is identifying who completed the survey then that be a breach of a duty of confidentiality. That duty can arise where information is obtained in circumstances where it is expected that the information will be confidential. That would seem to apply here so there could be an action for damages or for an injunction to restrain the use of that information.  The Privacy Act requires organisations that collect personal data to use that data only for the purpose for which it was intended and if it was promised to be confidential then to use it in the way suggested would ] be a breach of the privacy legislation if the information was ‘personal’ information.

Conclusion

Assuming that the organisation can and does identify the author of the survey from their survey answers, and that there is action based solely on the answer then for an employee there would remedies under industrial law. Volunteers would certainly argue that the information cannot be used and that honest answers given in response to a request for those answers cannot amount to any breach of discipline. They may be successful in seeking a review of any decision on the basis that the use of the material was ‘unfair’ but that is both time consuming and costly.  If it can be proved that the material was collected for one purpose but used for another then the most effective remedy may be a complaint under relevant privacy legislation.

If on the other hand, the organisation identifies a problem from the survey so starts investigating the problem, then that is fine even if, in the course of the investigation, they find that the person who identified the problem is also the cause of the problem.

The biggest implication would be, as noted, no-one would ever trust the survey process again.

This blog is made possible with generous financial support from the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), Natural Hazards Research Australia, NSW Rural Fire Service Association and the NSW SES Volunteers Association. I am responsible for the content in this post including any errors or omissions. Any opinions expressed are mine, and do not necessarily reflect the opinion or understanding of the donors.

Daniels v NSW State Emergency Service [2024] NSWCATAD 118 (7 May 2024) involves the former commander of the Coffs Harbour unit of the NSW SES.  Mr Daniels was removed from the commander’s position following an investigation into allegations of misconduct.  In this application before the NSW Civil and Administrative Tribunal (NCAT) he sought a review of decisions made by the SES in response to his application to access records produced in the course of the investigation.

The Government Information (Public Access) Act 2009 (NSW) (the GIPA Act) works on the assumption that information held by a government agency, such as the SES, should be made available unless there is good reason to withhold the information.

The issue

In this case the applicant, Mr Daniels, made three applications for access to information.  The SES refused to respond to the initial applications on the basis that responding ‘would require an unreasonable and substantial diversion of the agency’s resources’ (GIPA Act s 60(1)(a)). Mr Daniels challenged that decision which in turn led to a mediation between the parties. The outcome of the mediation was that Mr Daniels would reduce the scope of the application, that is the amount of material being sought, and the SES would reconsider the application for the more limited information ([9]).  The Tribunal put the results of the mediation into orders. One of the orders was that the SES would ‘provide the applicant … with a schedule of the emails referred to in paragraph 34 of the affidavit of Christian Marin, including details of any attachments to the emails’ ([10]).  The affidavit said that the SES had identified 294 emails with 697 attachments that may have been relevant to the application as originally drafted (ie not the more narrow, revised scope of the application).

The SES gave access to some documents and refused access to others. With respect to a request for ‘Report or reports of Anthony Day relating to allegations of misconduct against the applicant’ the SES reported that there were no reports to be disclosed. Mr Day is ‘a Deputy Zone Commander in the Northern Zone for NSW SES’. The Northern Zone includes Coffs Harbour ([62]). The applicant challenged these decisions.

The decision

The Tribunal noted (at [53]) that it exercised a limited jurisdiction and its powers and functions were determined by the GIPA Act. The applicant had asked the Tribunal to ‘review the whole of the Agency’s conduct against ‘The Ethical Framework’ for the NSW public sector published by the NSW Public Service Commission and its core values of ‘integrity’, ‘trust’, ‘service’ and ‘accountability’.’ ([25]). This was beyond the Tribunal’s jurisdiction.

Reports by Mr Day

With respect to the reports of Mr Day the applicant argued that there must be such reports but that is not proof that there are reports.  The SES gave evidence of the search strategy it had adopted ([29]).  Senior Member P French said (at [58]-[59]), that the GIPA Act s 53:

… imposes a “reasonableness” standard in relation to the searches required to be undertaken by an agency, rather than any absolute or strict standard. Such searches must therefore be “logical”, “sensible”, “appropriate” and “fair” but are not required to be “extreme” or “excessive” (to illustrate using synonyms and antonyms). The reasonableness standard is an objective one. It is what a fair minded person possessing reasonable knowledge of the agency’s obligations and the circumstances of the case would consider reasonable. It is not the standard of an obsessive, mistrustful, perseverative, or belligerent observer …

It thus falls to the agency to establish … that it has carried out searches for government information within the scope of the access application in a logical way that has been fair to the applicant having regard to the object of the GIPA Act and the applicant’s … right to government information.

The Tribunal reviewed the agency’s decisions including reviewing confidential documents and determined that there was no evidence that documents matching the request – that is any report or reports authored by Mr Day existed.  Member French was critical of one aspect of the agency’s search strategy, that is they did not ask Mr Day directly if he had written any report or reports but he did not send the matter back to the agency on that basis, instead coming to the conclusion that:

… the evidence is sufficient to persuade me that the allegations and the investigation process did not involve Mr Day, such that there is an unlikelihood that he would hold a ‘report’ or ‘reports’ authored by him in relation to these matters that would not otherwise appear in the Agency’s records if they did exist. Remittal of this item would be a futility in these circumstances, and unreasonably prolong finalisation of the access request.

He was therefore satisfied that the agency conducted reasonable searches and if those searches did not produce any documents that matched the description of documents sought then there were no documents to produce.

The schedule of emails

After Mr Daniels challenged the outcome of his first applications, the parties agreed that the application would be narrowed, and the agency would go back and look for documents that met the narrower scope. It was also agreed that the agency would provide a schedule detailing the emails referred to in an affidavit. The Tribunal held that the production of that schedule was not a response to the GIPA application – that is the outcome of the mediation was in two parts. One, a narrower application that would be reconsidered and two, the production of the email schedule.  The agreement to provide the schedule of emails ‘operates independently of the remitted access request’ ([70]).

Because the production of the schedule and the decision to give access to some, but not all fo the emails, was not responsive to the GIPA application, the Tribunal had no jurisdiction to review the agency’s decision ([71]).  The Tribuanl also noted that the terms of the agreement had been that the agency would provide the schedule (ie a list) identifying the emails, not that it would provide complete access to each of those emails and each attachment ([72]).

The decision to withhold information

Although there is a presumption in favour of disclosure, information may be withheld when that is in the public interest. The Act sets out, in a table to s 14, factors that may be considered. The SES argued ([81]) that they withheld information on the basis that the release of the information would:

• ‘prejudice the supply to an agency of confidential information that facilitates the effective exercise of that agency’s functions’ (s 14, Table [1(d)]);
• ‘reveal a deliberation or consultation conducted, or an opinion, advice or recommendation given, in such a way as to prejudice a deliberative process of government or an agency’ (s 14, Table [1(e)]);
• ‘prejudice the conduct, effectiveness or integrity of any audit, test, investigation or review conducted by or on behalf of an agency by revealing its purpose, conduct or results (whether or not commenced and whether or not completed)’ (s 14, Table [1(h)]);
• ‘reveal an individual’s personal information’ (s 14, Table [3(a)]); and/or
• ‘contravene an information protection principle under the Privacy and Personal Information Protection Act 1998 or a Health Privacy Principle under the Health Records and Information Privacy Act 2002‘ (s 14, Table [3(b)]).

In short the SES sought to protect the confidentiality of those involved on the basis that if confidentiality could not be guaranteed people would not contribute to investigations and improper conduct may remain undetected (see [91]). At [93] the Tribunal said:

… I conclude on the evidence and submissions before me that the clause 1(d) consideration is properly engaged in this case. I am satisfied that the information at issue is confidential information which facilitates the agency’s complaint handling functions. I am also satisfied that the agency’s future ability to obtain this confidential information would be prejudiced if persons who are in a position to supply such information were to apprehend that it would be disclosed to a person in the position of the Applicant in a manner that would reveal their identity and opinions.

With respect to [1(e)] the Tribunal (at [100]) was:

… satisfied that the clause 1(e) consideration is engaged. The Investigation Report and refused emails clearly contain information related to consultation and deliberation conducted in relation to the complaint allegations and disciplinary process. The disclosure of this information would prejudice the proper exercise of the Agency’s complaint handling functions by deterring people with relevant information from participating in these processes lest their identity and opinions be exposed to a person whose conduct has been the subject of complaint. It would also inhibit officers with responsibility for conducting complaint investigations and disciplinary processes from obtaining advice and ‘thinking through’ issues with other relevant persons in writing because of the potential that these preliminary steps to a final outcome decision would be exposed to the person subject to the investigation/disciplinary process.

For s 14 Table [1(h)] to apply, Senior Member French noted that there was conflicting authority on whether the prejudice had to be to a particular investigation or whether the release of information might prejudice future investigations. He held that the agency had to demonstrate that the release of the information would prejudice the particular investigation and in this case they could not do that as the investigation and the disciplinary process had been concluded. He said (at [104]):

I cannot see how revealing the purpose, conduct or results of the Agency’s disciplinary investigation now could prejudice the conduct, effectiveness, or integrity of that investigation. That is because it has long since concluded. I am thus not satisfied that clause 1(h) is engaged in the circumstances of this case.

With respect to the claims that the release of the investigation report and the refused emails would release personal information, Member French said (at [105]):

The definition of ‘personal information’ … is capable of including complaints made about a person and the opinions or the person making the complaint. Information of this kind will be personal information of both the person subject to the complaint and the person who made the complaint…

He concluded (at [106]):

The Agency submits that the Investigation Report contains personal information about individuals in addition to the Applicant, including complaints made by some individuals, and the views expressed by individuals consulted about the allegations of misconduct against the Applicant or who have otherwise expressed an opinion about the Applicant in the context of the Investigation… Based upon my perusal of the Investigation Report and those emails I accept that is the case. The Agency further submits, and I accept, that merely redacting the names of the individuals contained in this information would not prevent their identity from being ascertained because the contextual information surrounding their name would reveal their identity to someone with knowledge of the organisation and its paid and volunteer personnel, such as the Applicant.

The Tribunal then had to weigh the competing interests both for and against disclosure. Senior Member French held (at [115]-[117]):

… In short summary, it is an essential function of an agency that it is able to receive and act on complaints of misconduct made against paid and volunteer staff in a manner which not only accords fairness to the subject of the complaint but also protects the privacy of any complainant or witness, and guards against the potential for retaliatory or some other form of adverse action to be taken against the complainant or witness by the subject person or others. If an agency could not protect information received or created during its investigative and deliberative processes from full exposure to a person subject to a misconduct inquiry there is a reasonable likelihood that this would deter complainants from raising allegations of misconduct which may be in the public interest, and witnesses from providing relevant information in relation to those allegations. At the least there is a risk they would be more guarded, and less candid, in doing so.

An agency also reasonably requires the freedom to obtain advice and feedback during the deliberative phase of an investigation to assist it to formulate a final position. There is a reasonable likelihood that the potential for exposure of information created during such a deliberative process, as distinct from its final outcome to the person subject to the investigation would inhibit and deter deliberation, potentially compromising the quality of decision-making on issues of organisational, and potentially, public importance.

The public interest test incorporated into s 13 of the Act requires the decision-maker to make a principled choice between competing values, where those values are incapable of reconciliation. In this case values related to the transparency of government information must be held subordinate to values related to the integrity of internal, and ultimately public, accountability processes.

Accordingly, the agency’s decisions to withhold certain documents, and its conclusion that it did not have any documents that matched a particular description was upheld.

Discussion

This decision is consistent with an earlier case reported in this blog also involving the NSW SES – see  Accessing information relating to complaints and disciplinary proceedings (September 28, 2018).

It is understandable that members who feel aggrieved by the process and the outcomes will want to know who said what and when and there is an obligation to ensure that they are ‘provided with sufficient information about the allegations made against them to ensure they have a reasonable opportunity to respond to the allegations’ ([86]) but that does not mean they have to be given access to every piece of information that has been received about them or the details of the thought process followed by those looking into the allegations.  There is a difficult balancing act between ensuring the respondent knows what is alleged and the need for an agency to be able to receive information and conduct its processes.  In this case the balance fell in favour of withholding certain information.

This blog is made possible with generous financial support from the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), Natural Hazards Research Australia, NSW Rural Fire Service Association and the NSW SES Volunteers Association. I am responsible for the content in this post including any errors or omissions. Any opinions expressed are mine, and do not necessarily reflect the opinion or understanding of the donors.

Today’s question came as a comment but warrants its own post. I’m asked:

Can a paramedic suggest to a patient at hospital  even before seeing a doctor that she needs to see a psychatrist????DO THEY HAVE ACCESS TO RECORDS ?   I BELIEVE WITH OUT knowing what my wife has been through  the botched treatment by a hospital. And medical. Profession over 8 yrs or more WE ARE STILL TRYING TO UNDO DAMAGE DONE  I believe she has crossed boundarys  with her option   a trainee ALSO  was with them AND may have over heard her comment…..your thoughts pls

There is clearly a lot of emotion behind this question. It is easier to answer it if we try and remove the emotion and re-format the question as:

Can a paramedic suggest to a patient at hospital – even before seeing a doctor – that she needs to see a psychiatrist? Do they have access to records? I believe without knowing what my wife has been through, the botched treatment by a hospital and medical profession over8 years or more. We are still trying to undo damage done. I believe she has crossed boundaries with her [opinion].  A trainee was also with them and may have overheard her comment. Your thoughts please?

The answer has to be ‘yes’.  The Royal Australian and New Zealand College of Psychiatrists says:

A psychiatrist is a qualified medical doctor who has obtained additional qualifications to practise in the specialty of psychiatry, and is registered by the Medical Board of Australia or the Medical Council of New Zealand.

So the question is asking whether a paramedic can suggest to a patient that they may need to see a specialist medical practitioner.  If we think of paramedic work as being equal to ambulance work, then we may think that paramedics treat patients and take them to an emergency department to be seen by an emergency physician (at least in major trauma centres; it may be a gp in a country hospital) and only doctors can know what to do.  But a paramedic is a health professional and today a paramedic can and should give advice based on their professional opinion. They may want to advise a patient that a trip to ED is not in their best interest and what they need to do is see their GP or ask for a referral to see a specialist – a cardiologist, a rheumatologist, a dermatologist etc.

Alternatively, a paramedic might, in discussion with a patient who is considering whether they need to go to hospital, give their advice that the patient should consent to transport because they need to see a specialist eg an orthopaedic surgeon, a radiologist, a cardiologist etc.  In either case a paramedic will be giving an opinion to assist the patient to make an informed choice about what course of action to take.

I infer that in this question the author has a view about psychiatrists.  It seems that the author is concerned that the paramedic’s suggestion that his partner needed to see a psychiatrist was unnecessary because she really have suffered as a result of inappropriate health care.

There is an adage I picked up somewhere, I cannot recall where, that says ‘Just because your paranoid, does not mean they are not out to get you’.  The point is that we shouldn’t dismiss the mentally ill or the deluded, there may still be truth in what they say.  (That is why judges have to spend so much time with unrepresented litigants who appear to be making non-sense claims to try and work out whether, underneath it all, there really is some merit to their claim. Just because they are deluded does not mean that there is no merit in their claim).

To return to our context, a person may be mentally ill but that does not mean that everything they say can be discounted. Equally, to reverse it ‘Just because they are out to get you, does not mean you are not paranoid’.   I’m not a mental health practitioner but I understand that mental illness can be caused by chemical issues in the brain and that is where medication can help, but also from traumas and impacts upon one’s life – think PTSD.  So a patient may well have had ‘botched treatment by a hospital and medical profession over8 years or more’ causing serious damage.  To say that such a person needs to see a psychiatrist is not the same as saying they’re wrong or a malingerer or making it up.  A person with a broken leg still needs to see an orthopaedic surgeon even though we know the cause of the injury.  A person with poor outcomes from hospital treatment and then trying to bring that to account may need to see a psychiatrist because those events may have had an impact upon their mental health.

The critical reference is the Code of Conduct.  That code requires paramedics to:

• assess the patient, taking into account their history, views and an appropriate physical examination where relevant. The history includes relevant psychological, social and cultural aspects, and available electronic records such as My Health Record;
• formulate, record and implement a suitable management plan (including providing treatment and advice and, where relevant, arranging investigations and liaising with other treating practitioners);
• recognise and work within the limits of your skills and competence, and refer a patient to another practitioner when this is in the best interests of the patient;
• practise within an evidence-based and patient-centred framework;
• communicate courteously, respectfully, compassionately and honestly with patients, their nominated partner, substitute decision-maker, carers, family and friends; and
• encourage and support patients to be well-informed about their health, and to use this information wisely when they are making decisions, caring for themselves and managing their health, including through informed consent processes.

Provided the paramedic has done this – ie formed the opinion that the patient may benefit from seeing a psychiatrist based on their assessment of the patient, are expressing a genuine opinion that is supported by an evidence base and where their practice is consistent with what may be expected of a practitioner with similar skills and experience, then they are just doing their job.

If, on the other hand, the comment is intended to be disrespectful, is intended to imply that the patient is not really unwell at all but overreacting or making up their complaints, is influenced by the paramedics own prejudices or a belief that the patient has contributed to their own condition then that would not be good practice and could be the subject of an appropriate complaint to the paramedicine board.  From the question asked we can make no determination about that one way or the other.

As for letting the trainee hear, the trainee is there to learn from their more experienced mentors. The trainee may be a university student on a placement, or they may be a recent graduate, now a registered paramedic but going through their employer’s intern program. Either way they are bound by the Code of Conduct and duties of confidentiality etc.  They are part of the health care team.  Allowing someone not involved in the patient’s care to overhear a consultation should be avoided but it’s not always possible (think of the curtains that divide the beds in an ED) and ideally patients should be asked if it’s ‘ok’ if a trainee is involved; but again, that is not always possible. In a public teaching hospital, it is expected that trainees (doctors, nurses and other health professionals) will work with patients. In an ambulance if the trainee is a graduate intern paramedic, they may be one of a two-person crew and a vital part of the treatment team.   Allowing the trainee to observe their mentor in practice is a key part of the training.

Conclusion

We don’t have enough information to form a conclusion in this case but, as a general rule, we can say that paramedics are health professionals. They have moved beyond the days of the ‘stretcher bearer’.  As part of the health care team it may be appropriate to give advice to a patient – it may be that the advice is ‘you don’t need to go to hospital but perhaps you can see your GP and discuss with them whether a referral to a psychiatrist would be in order’.  Or to say ‘I think you are really unwell and we should take you to hospital as you need expert help from a psychiatrist to ensure you are safe’ (or any multiple variations on those themes).  To say someone needs to see a psychiatrist is not to deny that they may have very genuine and serious needs and that they have suffered a serious traumatic event that would cause mental health issues in anyone.

Whether the opinion is appropriate depends on how it is formed and how it is communicated.  Done properly then yes ‘a paramedic [can] suggest to a patient at hospital – even before seeing a doctor – that she needs to see a psychiatrist’.

As for a trainee, if they are part of the treatment team it is appropriate subject again to consent being obtained if that is possible, for them to see and hear their mentor. That is how training works.

As I said there is clearly a great deal of emotion behind this question.  When we take it out and ask ‘can a paramedic suggest to a patient that they would benefit with a consultation with a specialist practitioner’ we can see the answer has to be ‘yes’ provided the opinion is formed and communicated in a way that is consistent with the Code of Conduct applicable to paramedics.

This blog is made possible with generous financial support from the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), Natural Hazards Research Australia, NSW Rural Fire Service Association and the NSW SES Volunteers Association. I am responsible for the content in this post including any errors or omissions. Any opinions expressed are mine, and do not necessarily reflect the opinion or understanding of the donors.

Today’s correspondent is:

… writing about a situation occurring in NSW Ambulance whereby Registered paramedics are witnessing statutory declarations for people applying for Sick leave and other types of leave.

Staff were advised in E-Mail that “Statutory declarations can be signed by a registered paramedic or nurse (so any of your colleagues).”

My understanding this that this has come from an incorrect interpretation of the Commonwealth Statutory Declaration witness criteria and that in NSW Only a Lawyer, Notary Public or a JP can witness a statutory declaration.

Have I missed something or is NSW Health privy to some piece of legislation outside of the Oaths Act 1900 that I’m not aware of.

There are two different forms of statutory declaration. One is under the Oaths Act 1900 (NSW); the other is under the Statutory Declarations Act 1959 (Cth).

New South Wales

Under a New South Wales law (Oaths Act 1900 (NSW) s 21):

The Registrar-General, a Deputy Registrar-General or any justice of the peace, notary public, commissioner of the court for taking affidavits, Australian legal practitioner authorised by section 27 (1) to take and receive any affidavit, a federal judicial officer, or other person by law authorised to administer an oath, may take and receive the declaration of any person voluntarily making the same before him or her…

I am not aware of any NSW law that would authorise a paramedic to administer an oath.

It follows that NSW paramedics cannot witness a NSW statutory declaration.  It is an offence to take and receive a NSW declaration without appropriate authority. The maximum penalty is a fine of 2 penalty units or up to 12 months imprisonment (s 21A).

The Commonwealth

Commonwealth statutory declarations must be made before a prescribed person (s 9).  A prescribed person is either (Statutory Declarations Regulation 2023 (Cth) r 6) is either:

a) a person who is enrolled on the roll of the Supreme Court of a State or Territory, or the High Court of Australia, as a legal practitioner (however described); or

b) a person who, under a law of the Commonwealth, a State or Territory, is currently licensed or registered to practise in Australia in one of the following occupations:

Architect

Chiropractor

Dentist

Financial adviser or financial planner

Legal practitioner

Medical practitioner

Midwife

Migration agent

Nurse

Occupational therapist

Optometrist

Patent attorney

Pharmacist

Physiotherapist

Psychologist

Trade marks attorney

Veterinary surgeon.

That list does not include paramedics even though it does include many (but not all) of the other registered health professions.  Other people authorised to take declarations are various prescribed officer holders including a:

Permanent employee of:

a) a State or Territory or a State or Territory authority; or

b) a local government authority;

with 5 or more years of continuous service, other than such an employee who is specified in another item of this Part

Ambulance NSW employees are staff of NSW Health (Health Services Act 1997 (NSW) s 67A). They are ‘employed … by the Government of New South Wales in the service of the Crown’ (s 115(1)).  Paramedics are therefore employees of the ‘state’ and if they are a permanent employee with 5 or more years continuous service then they are eligible to take a Commonwealth declaration.

A declaration is different to an oath. The fact that NSW Ambulance paramedics can take and receive a Commonwealth declaration does not mean that they are a ‘person by law authorised to administer an oath’ to bring them within the NSW Act.

Conclusion

NSW Paramedics who are permanent employees of NSW Health with more than 5 years service, can administer a declaration under the Statutory Declarations Act 1959 (Cth) but not the Oaths Act 1900 (NSW). Given the penalty for taking a NSW declaration without authority, paramedics asked to witness a declaration should be careful to ensure that the form they are presented with is the Commonwealth, and not the state form (and for an example of the Commonwealth form, see the NSW Justice of the Peace Handbook (2021), p. 30).  

This blog is made possible with generous financial support from the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), Natural Hazards Research Australia, NSW Rural Fire Service Association and the NSW SES Volunteers Association. I am responsible for the content in this post including any errors or omissions. Any opinions expressed are mine, and do not necessarily reflect the opinion or understanding of the donors.

In Health Care Complaints Commission v GGO [2024] NSWCATOD 50 (19 April 2024) the NSW Civil and Administrative Tribunal made orders disqualifying a former paramedic from seeking registration for at least 12 months following his conviction of two offences.

On 27 March 2020, the respondent, CGO was charged with three counts of sexual intercourse without consent. The offences were alleged to have occurred on 5 May 2019. His registration was suspended by the Paramedicine Council on 14 May 2020. On 29 September 2021 he entered a plea of guilty to a single allegation of sexual touching of another person without their consent.  On 26 November 2021, he was convicted and sentenced to a two-year community corrections order ([4]-[8]).

On 26 October 2021 the local court made an apprehended domestic violence order restraining the respondent’s behaviour for the protection of his wife.  On 9 April 2022 he was charged over conduct in breach of that order. He entered a plea of guilty and was sentenced on 31 January 2023 to a further 14-month community correction order ([9]-[12]).

On 20 October 2023 the Health Care Complaints Commission commenced proceedings seeking orders to cancel the respondent’s registration for ‘1-2 years’ ([13]).  The basis of the allegation was that the respondent was guilty of unsatisfactory professional conduct.

The Health Practitioner Regulation National Law (NSW) provides that a practitioner must notify AHPRA within 7 days of being charged with a serious offence (s 130(1)). Further, the Tribunal is empowered to suspend a practitioner’s registration where (s 149C):

… the practitioner has been convicted of or made the subject of a criminal finding for an offence, either in or outside this jurisdiction, and the circumstances of the offence render the practitioner unfit in the public interest to practise the practitioner’s profession;

The HCCC made a complaint (s 144(a)) that the practitioner had been convicted and that action should be taken under s 149C and that the practitioner had failed to report that he had been charged within the required 7 days.

The Tribunal reminded itself that the overriding reason for disciplinary measures is to protect the public (see [36]). At [41] the Tribunal said:

it is not a requirement of the National Law that there be a direct nexus between the occurrence of the offence [that the practitioner has been convicted of] and the professional role, however where there is no nexus a more careful inquiry into the public interest factors may be required. There may be instances in which ‘public interest’ is taken to encompass the goal of broader protection of the reputation and standing of the profession such that it is able to maintain the trust of the public. When health professionals are convicted of serious criminal offences involving violence, sexual assault or the sexual exploitation of children, for example, the public’s ability to entrust their care to those health professions may be imperilled if the convicted practitioner continued to practise…

The applicant, the Health Care Complaints Commission argued that the two offences showed:

… a disregard for the law and a disturbing pattern regarding the respondent’s attitude towards women. This is a relevant consideration in relation to both the Tribunal’s consideration of whether the circumstance of the offending render the respondent unfit in the public interest to be registered as a paramedic for the following reasons:

(a) the behaviour is inconsistent with the high standard expected of paramedics regarding understandings of consent, boundaries and respect for women, and as such may present a risk to future patients; and

(b) the nature of the conduct has the ability to diminish of public confidence in the profession if not appropriately condemned;

The Tribunal agreed and made the orders sought, suspending the practitioner’s registration for 12 months. The Tribunal also made orders restricting the publication of the practitioner’s name, and the name of the victims in order to protect the interests of his children. 

Discussion

One ground of the complaint was that the practitioner failed to report when he was charged. This was not, however, a case where had he come forward the result may have been different. The allegations were about serious offences including an offence of a sexual nature. Having been convicted it was always likely that his registration would be suspended. As the tribunal noted, where a paramedic is convicted of ‘serious criminal offences involving violence, sexual assault or the sexual exploitation of children’ then they can expect to have their registration suspended even without proof of any link between the offending and their professional practice.

This blog is made possible with generous financial support from the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), Natural Hazards Research Australia, NSW Rural Fire Service Association and the NSW SES Volunteers Association. I am responsible for the content in this post including any errors or omissions. Any opinions expressed are mine, and do not necessarily reflect the opinion or understanding of the donors.

Today I respond to a question with a ‘Goldilocks’ answer! The question relates to the:

…  newly established VRA State Rescue Group – Metro Squad; I recently expressed my interest in joining as a current GLR operator for another Volunteer Rescue agency as I would be moving to Sydney full time in the near future away from my regional unit. My issue is the following: after an information session, they informed me that the unit itself is not SRB accredited and that it is a unit that provides ‘surge’ capacity to their regional squads backfilling accredited stations. Now my issue is when I reread the SERM Act 1989 (NSW) after initially reading it going through my rescue course in the past, and I came across Part 3 Division 4 Section 53(2) today stating:

A rescue unit is required to be accredited even though—

(a)  it is a unit of the NSW Police Force, Fire and Rescue NSW, the Ambulance Service of NSW, the State Emergency Service, the NSW Rural Fire Service or any other government agency, or

(b)  it is a unit of a volunteer agency, or

(b1)  it is a unit comprised of persons from one or more emergency services organisations or other agencies, or

(c)  it carries out, in addition to operations for the rescue of persons, other operations such as the rescue of animals or the recovery of property.

I wanted to know whether you believe prospective volunteers would be at legal risk by joining this squad to conduct rescue operations as it is not an accredited unit but will be backfilling accredited units elsewhere. As when operating other unit vehicles are they at risk of legal repercussions as per the following section of the SERM Act?

(1A)  It is an offence for a person who is not a member of a rescue unit accredited under this Division to display, drive or operate a rescue vehicle.

Maximum penalty—50 penalty units.

My first answer to the question is ‘no, prospective volunteers would not be at legal risk by joining this squad or driving a rescue squad vehicle’ but that answer it too short.

My second answer is: NSW has extensive regulation of rescue set out in the State Emergency and Rescue Management Act 1989 (NSW) (the SERM Act).  The Act establishes the State Rescue Board which, amongst other things, is to make recommendations to the Minister regarding the accreditation of rescue units (s 48(h)). A rescue unit is ‘a unit (comprising a group of persons) which carries out rescue operations for the protection of the public or a section of the public’ (s 52). It is an offence to establish, manage or control ‘a rescue unit which is not accredited’ (s 53(1)). 

A organisation that operates a rescue unit (relevant to this question, the Volunteer Rescue Association or VRA) ‘is required to maintain a register of the personnel who comprise the unit’.  The register must be updated every 6 months (s 57).

Accredited rescue units are operated by Fire and Rescue NSW, Marine Rescue NSW, NSW Rural Fire Service, NSW State Emergency Service, NSW Volunteer Rescue Association, NSW Ambulance and NSW Police Force (see https://www.nsw.gov.au/emergency/rescue-and-emergency-management/state-rescue-policy/state-rescue-board-accredited-rescue-units).

With respect to the Metropolitan State Rescue Group, a press release dated 2 February says (emphasis added):

The new VRA Rescue NSW – SRG Metropolitan Squad will provide highly-trained and skilled operators ready to back-fill and support regional squads, and other emergency service organisations, during peak emergency operational periods to ensure continuity of service and capability…

The Squad will offer training across all facets across the rescue portfolio, including: General Land Rescue, Road Crash Rescue, Flood Rescue, Search and Rescue, Remote Piloted Aircraft Services, Search Dog Handling as well as an array of non-field roles.

Members from other agencies and all walks of life are encouraged to apply. They will have the opportunity to create their own volunteer career pathway with VRA Rescue NSW and stand up and deploy to regions at times that also suit their work and lifestyle.

Reading between the lines, and accepting my correspondent’s report that the ‘unit itself is not SRB accredited and that it is a unit that provides ‘surge’ capacity to their Regional squads backfilling accredited stations’ one can infer that it is not a rescue unit.  To repeat the definition, a rescue unit is ‘a unit (comprising a group of persons) which carries out rescue operations for the protection of the public or a section of the public’ (s 52; emphasis added).  This unit, I infer, provides rescue training but will not carry out rescue operations in its own right. This makes sense given that Fire and Rescue will be the primary rescue service throughout most of metropolitan Sydney (excluding marine and flood rescue where that is provided by Marine Rescue NSW and the SES, and some areas covered by NSW Police).  If the unit does not actually carry out rescue operations, it is not a rescue unit.

Organisations must however have the capacity to fill gaps and provide surge capacity. FRNSW for example constantly move people around to ensure that they have the capacity to meet community needs (see Fire Rescue NSW and taking appliances ‘off line’ (April 5, 2022)).  Those firefighters must be able to perform both fire fighting and where relevant rescue duties even if they are not normally assigned to that accredited rescue brigade.

With respect to driving my correspondent has quoted s 53(1A) which makes it an offence for a person who is not a member of a rescue squad, to operate a rescue vehicle. I think if there was ever an issue a court would accept that the members were members of the relevant rescue unit for the period that they were working for that squad. If, for example members of the VRA Rescue NSW – SRG Metropolitan Squad, were tasked to back fill a temporary shortage in an accredited VRA rescue squad then during that time they were members of that squad. The VRA could put that beyond doubt by notifying the SRB, in their six-monthly update, of the time the members were part of that squad.

But that answer is too long.

My third answer is that my correspondent has quoted s 53(1A) but there is also s 53(1B) which says:

(1B) It is a defence to any proceeding under subsection (1A) if the person who contravened the subsection had a reasonable excuse or lawful authority for displaying, driving or operating the rescue vehicle.

This section would protect a mechanic who was driving a rescue vehicle for the purpose of repairing it or testing it.  It would also protect a member of the Metropolitan Squad who was driving the vehicle as part of their duties with the VRA that operates the squad.

I think that answer is ‘just right’.

Conclusion

There is no legal risk in joining the VRA Rescue NSW – SRG Metropolitan Squad.  That squad is a training squad, not a rescue unit. There is no offence in providing training to people in a squad that does not carry out rescue operations.

When the members are ‘stood up’ as part of a surge capacity or to backfill when an accredited unit is short of members (perhaps members are on holidays or need to be taken off line for training) then those members become members of that unit, and that could be confirmed by the VRA reporting that staff movement to the State Rescue Board.  When it comes to driving a rescue vehicle, those members would have a ‘reasonable excuse’ and the ‘lawful authority’ from the VRA.

 This blog is made possible with generous financial support from the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), Natural Hazards Research Australia, NSW Rural Fire Service Association and the NSW SES Volunteers Association. I am responsible for the content in this post including any errors or omissions. Any opinions expressed are mine, and do not necessarily reflect the opinion or understanding of the donors.