Today’s correspondent refers me to

… issues of restraint by US police. One high profile case involves Elijah McLean who was restrained by police and sedated by paramedics with ketamine. Regardless of the dosage of ketamine, it raises an issue of paramedics sedating patients on the advice or request of police. In this case the police had been there first and had apparently painted a picture of Mr. McLean as being out of control and unable to be calmed. Following the sedation by the paramedics Mr. McLean has a cardiac event several minutes later and did not recover.

Police requesting sedation by paramedics is a common occurrence in many jurisdictions. This article: https://www.thecut.com/2020/06/elijah-mcclain-injected-with-ketamine.html  suggests it is too common in the US and suggests that paramedics, either knowingly or unknowingly are being used to transfer liability from police in the event of a poor outcome. While this article is commentary, is raises the issue of the decision making of paramedics in deciding to chemically restrain someone and the liability that creates for them. This article suggests that in the US paramedics are sometimes put in precarious ethical positions such as police demanding sedation or indicating it is the alternative to another non-lethal restraint such as a TASER.

While it is not suggested that this same dynamic between police and paramedics occurs in Australia regarding patient sedation, some of the same issues may arise. Could you comment on shared liability for patient outcomes in such situations requiring restraint in police custody. This is especially in light and the level of information paramedics have to make complex sedation decisions often in time-sensitive or dynamic environments.

Whilst I can understand that applying the answer, given the often close working relationship between police and jurisdictional ambulance staff, may be difficult, I think the legal answer is clear.

Paramedics are health professionals.  Every aspect of their job is to provide health care. The Paramedicine Board’s Code of Conduct for Paramedics says (at [2.1])

Care of the patient or client is the primary concern for health professionals in clinical practice. Providing good care includes:

a) assessing the patient or client, taking into account their history, views and an appropriate physical examination where relevant; the history includes relevant psychological, social and cultural aspects

b) formulating and implementing a suitable management plan (including providing treatment and advice and, where relevant, arranging investigations and liaising with other treating practitioners)

c) facilitating coordination and continuity of care

d) recognising the limits to a practitioner’s own skills and competence and referring a patient or client to another practitioner when this is in the best interests of the patients or clients, and

e) recognising and respecting the rights of patients or clients to make their own decisions.

All of that remains true whether the person is under arrest or not. A person who is under arrest can still consent, or refuse consent to medical treatment. Providing treatment without the patient’s consent is a battery, even if police ask the paramedics to provide the treatment.  (Noting that the situation may be different for prisoners under sentence see for example Crimes (Administration of Sentences) Act 1999 (NSW) s 73).

If the person is unable to consent that is they are unconscious, or so mentally ill or so intoxicated that they cannot understand the advice they are given and make a decision, then treatment that is clinically indicated in their best interests can be given (The doctrine of necessity – Explained (January 31, 2017)).  That doctrine does not justify treatment that is in the best interests of the arresting police or treatment that is not clinically indicated by the patient’s medical needs.

A paramedic administering any treatment without first assessing the patient and making his or her own assessment of the patient’s medical condition and the treatment required for that condition would be abrogating his or her professional responsibility and failing to act as a health professional.

Police don’t get to request or direct the type of treatment that paramedics give. They can request paramedic assistance if they think a person in custody needs health care. They don’t get to say what that health care will be so ‘Police requesting sedation by paramedics’ should be ignored. If the paramedic does not think sedation is clinically indicated, they should not administer it. If police demand ‘sedation or indicat[e] it is the alternative to another non-lethal restraint such as a TASER’ and a paramedic does not think sedation is clinically indicated he or she should say so and leave it to the police to decide if they believe they have the right to use alternative force. Weaponizing medical care, in effect giving police a weapon that they do not themselves have, should not be the role of paramedics.

I cannot see there is any shared responsibility or liability. Each is liable for the decisions they make. If police use force, whether a baton, capsicum spray, a TASER or a firearm they have to account for that decision and are (or we hope they are) accountable to law for that decision. They are entitled to use ‘reasonable’ force in arrest and ‘reasonable force’ if they believe their lives or the lives of others are in danger.

Paramedics are health professionals. They are expected to provide health care. That may involve advocating for patients (including those under arrest) eg by telling police to get off them and stop choking them; if they believe the patient needs transport to hospital they should say so, if they don’t think a patient’s condition warrants a particular treatment they should not give it. If they give treatment that is not indicated by the patient’s clinical position and consent (where the patient is competent to consent) then they can be liable for assault and/or professional misconduct. If they are of the view that the treatment (in this case sedation) is clinically indicated then they should give it and transport the patient to hospital. If they are aware that the patient/prisoner has been subject to violence that should affect their decision making where it is clinically relevant.

Conclusion

Paramedics are health clinicians. Every decision they make with respect to the treatment of a patient should be guided by that role and the ethics that inform health professional practice. They are not there to provide an extra weapon on the police arsenal. A police request to sedate a prisoner is an irrelevant consideration in a paramedic’s determination of treatment that should be administered.

Today’s correspondent asks:

Did you do a post by chance I might have missed on using ADF as guards in quarantine hotels and their powers? With the angst among public posters and commenters about how they should have been used to guard quarantine hotels as in NSW, it would be helpful to have the insight.

No I haven’t posted on this; but I can.

The Australian Defence Force can provide assistance to the Civil Authorities or Assistance to the Civil Community (DACC) (see The Australian Defence Force – Defence Aid to the Civil Community (DACC) and Defence Force Aid to the Civil Authorities (DFACA) (October 21, 2013)).

Defence Aid to the Civil Authorities is where the ADF deploys onto the Australian streets armed or at least with the expectation that they may use force. This is governed by the Defence Act 1903 (Cth) and the Australian Constitution.

The Constitution provides that the Commonwealth may make laws with respect to “the naval and military defence of the Commonwealth and of the several States, and the control of the forces to execute and maintain the laws of the Commonwealth” (s 51(vi)). Further “The Commonwealth shall protect every State against invasion and, on the application of the Executive Government of the State, against domestic violence” (s 119).

The ADF may be used to protect Commonwealth interests and, when requested, to assist the States to quell ‘domestic violence’ (Defence Act 1903 (Cth) Part IIIAAA). Section 51B says that the ADF may be used to protect a State against domestic violence if that violence is occurring or likely to occur and the is unlikely to protect itself.

To ‘call out the troops’ various steps are required.  Section 30 of the Defence Act provides a simplified guide to the process. It says:

The Defence Force can be called out under a call out order made under this Part. A call out order is made by the Governor-General if the Prime Minister, the Minister and the Attorney-General (who are called the authorising Ministers) are satisfied of various matters.

There are 2 general kinds of call out orders: Commonwealth interests orders and State protection orders. …

Under a Commonwealth interests order, the Defence Force is called out to protect Commonwealth interests in Australia or the Australian offshore area. The order might apply in a State or Territory, or in the Australian offshore area, or in more than one of those places. Each State or self-governing Territory in which domestic violence is occurring, or is likely to occur, must generally be consulted before the Governor-General makes a Commonwealth interests order.

A State or self-governing Territory can apply for a State protection order to protect the State or Territory from domestic violence.

Members of the Defence Force can exercise certain powers if the Defence Force is called out under a call out order. There are 3 categories of powers:

• powers that generally can be exercised only if authorised by an authorising Minister; and
• powers that can be exercised in an area that has been declared by the authorising Ministers; and
• powers for protecting infrastructure that has been declared by the authorising Ministers…

We saw the ADF ‘called up’ during the 2019-2020 bushfires crisis. We can see what a call up (as opposed to a ‘call out’ order looks like – see Calling out the troops (January 5, 2020). To the best of my knowledge there has been no formal order such as the one we saw in January.  Further, the use of the ADF in hotel quarantine is not protecting the states from domestic violence; it is therefore not an example of a state protection order. Nor is there ‘domestic violence that would, or would be likely to, affect Commonwealth interests is occurring or is likely to occur in Australia’ (s 33) so this is not a Commonwealth interests orders. In short the ADF has not been called out under Part IIIA and is not providing Defence Aid to the Civil Authorities.

This must, therefore, be an example of Defence Aid to the Civil Community (DACC).  DACC is not provided for in the Defence Act, rather it is governed by the DACC Manual. I would infer that the current use of the ADF is either DACC category 4 or 6 that is:

Category 4—significant non-emergency assistance provided to other Government departments or authorities, to Local, State or Territory Government or other authorities or organisations, commercial enterprises, not-for-profit organisations, individuals or bodies in the general community (DACC 4).

Category 6—law enforcement non-emergency assistance to civil authorities in the performance of law enforcement related support. As is the case with all DACC categories, there must be no likelihood that Defence personnel will be required to use force (DACC 6).

Under those categories the members of the ADF have no particular power. They cannot use force nor compel compliance with directives. They are in the same position that the SES or a private security guard would be in if they were asked to help maintain the quarantine. They are a well disciplined, self-sustaining force that are willing to turn their minds to any task they are given. That means they are an effective labour force but as guards at hotels, the most they could do is ask (with some moral authority) people not to leave and report them to police if they do. It’s no offence to disobey the soldier but it may be an offence under relevant public health orders and the Biosecurity Act 2015 (Cth) to leave the hotel or otherwise not comply with the directions that have been given.

They have a power of arrest, just as any citizen does, but it would be ‘brave’ (as Jim Hacker might say in ‘Yes, Minister’ for those old enough to remember) for an ADF member to try to arrest someone who failed to comply with a requirement under a public health direction.

Conclusion

the ADF provide a very effective surge capacity to help maintain quarantine at the various hotels, but they have no particular legal authority or power.

I have previously reported on the story of the Chapmans and the moves by Victoria SES to cancel their membership and their efforts to resist that move – see Natural Justice and the SES (September 28, 2015). In that post I reported on the outcome of an application to the Victorian Civil and Administrative Tribunal (VCAT) seeking a review of a decision to suspend the membership of the Chapmans.  5 years later and the matter may have been finally resolved with the decision in Chapman v Victoria State Emergency Service Authority (Review and Regulation) [2020] VCAT 722.

This decision was about an application by the Chapmans to recover their costs from the SES but it tells us much about what has happened since September 2015.  We are told that in October 2015 formal disciplinary proceedings were commenced. There were delays in hearing the allegations whilst the Chapmans took the matter to the Supreme Court of Victoria – Chapman v Chief Officer of the Victoria State Emergency Service [2017] VSC 547 (13 September 2017).  That case had not previously come to my attention, so I will digress here to consider what the Supreme Court decided.

Chapman v Chief Officer of the Victoria State Emergency Service [2017] VSC 547

The Supreme Court outlined the story of the Chapmans’ complaints about the leadership of the SES unit and the complaints by others regarding the behaviour of the Chapmans’ along with details of meetings and investigations and escalation of the issue within the SES. An independent consulting firm was asked to report on the matter and the impact it was having on the ability of the SES to provide a safe working environment (‘the Bowe Report’). This report was delivered on 12 December 2014. At [23]-[26] and [29] Emerton J said:

The Bowe Report records agreement among the individuals interviewed that ‘tension and disharmony within the Unit [had] reached unsustainable and unhealthy levels’. The volume and nature of the verbal and written complaints and counter-complaints was said to have impacted on the health and wellbeing of every member of the Unit. According to the Bowe Report, although there were numerous points of disagreement, all of those interviewed agreed that the Unit was divided into two groups, being ‘the Chapmans and their supporters’ and ‘the rest of the Unit’. The ‘Chapman group’ was identified as Ray, Paul and Daniel Chapman and three other individuals, including Mr Brendan Bennett. The other group was said to comprise the remaining approximately 50 members of the Unit. According to the Bowe Report, the Chapmans quite openly expressed their dissatisfaction with the existing Unit leadership team and made it known that they believed Ray Chapman would be a more appropriate Unit controller.

The Bowe Report found that the manner in which the Chapmans, and later their three supporters, chose to raise their concerns about the decisions and overall performance of the Unit leadership had created tension between them and the leadership and between them and other members of the Unit. Their conduct was increasingly perceived as disrespectful and as being motivated by an intention to discredit and drive out the existing leadership team. The Bowe report continued:

… It has become an unsatisfactory and unhealthy environment for both sides. For an organisation that depends on the goodwill of volunteers to turn up and collaborate to carry out the work in a highly professional and safe manner, it is not sustainable for this unhealthy, disrespectful and combative environment to continue.

… As a result, the Bowe Report identified two options: first, the Chapman group changing their approach; secondly, ‘separating’ the Chapman group from the Unit if they were unwilling or unable to make such a change. However, as the disrespect and disconnection had developed over a number of years and become entrenched, the second option was more likely to be ‘the appropriate and necessary way to eliminate the health risk in the short term and over the longer term’. The Bowe Report therefore recommended that VICSES management consider communicating with the Chapmans to outline a number of the findings and the position of the organisation, giving the Chapmans time to consider their options and whether it would be in their own best interests, and in the best interests of others, for the Chapmans to find another organisation in which to pursue their community service goals…

It is evident from the events that followed that VICSES management accepted the recommendation that the Chapmans be asked to step away from the Unit, at least temporarily, but not to use disciplinary action at the outset.

The events that followed were the directions that were the subject of my earlier post and the decision in Chapman v Victoria State Emergency Service (Review and Regulation) [2015] VCAT 1402 (see [53]).  As part of those proceedings there was a compulsory conference to try and find agreement between the parties. At [59]-[63] Emerton J said:

What took place at the VCAT compulsory conference is hotly disputed.

Ray Chapman gave evidence that as part of the compulsory conference process, Ms Bahen [SES Director of Human Resources] ordered the Chapmans to sign the draft Deed. According to Mr Chapman, Ms Bahen said that if the Chapmans signed the Deed, they could return to the Unit within a week or so and all would be forgiven and forgotten. Their ranks would be restored and life would just go on as normal. However, if they did not sign the Deed, Ms Bahen would procure charges against them and make the charges public. According to Mr Chapman, Ms Bahen also said that if they refused to sign the Deed, they would be charged with refusing to follow a lawful command.

Mr Chapman’s evidence that Ms Bahen required them to sign the draft Deed under pain of being charged with disciplinary offences, including being charged with refusing to obey a lawful command, was supported by the evidence given by Paul and Daniel Chapman and the evidence of Mr Bennett.

However, in their evidence, Ms Bahen and Ms Main denied that any such threats or demands were made. Their evidence was to the effect that the applicants were told that if the VCAT proceeding did not settle, then the next step would be the making of a formal complaint. This would involve the commencement of the disciplinary process under the Regulations.

The Chapmans declined to settle the VCAT proceeding. They said they were not prepared to sign a document containing the release.

(It should be noted that at [220] Her Honour says ‘I do not accept the Chapmans’ version of what took place at the VCAT compulsory conference on 3 June 2015’).

On 31 July 2015 the Chief Officer advised that complaints had been made about the Chapmans and these would now be dealt with under the Victoria State Emergency Service Regulations 2006 (Vic) (now repealed). Again an independent organisation (ZALT) was appointed to investigate the complaints. The consultant wrote to the Chapmans with details of the complaints. The problem was (at [82] and [84]) that the:

… allegations were … not the same as those summarised in the notices of complaint sent to each of the Chapmans on 31 July 2015. The allegations listed in the ZALT letters were apparently taken more directly from the interviews recorded in the attachments to the Bowe Report. Many of the allegations in the ZALT letter do not correspond with the allegations in the notices of complaint….

On 7 September 2015, the Chapmans collectively wrote a long letter to the Chief Officer in relation to the allegations in the ZALT letter. They pointed out that four different versions of the allegations against them had now been provided and that there was a ‘lack of clarity and consistency’ in regard to the allegations. They further contended that the allegations set out in the ZALT letters lacked sufficient detail to enable them to proffer a meaningful response.

Emerton J continued (at [90] and [93]):

On 9 October 2015, the Chief Officer wrote to Ray Chapman, advising him that in accordance with reg. 12(1)(b), the Chief Officer had decided to charge him in relation to the complaint. The letter stated that, for the purpose of reg. 13(a), the full particulars of the charges were set out in an annexure…

The disputation between the Chapmans and VICSES has continued since the Charges were brought. Most of the disputation has concerned the particularisation of the Charges and the adequacy of discovery…

The Chapmans went to the Supreme Court asking, amongst other things, that ‘the Court … set aside the decisions by the Chief Officer to suspend and charge them pursuant to the Regulations and [issue]… an injunction restraining the Chief Officer from taking any steps or proceedings on the basis of the purported suspension and charges’ ([94]).

In making her decision Emerton J reminded everyone (at [113])

Not every step taken by VICSES to manage the Chapmans involves a decision that is reviewable by the Court on administrative law grounds. The Court has no jurisdiction to review an administrative decision just because it is unfair or unjust; the decision must be unlawful. The relevant statutory framework for the decision-making is vital and must be steadily borne in mind. Otherwise there is a risk of losing sight of the limited scope and purpose of any proceeding for judicial review of administrative action.

It can be noted that the Chapmans complained about the SES not following the rules and procedures to the letter, of variations in the allegations making it impossible to respond etc.  Of the Chapmans, in court, Emerton J said (at [115]):

More worryingly, the Chapmans have deployed a scattergun approach to challenging the actions of VICSES and have made opening and closing submissions that raise a plethora of grounds or allegations that are not included in the Further Amended Originating Motion. The submissions are prolix, they generate more heat than light, and they contain numerous propositions of fact and law that are not sustainable.

The Court tried to come to grips with the complaint and the remedy sought. At [117]-[118] Emerton J said:

The principal relief sought by the Chapmans is that the decision of the Chief Officer to ‘suspend and charge’ them be quashed.

In order for certiorari [the formal name of the order] to issue to quash a decision, it must be possible to identify a decision which has discernible or apparent legal effect upon rights, for it is the legal effect of the decision which is quashed…

The problem was that the decision by the Chief Officer did not affect the Chapman’s legal rights.  At [126] Her Honour said:

… there is a real question as to whether the Chief Officer’s decision to bring the Charges is a decision that affected the Chapmans’ legal rights in the relevant way. It is an essentially procedural decision that forms part of a larger decision-making process, which will culminate in the hearing and determination of the Charges. However, as Nettle JA held in Byrnes v Marles, even if certiorari is not available, that may not be the end of the matter: procedural fairness in the form of an opportunity to be heard may need to be afforded if such a requirement is implied in the statute (in this case, the Regulations) governing the decision-making process.

Her Honour then reviewed the regulatory scheme for disciplining members and the processes that the SES had followed. She concluded that the SES had complied with the regulations up until the time that ZALT wrote to the Champans. At [168] Her Honour said:

…the allegations identified for investigation by the ZALT investigator are not coextensive with the allegations detailed in the notice of complaint. The ZALT investigator proposed to investigate a far greater number of allegations than were detailed in the notice of complaint. I have tried to reconcile the matters listed in the notice of complaint with those listed in the ZALT letter. I have concluded that, in substance, the ZALT letter raises a whole new set of allegations.

This means that the notice of complaint did not clearly indicate what was to be investigated. In that sense, the notice of complaint served on Ray[,Paul and Daniel] Chapman was deficient.

At [171]-[172] Her Honour continued:

Failure to comply with a statutory requirement to give a notice does not necessarily result in the invalidity of an administrative decision or action that is predicated on notice having first been given. It will be rare for a failure to give notice to result in a decision being set aside where the relevant information has been conveyed by other means…

… The notice of complaint is important because of what it signals about how other parts of the disciplinary process are to be carried out. The notice of complaint is procedural; a deficient notice of complaint is not, in and of itself, something that gives rise to invalidity.

Her Honour then traced through the history of the proceedings and the correspondence between the parties. She concluded (at [188]-[189]):

… it cannot be said that the Chapmans were denied the opportunity to be heard in the investigation. The Chapmans stridently declined to take the opportunity to be heard by the investigator. Although the allegations in the notice of complaint did not match the allegations listed for investigation in the ZALT letter, the Chapmans were given time to consider the ZALT allegations and to respond to them. It has not been shown that they lost an opportunity to put forward any information or argument relevant to the limited inquiry that was foreshadowed. No practical injustice has been shown.

In my view, the Chapmans were not denied procedural fairness in the investigation and the investigation itself satisfied the requirements in the Regulations, notwithstanding the deficiency in the notices of complaint.

Her Honour also found (at [199]) ‘that none of the grounds challenging the decision to bring the Charges on the basis of non-compliance with the Regulations is made out’ nor (at [205]) was anything ‘unreasonable in the legal sense in the decision taken to suspend the Chapmans’.

Finally, the Chapman’s challenged the decision to lay disciplinary charges on the basis that the decision was ‘made for an improper purpose’ ([206]).  Without repeating all of the findings or the judge’s reasoning, she did conclude (at [235]) that ‘The allegations of improper purpose are not made out.’

As for the purported suspension, the subject of the decision in Chapman v Victoria State Emergency Service (Review and Regulation) [2015] VCAT 1402, Her Honour said (at [259]) ‘I find that the ‘suspension in fact’ was not a disciplinary measure. It did not need to be effected in accordance with the Regulations. I am therefore not persuaded that the ‘suspension in fact’ was unlawful.’

At [269]-[270] Her Honour said:

None of the grounds for review in the Further Amended Originating Motion is made out. Furthermore, there is no basis upon which to make any of the declarations that are sought.

The proceeding will be dismissed.

Further steps

After the application to the Supreme Court was dismissed, the SES could continue with the disciplinary process. To return to the decision of Deputy President Lambrick in VCAT, she said (at [4]):

… on 10 October 2018, the delegate determined that various charges had been substantiated against each applicant. The applicants were appalled and astonished by those findings and declined to make submissions with respect to penalty.

The matter then came to VCAT to seek a review of that decision. Again there were a number of steps where actions were challenged and demands made. Critically at [12] we are told that:

At the directions hearing on 27 June 2019, the second respondent [the Chief Officer Operations of the Victorian State Emergency Service] formally sought leave to amend the charges…

This application was held over and again made when the hearing before VCAT commenced – ‘Unsurprisingly, the applicants opposed the leave application’ ([16]).  Her Honour continued (at [17]-[24]):

After hearing the applicants’ arguments, I did not grant the second respondent leave to amend any of the charges and gave oral reasons for not doing so. I expressed doubt that I had any power under the Regulations to amend the charges. In any event, I considered that the amendments sought by the second respondent would have resulted in the Tribunal dealing with different charges and therefore addressing a substantially different question to that which the first respondent was asked to determine. It is well established that on review this Tribunal must address the same question as the primary decision-maker. The effect of my ruling was that (at least some of) the charges apparently became less tenable/untenable.

… In due course, the parties requested that the matter be listed for a compulsory conference. The compulsory conference took place on 11 September 2019 before another member of the Tribunal.

Following the compulsory conference, on 24 September 2019 the second respondent advised both the applicants and the Tribunal in writing that:

the authority has determined not to oppose the applicants’ review application dated 20 January 2019, i.e. the Authority is not going to seek to prove the charges against the applicants which are the subject of the review application.

The second respondent proposed orders disposing of the matter.

The outcome was that VCAT formally set aside the finding that the charges against the Chapmans had been proved and the decision to cancel their membership of the SES was set aside.

The matter, the subject of this report, was then an application by the Chapman for the payment of their costs and compensation for the events over the last many years. In tribunals like VCAT the general rule is that each party must pay their own costs (see [36]).  This is unlike courts, where the general rule is the loser is ordered to pay at least some of the winner’s costs.

Deputy President Lambrick found that the Act establishing VCAT did not give the Tribunal the power to order costs for events that occurred outside the VCAT hearing.  She did not have the power to make an award for costs incurred in responding to the allegations, during the hearing of the complaint or in the Supreme Court (noting of course that the Chapmans lost in the Supreme Court ).  She said (at [69]) ‘This Tribunal can do nothing in relation to any costs incurred by the applicants before the matter came before this Tribunal.’

Her Honour then had to consider whether she should make an order for costs for proceedings in the Tribunal. She held that she should not.  She said ([78]-[110]):

The applicants did not demonstrate any time whereby the respondent relevantly failed to comply with any order or direction of this Tribunal.

The applicants did not point to any examples of the respondents failing to comply with this Act, the Regulations, the Rules or enabling enactment in the proceeding before this Tribunal for which an award of costs would be appropriate.

[There was no] … attempt by the second respondent to deceive another party or the Tribunal.

Whilst the applicants repeatedly contended that the proceedings were vexatious, there was no evidence before me upon which I could draw this conclusion… The second respondent was successful in its case before the first respondent. It is impossible in these circumstances to find that in defending its position before VCAT it acted vexatiously….

There are a myriad of reasons why this prosecution has taken a long time. I do not however agree that the second respondent prolonged unreasonably or in any way the time taken to complete the proceeding before this Tribunal…

The applicants contend that the charges against them should never have been laid… Once again, much of the emphasis surrounded the conduct of the hearing before the first respondent.

The first respondent found the charges proved.

I agree with the submissions of the second respondent that following my ruling, it did not persist before this Tribunal with charges that had no tenable basis.

The criticism advanced by the applicants would have been more arguable had the respondents determined, after my ruling, to nevertheless contest the application, knowing that the charges were no longer tenable.

… action by the second respondent to enforce a costs order arising from the Supreme Court judicial review proceeding at a time when the parties were engaged in a compulsory conference before this Tribunal does not constitute misconduct or bad faith…

The Tribunal declined to make a costs order but did order Victoria SES to reimburse the Chapmans the fees associated with the VCAT hearing in the sum of $2,824.70.

Discussion

From a legal perspective I think all of this shows two things. First I think it is a credit to the judicial arm of government (including VCAT) that the tribunals exist and dispassionately hear and try to apply the law to all manner of arguments. That the tribunals exist is a valuable release. On the other hand, unlimited appeals and the right to challenge each and every decision of each and every decision maker does lead to the appearance that anyone who is willing to keep throwing money and time at a decision they don’t like will eventually triumph. We usually think of big business with deep pockets winning by attrition but it is not so limited. Whether that’s justice or not depends on where you stand in any given matter.

We are not told what amendments the SES wanted to make or why. All we know is that when that application was refused, they did not proceed with the matter. The Chapmans, not surprisingly, were not happy with that outcome. They (at [26]) ‘made it clear that they would have preferred to have had the opportunity to be vindicated at a hearing of the Tribunal rather than simply have the respondents lead no evidence.’  As it is no-one has been vindicated.

Every step of this process, at least as reported in the Courts and Tribunals, has turned on process and procedure rather than the substance of the allegations. It would appear that, apart from the decision to refuse leave to amend the charges made by Deputy President Lambrick, the Chapmans have had no judicial determination in their favour even if, at the end of the day, one has to conclude that the charges as formulated were defective. We simply don’t know however what behaviour occurred, or did not occur. This is an unsatisfactory outcome to a very long process.

Conclusion

This is a sad and sordid tale for an organisation that depends on volunteers.  I have not repeated the details of the complaints against the Chapmans but they are set out in the Supreme Court judgement at [166]-[168]. If even some were true it must have made attendance at that SES unit very unpleasant.

I said at the start that ‘the matter may have been finally resolved’ but actually one would have no reason to believe that. Given the history of this matter and the ‘depth of ill-will, distrust and disrespect that had developed’ [Chapman v Chief Officer of the Victoria State Emergency Service [2017] VSC 547, [253]) it is hard to see how this, or any decision will go toward rebuilding the unit.

What I don’t understand is why the Chapmans, or the 50 or so other members in the ‘other group’ would choose to remain either in the SES or in a unit that is so dysfunctional.  Why is membership of the SES so important you would spend years and thousands of dollars fighting to stay when others clearly don’t want you; and why if people are behaving as the Chapmans’ were alleged to have done (acknowledging of course that the allegations have not been proved) would anyone else want to stay? Given the story, as told through judicial decisions, it is beyond me how the members of this unit find the will to turn up for training or to turn out to an emergency.

The time and cost it has taken to come to no real resolution – no-one’s complaints, those made by and those made against the Chapman’s have been satisfactorily resolved. This is a shocking story for Victoria SES and the Victorian community.

Today’s correspondent says:

I was hoping you could clarify some points of concern for me. I have recently come across a post in the … Facebook group discussing pharmaceutical licensing by state governments. This in turn ignited a fierce debate in one of the private chat rooms about state health organisations getting around the TGA rules.

We, as a private provider in NSW have to apply to NSW Health Pharmaceutical unit to obtain a license and permits to purchase, store and administer various medications. I assume this system is very similar in other states. We can only request to have medications on license that have been approved for registration by the federal government’s TGA [Therapeutic Goods Administration].

It is my understanding that state health organisations do not have to abide by this rule and can use certain medications that are not approved by the TGA, intranasal fentanyl for example.

Now that our business is struggling due to CoVID19, I find it especially frustrating that government ambulance services can freely compete with small businesses for the same commercial contracts. In the case of NSW Ambulance for example, they have been given generous exemptions in every aspect of registration and licensing for medication and are also overly represented in the management of various industry groups and regulatory committees.

The questions I bring to you are two different aspects of this.

1. Why are state ambulance services exempted from complying with these rules?
2. What’s the point of rules and regulations if most of the industry does not have to comply with them?
3. How can a publicly funded service, which enjoys these generous exemptions in various fields, bid for the same tenders and take commercial work away from small businesses? Is that not rather unethical?

We know that everyone needs an authority to possess, supply and/or administer a scheduled drug (The last word on scheduled drugs? (September 29, 2019)) and yes that scheme is consistent across Australia.

The Therapeutic Goods Act 1989 (Cth) makes provisions for how drugs are approved and listed for use.  Drugs may be prescribed for ‘off label’ use. The TGA says:

Off-label prescribing refers to the use of a registered medicine outside of the indications, dose, route of administration or patient group set out in the TGA-approved Product Information (PI).

The TGA is responsible for ensuring that medicines available for supply in Australia are safe and fit for their intended purpose. The approved indications, as described in the medicine’s PI, have been evaluated for safety and efficacy by the TGA.

The TGA recognises that off-label prescribing may be clinically appropriate in some circumstances, but recommends that such use only be considered when other options are unavailable, exhausted, not tolerated or unsuitable.

Prescribers should discuss the risks and benefits of the proposed treatment with the patient and/or their carers so that they are capable of providing informed consent.

Additionally, the treatment, including its effectiveness and potential adverse events, should be monitored.

In situations where the PI for a medicine is updated in a way that makes continued use ‘off label’, the patient should be informed so they can participate in the decision regarding treatment options.

Intranasal Fentanyl does not appear to be something out of the ordinary; see

• https://pch.health.wa.gov.au/For-health-professionals/Emergency-Department-Guidelines/Fentanyl-Intranasal
• https://www.rch.org.au/clinicalguide/guideline_index/Intranasal_fentanyl/
• https://www.rch.org.au/uploadedFiles/Main/Content/comfortkids/Intranasal%20fentanyl%20%20Master%20presentation%202016%20PDF.pdf
• https://www.pbs.gov.au/pbs/industry/listing/elements/pbac-meetings/psd/2014-03/fentanyl-nasal-spray

Nor does it appear to be ‘off label’:

• https://www.ebs.tga.gov.au/servlet/xmlmillr6?dbid=ebs/PublicHTML/pdfStore.nsf&docid=01D6D1F2AC7FB1B4CA257B8D00421D17&agid=(PrintDetailsPublic)&actionid=1

The NSW government, along with all Australian governments, has adopted the principles of competitive neutrality.  They say (NSW Policy Statement on the Application of Competitive Neutrality (2002), p. 23):

The objective of competitive neutrality policy is the elimination of resource allocation distortions arising out of the public ownership of entities engaged in significant business activities: Government businesses should not enjoy any net competitive advantage simply as a result of their public sector ownership.

That policy statement sets out general pricing guidelines to ‘ensure that goods and services sold in contestable markets are costed and priced in a competitively neutral manner’ (p. 14).

Discussion

I would start with the proposition that a statement on Facebook, no matter how adamant the writer is, is proof of nothing.   I can see nothing in the Therapeutic Goods Act and its various regulations nor state poisons laws that suggests that state ambulance services enjoy any exception to the rules.

There is however a clear difference between NSW Ambulance and private providers. First NSW Ambulance maintains a monopoly on responding to triple zero emergency calls. Therefore, NSW Ambulance has to have a capacity to respond to emergencies affecting the entire NSW community, people of all ages, of all backgrounds and all manner of emergencies. This may not be true of private providers depending on their area of operations. It may be that NSW Ambulance paramedics have a clinical need for some drugs that other providers do not.

NSW Paramedics can carry any drugs that the Secretary of Health authorises (Poisons and Therapeutic Goods Regulation 2008 (NSW) r 101 (with respect to schedule 8) and Appendix C, cl 7 with respect to schedule 2, 3 and 4 drugs). (Note that the Regulation refers to the Director-General of Health, but that title has been dropped and the relevant office is now the Health Secretary (Statute Law (Miscellaneous Provisions) Act (No 2) 2015 (NSW), Government Sector Employment Act 2013 (NSW) and Health Administration Act 1982 (NSW) s 8).  A private provider also has to have the approval of the Health Secretary  to be authorised to possess, supply or administer a scheduled drug (Poisons and Therapeutic Goods Regulation 2008 (NSW) r 170).  The second major difference between NSW Ambulance and private providers is that the Health Secretary runs and is responsible for NSW Ambulance (Health Services Act 1997 (NSW) s 67A). No doubt that gives the CEO of NSW Ambulance direct access to the Health Secretary and to the relevant head of the pharmaceutical branch of NSW Health so it may be easier for NSW Ambulance to get approvals to allow NSW ambulance paramedics to carry drugs that the CEO has determined would better improve their service. But at the end of the day, everyone needs the Health Secretary’s approval.  There is no exemption for NSW Ambulance.

Conclusion

I was asked:

1. Why are state ambulance services exempted from complying with these rules?
2. What’s the point of rules and regulations if most of the industry does not have to comply with them?
3. How can a publicly funded service, which enjoys these generous exemptions in various fields, bid for the same tenders and take commercial work away from small businesses? Is that not rather unethical?

My answers are:

1. I can see no evidence that state ambulance services are exempted from complying with the rules set by, or under, the Therapeutic Goods Act 1989 (Cth) or state poisons legislation.
2. In light of my answer to question 1, question 2 is irrelevant.
3. State government services are expected to bid for commercial work in a way that is consistent with the competitive neutrality principles that have been adopted by all Australian governments. I cannot say whether NSW Ambulance does that but there are complaint procedures if someone wants to allege that they have failed to do so.

 

 

Today’s question relates to

… Paramedics in NSW [who] are often required to do inter-hospital transfers of patient with intravenous medications from the emergency department ongoing. Many or most of these medications (and the equipment used to infuse these medications) are not in the scope of practice of paramedics in our ambulance service…

My questions are this: what is the medico-legal risk to paramedics if harms come to a patient with one of these infusions in situ? Given that we are not formally trained in any of these medicines … can we get into trouble if something goes wrong during the transfer? Also, is it true that we can take over any medications started in the ED? Does this extend to medical equipment such as ventilators and other machines we are not trained in as well?

I recently transferred a paediatric patient and they asked me to start an infusion during the transfer of a drug that has the potential for serious adverse events. I had no training in this medicine, and I don’t have training in most of the drugs they ask us to infuse during transfer. I felt uncomfortable with this and said so. But if I felt okay with doing this, despite not really knowing this drug well and something went wrong, will the coroner hold me culpable?

Let me again remind people that the coroner cannot hold anyone ‘culpable’. Coroners cannot determine guilt or innocence of a crime; they cannot determine whether there has been negligence or not; they cannot sentence anyone or award compensation. They can make recommendations which, in the context of the question, may be directed to NSW Ambulance or NSW Health with respect to training or the like.  I will not address the question ‘will the coroner hold me culpable?’ further.

It’s true that one needs authority to possess, administer or supply a scheduled drug (The last word on scheduled drugs? (September 29, 2019)).  Paramedics employed by NSW Ambulance can possess, supply and administer those schedule 2, 3, 4 and 8 drugs that they are approved to carry by the Director General (Poisons and Therapeutic Goods Regulation 2008 (NSW) r 101 (with respect to schedule 8) and Appendix C, cl 7 with respect to schedule 2, 3 and 4 drugs).  What we are told however is that the drugs that are in situ or that the paramedic is asked to start are not the normal drugs provided for by NSW Ambulance and we can infer therefore that those clauses don’t apply.

So where is the authority? It’s found in the various provisions of the Poisons and Therapeutic Goods Act 1966 (NSW).  For example s 16 provides that a person must not

… have in his or her possession or attempt to obtain possession of a prescribed restricted substance [ie sch 4] unless:

(d1)     the person is a person who has the care of, or is assisting in the care of, another person (for or to whom the supply of the substance has been authorised by the prescription of a medical practitioner, nurse practitioner, midwife practitioner, optometrist, podiatrist or dentist) and has the  prescribed  restricted substance in his or her possession for the sole purpose of administering, or assisting in the self-administration of, the substance to the other person in accordance with that prescription…

Section 23 says:

Despite any other provision of or made under this or any other Act, a person who has the  care of, or is assisting in the  care of, another person (for or to whom the supply of a drug of addiction [sch 8] has been authorised by the prescription of a medical practitioner, nurse practitioner, midwife practitioner or dentist) is not guilty of an offence in relation to the possession or supply of the drug if the person is in possession of the drug for the sole purpose of administering, or assisting in the self-administration of, the drug to the other person and does so in accordance with that prescription.

If I can get somewhat personal here, I like most people have had family members undergo treatment for cancer. Some of that treatment has been palliative care only. I have been in possession of and administered drugs that I have no qualifications in and in some cases have no idea what the drugs did.  But I did not commit any offence as the drugs were prescribed for those persons and I administered them in accordance with the (verbal) instructions I received from their doctor or nurse.

If paramedics collect a patient and there are ‘infusions in situ’ it is not the paramedics decision as to what drugs are being administered or the route used. Those drugs are prescribed for the patient and to the extent that the paramedic is in possession of the drugs (they are in the ambulance that he or she is in control of) there is no offence.

If a paramedic is asked to start a drug en route there are differences if the patient is being accompanied by a nurse or doctor and they are asking the paramedic to assist versus the paramedic is given the drug and asked to use it en route in particular circumstances such that the paramedic will need to make the call as to whether those circumstances have arisen.  In either case the fact that the drug is not within the paramedic’s scope of practice is irrelevant as they are administering a drug that has been prescribed for that patient.  The latter case may, however, call from some clinical judgement.

The rule is that you are only responsible for the decisions you make and the actions you take (or don’t take).  The decision to infuse the patient prior to transport is not made by the paramedic so he or she cannot be responsible for that decision. He or she can be responsible for the decisions he or she takes en route, so if the patient suffers a cardiac arrest a paramedic can probably infer that this was not the intended outcome from the drug and therefore would be expected to take some action. There may be consequences that are obviously adverse that the paramedic will need to act on. In minor cases that may be no more than noting that the patient developed redness or complained of pain at the site or some such, and report that when delivering the patient to their destination. In more serious cases more intervention may be required. That is not really about the drug but about the symptoms and I have no doubt that a paramedic can contact their comcen for medical advice if it appears that the patient is not responding well to the drug (Inquest into the death of Scott Cayirylys (3 March 2020)).

Where the paramedic is asked to start the drug the critical skill he or she is being asked to exercise is the technical skill – if it’s meant to be IV making sure that the drug does in fact go into a vein and not surrounding muscle etc.

A paramedic as part of the health team should also be willing to question a prescription. If they are asked to administer 30ml of a drug but they understand that this is a massive dose and perhaps the doctor meant 3ml, then they should raise that as that is what any reasonable member of the health care team would do.

The ultimate question will always be ‘was the paramedics’ conduct reasonable in all the circumstances’  and, from a professional discipline, did the paramedic demonstrate skill care and knowledge that could be expected from a paramedic of similar skill and training.  That does not mean you have to know the pharmacology, indications and contra-indications of every drug prescribed by the patient’s treating doctor or nurse practitioner. The paramedic is not responsible for the doctor’s or nurse practitioner’s choice of drug or route of administration.

‘Does this extend to medical equipment such as ventilators and other machines we are not trained in as well?’ Absolutely. In these cases the paramedic is not being asked to exercise clinical skill, if the machine’s there it’s there. If it stops working the paramedic would be expected to realise that and do something – whether that’s call for assistance or start their own protocols for cardiac arrest; but you can only be responsible for what you are responsible for. A paramedic, or a doctor, or a nurse, is not required to guarantee that there will only be good outcomes.

Conclusion

There is no issue in being in possession of and supplying a drug to a patient that has been prescribed for the patient even though the person holding and administering the drug has no formal training in that drug.  The reason for the drugs authorities for paramedics and others is to allow them to carry drugs ‘just in case’ for people not yet identified and where the paramedic has to make the clinical decisions of diagnosis and treatment. That is not the case described by my correspondent.

The question was ‘what is the medico-legal risk to paramedics if harms come to a patient with one of these infusions in situ?’ and the answer is there is none if it’s the drug that causes the harm. If the paramedic recognised or should have recognised that harm was occurring and did nothing that is a different matter.  But if it turns out that the patient cannot tolerate the drug the fact that this becomes apparent in the ambulance and not in the hospital will not make the paramedic liable for that outcome.

 

Today’s question asks:

As committee members of a charitable foundation that provides peer support to individuals with mental health conditions, what, if any, liability exists for (1) individual committee members) or (2) the charitable foundation, if someone (not a committee member) provides peer support under the name of the charity, and the situation ultimately ends negatively. For example, peer support is a attempted but a person dies by suicide. Could the family of the deceased take legal action against the charitable foundation or its committee members?

Once again it is worth remembering that a poor outcome is not proof of negligence. Many people involved in health services, including mental health, try their best but the outcome is not always ideal. A person may be getting help from the best health professional in the business but he or she may still take their own life. That does not prove that there has been inadequate care. We can say that the mere fact that the ‘situation ultimately ends negatively’ would not mean that the ‘family of the deceased [could] take legal action against the charitable foundation or its committee members’.  What is critical is the facts and what happened.

Negligent care

We’ve all heard stories of people being flippant or silly or calling someone’s bluff in these situations. The story of the medical professional who tells the person to cut their wrist along, not across the vein.  Someone who says to someone threatening suicide ‘on go on then, either do it or don’t we haven’t got all day’.  So maybe a person employed or volunteering with this charity says something that drives a person to suicide – they add the straw that breaks the camel’s back (so to speak). That may be negligent and unprofessional and that may allow someone to sue. The question is always whether such conduct was, or is ever reasonable, and whether it was that conduct that ’caused’ the person to take their own life and both of those points would require expert mental health opinions.

Failure to warn

There could be negligence if a person presented in crisis and the peer support worker failed to recognise that crisis and act upon it, eg if the person was threatening suicide then it may be negligent not to call an ambulance, or police, or the person’s health practitioner or other support person. There may be liability if the person threatens to harm someone else and the peer support worker does not act on that eg if the person indicates he or she is going to go home and kill their family and then themselves (Tarasoff v. Regents of the University of California, 17 Cal. 3d 425, 551 P.2d 334, 131 Cal. Rptr. 14 (Cal. 1976)).

In Australia, the position is not clear. In Hunter Area Health Service v Presland [2005] NSWCA 33 and Hunter and New England Local Health District v McKenna [2014] HCA 44 it was held that the defendant did not owe a duty of care to detain a patient who killed someone when released. In Presland it was the patient who sued for the trauma caused to him when he killed his brother’s fiancé whilst suffering a mental illness; in McKenna it was the family of the deceased. In both cases the plaintiffs alleged the defendant was negligent in not continuing the patient’s involuntary detention under Mental Health legislation. Those cases turned on the wording of the Act and the principles that limit the use of involuntary detention to a last resort. Doctor’s may not be willing to apply the principals of the Act if they could be liable for the actions of a patient once released.

In Stuart v Kirkland-Veenstra [2009] HCA 15 police were not liable for the death of Mr Veenstra after they found him in a car with a pipe from the exhaust into the vehicle. They formed the view that Mr Veenstra was not displaying signs of mental illness and whilst he may have been contemplating suicide, he had not attempted suicide as the vehicle’s engine was not on and had not been on – the bonnet was cold to touch. The police determined, and the High Court agreed, that the conditions set out in the Mental Health Act 1986 (Vic) s 10 (now repealed) that provided for police detention were not established and therefore the police had not power to detain. Absent a power to detain they could not stop Mr Veenstra from going home and later, taking his own life.

A peer support person cannot involuntary detain a person and is not, I infer, a mental health professional so their capacity to diagnose a mental illness, or to know what to do about it is limited. I assume however they receive some training and by taking on the role they must owe a duty of care, within the limits of their role, to the people they are supporting. That duty must be consistent with other statutory obligations including the privacy principles. There is no breach of privacy to release information that is otherwise confidential where that is required to prevent an imminent risk of harm (Privacy Act 1988 (Cth) s 16A – personal information can be released where ‘the entity reasonably believes that the … disclosure is necessary to lessen or prevent a serious threat to the life, health or safety of any individual, or to public health or safety’).

Even if there is no general duty to rescue (Stuart v Kirkland-Veenstra [2009] HCA 15) and whilst each case would turn on its own facts, I can imagine that a peer support person would, in some circumstances, have a duty to warn police, or the person’s treating health professional, or the person’s next of kin, if there are genuine concerns for the person’s, or another person’s welfare.  So if a person said ‘I’m going to kill myself’ and the peer support person believed that this was a statement of their actual intention, then I think it would at least be arguable that there was a duty to take some action such as calling police, a treating practitioner, a family member, or at least escalating the matter within the foundation for someone else to take the necessary action.

Committee members

Would action lie against committee members? That depends on how the charity is structured. If it is unincorporated then it has no legal standing so the only people that can be sued are the directors. If it is an incorporated association then it is a legal person separate from the directors and can sue and be sued in its own name.  That is the whole point of incorporation. The Directors of BHP are not personally liable for the debts of BHP and same with a local incorporated association and if someone got hit by a car owned by BHP and driven by a BHP employee, it would be BHP and not the chair of the BHP Board that would be liable.

Where an association is incorporated the directors have a duty to ensure that the organisation is solvent that is it can pay its debts. They also have duties under Work Health and Safety legislation to manage the association so that it does not pose a risk to workers and others. So a director who informs him or herself of the business and as part of the committee decision making takes reasonable steps to ensure that there is proper training in place and that the volunteers and staff are reasonably managed (without being supervised every minute) will not be personally liable even if a staff member or volunteer is negligent. The vicarious liability belongs to the association, so the director’s duty is to ensure there is proper insurance and management in place.

Conclusion

The short answer is therefore that the family of a deceased person could take legal action against the charitable foundation if there is evidence that the person providing the peer support was negligent in his or her approach – that they failed to provide the support in accordance with the foundation’s training and procedures and/or that the foundation’s training and procedures did not reflect good mental health practice within the limits of the service provided. I can also envisage, though it’s not certain, that there could be negligence if the person communicated to the peer support person that they intended to hurt themselves, or others, and the peer support worker took no steps to seek further assistance or to warn others if they were in danger.

Assuming the foundation is incorporated, committee members will only be liable for their management decisions. They are not personally liable for the negligence of their staff or volunteers. The whole point of incorporation is to create a legal entity separate from the staff, volunteers and directors and it is the legal entity that can sue – and be sued.

 

Today’s question is not really an emergency law question even if the employee is looking to join, or rejoin, one of the emergency services. IT’s an employment law question so somewhat out of my scope but I’ll give some brief thoughts. The question is:

What is the legal status of an organisation, such as [a non-government emergency service] creating a blacklist of ex-employees or failing to re employ ex-employees, is this discrimination? Is an organisation required to indicate why they consistently fail to shortlist or employ people despite meeting selection criteria and qualifications for a position advertised?

To discriminate is to make a choice – it is ‘recognition and understanding of the difference between one thing and another’. Employers discriminate between candidates every time they create a merit list of potential employees and some are ranked lower than others and some are considered ‘not appointable’.  Discrimination per se is not illegal. Discrimination, making a choice, based on some irrelevant grounds is.  Those grounds, under Commonwealth law, are: race, sex, disability and age (see Racial Discrimination Act 1975 (Cth); Sex Discrimination Act 1984 (Cth); Disability Discrimination Act 1992 (Cth); and Age Discrimination Act 2006 (Cth)).

These grounds, and others, are also reflected in state and territory legislation: Discrimination Act 1991 (ACT) (which includes a prohibition on discrimination on the grounds of ’employment status’); Anti-Discrimination Act 1977 (NSW); Anti-Discrimination Act 1992 (NT); Anti-Discrimination Act 1991 (Qld); Equal Opportunity Act 1984 (SA); Anti-Discrimination Act 1998 (Tas); Equal Opportunity Act 1984 (WA).

One would need to look at those state and territory Acts in detail to see if one could frame an argument, but I wouldn’t be confident that is going to work. Employers have to discriminate and the fact that a person has proved themselves as ‘not a good fit’ is surely something that cannot be ignored. If it had to be ignored, a person could be sacked, resign in a huff or disgrace on Friday, and reapply for their job on Monday; but no-one could seriously argue that their past behaviour had to be ignored.

Some legislation such as the Human Rights Act 2004 (ACT) provides for a ‘right to work’. It says (s 27B(1)) that ‘Everyone has the right to work, including the right to choose their occupation or profession freely. The practice of a trade, occupation or profession may be regulated by law’.  But a person’s right to work in their chosen trade or occupation does not give rise to an obligation in someone else to employ them.

In thinking of this answer I looked a number of websites

• HR Advance; Recruitment: Summary for Employers
• Australian Public Service Commission Recruitment: Guidelines
• Personnel Today; How Do Recruiters Choose the Best Candidates?
• Fair Work Ombudsman; A guide to hiring new employees

None of those suggest a legal obligation against identifying that someone who used to work in a business should not work there again for whatever reason. And of course, a candidate may think they are perfect for the job with skills ‘meeting selection criteria and qualifications for a position advertised’ but it doesn’t mean the recruiter’s see their CV, or their application, in the same way.

Conclusion

This question is not an emergency law question. It’s an employment question. The fact that the employer is a private provider of emergency services does not change that fact. I answered it out of courtesy and because writing to explain why I couldn’t answer it took as much work as writing this answer. For a definitive answer however the question has to be directed to an employment lawyer but from what I have been able to find I would suggest that, at least in the private sector an employer is entitled to employ whoever it thinks is the best candidate provided they do not discriminate on prohibited grounds.

Discriminating on the basis that the person is on ‘a blacklist of ex-employees’ or is a former employee would not appear to be such discrimination and would not, therefore, be unlawful.  Further I can see no legal obligation that requires a potential employer to ‘indicate why they consistently fail to shortlist or employ people despite meeting selection criteria and qualifications for a position advertised’.

Today’s question came as a comment on an earlier post – NT Paramedics and the mentally ill (February 2, 2017).  The comment/question is:

It has been explained to me (as a NT Practitioner) that a Paramedic working in the NT legally has the ability to detain and section a patient. However [St John Ambulance Australia (NT)] SJANT policy for detaining does not exist nor does any formal section documentation and as such this requires [Northern Territory] police [NTPOL] attendance to detain the patient for transport to hospital as an involuntary patient. Hearsay being that SJANT does not wish to be involved in the sectioning of patients despite having policies for the restraint and sedation of involuntary patients.

In the unlikely event that NTPOL is unavailable and an involuntary patient was transported in accordance with sedation and restrain policies without formal documentation of the section order, how would this fall?

As a policy does not exist to say not to section a patient would the paramedics involved still be liable for violating company policy and such be up for dismissal? Would they still be protected under the legislation if the patient were to lodge a case in court or the patient deteriorated, and the event became a coronial matter?

Let me first put aside one issue.  One doesn’t get ‘protected’ if an event becomes a coronial matter. Coroners investigate deaths where the identity of the deceased or cause of death is uncertain or where there are matters that warrant investigation to allow the Coroner to make recommendations to avoid future deaths. Coroners do not determine liability for either crime or compensation.

Putting those issues aside we can turn to the question. It is correct that the originally post is old (2017) so we’ll revisit the Mental Health and Related Services Act 1998 (NT).  Section 31 has been amended from the time of that first post and now refers to paramedics rather than ‘ambulance officers’. The current version of the section says:

(1) A paramedic may detain a person being conveyed in an ambulance for up to 6 hours where the paramedic believes, on reasonable grounds, that the person may fulfil the criteria for involuntary admission on the grounds of mental illness or mental disturbance.

(2) When detaining a person under subsection (1), a paramedic may use reasonable measures, including the use of restraints, on the person:

(a) to prevent the person causing serious harm to the person or to someone else; or

(b) to prevent behaviour of the person likely to cause serious harm to the person or to someone else; or

(c) to prevent further physical or mental deterioration of the person; or

(d) to relieve acute symptomatology.

(3) A paramedic who detains a person under subsection (1):

(a) must convey the person to the nearest approved treatment facility or, if that is not practicable, to the nearest hospital, as soon as practicable after the person is detained; and

(b) on arriving at the approved treatment facility or hospital, must complete the approved form and send it to an authorised psychiatric practitioner.

(4) For subsection (3)(b), the form may be sent by fax or email.

The prescribed form is the Form 6 – Ambulance Officer Detention Notification but I am unable to locate that form online (see however, Northern Territory Department of Health Mental Health and Related Services Act 1998, Approved procedure number 28: Transport of Patients (9/03/2020, Version: 7.0)).

In my original post, when the Act referred to an ‘ambulance officer’, I said:

In the absence of any ambulance service legislation, the term ‘ambulance officer’ must be defined. For the purposes of the Mental Health and Related Services Act, ‘ambulance officer’ means any person ‘employed as an ambulance officer, or engaged as a volunteer ambulance officer, by an approved ambulance service at the level of qualified ambulance officer or above’ or a person appointed as an ambulance officer by the Chief Health Officer (ss 4 and 24).

That meant a person’s authority to act under s 31 came with his or her employment or appointment.  Now that the Act refers to a paramedic, it comes with his or her registration as a paramedic (see also s 4, definition of ‘paramedic’).  The power is not now a power vested in St John Ambulance (NT) but a power vested in any and every registered paramedic.

Let me then break down my correspondent’s question. They said:

It has been explained to me (as a NT Practitioner) that a Paramedic working in the NT legally has the ability to detain and section a patient.

We can see that by virtue of s 31 that is correct.

However [St John Ambulance Australia (NT)] SJANT policy for detaining does not exist nor does any formal section documentation

There is ‘formal section documentation’ it is just not a St John document.  It is the Form 6 – Ambulance Officer Detention Notification.

and as such this requires [Northern Territory] police [NTPOL] attendance to detain the patient for transport to hospital as an involuntary patient.

No, it doesn’t and neither did the earlier version of the Act. The power of paramedics to treat their patient is find, relevantly in s 31.  That in no way requires police attendance regardless of whether there is or is not formal documentation.

In the unlikely event that NTPOL is unavailable and an involuntary patient was transported in accordance with sedation and restrain policies without formal documentation of the section order, how would this fall?

Provided the paramedic complies with s 31 then he or she is acting according to law.  Section 31(1) gives the paramedic the power to detain and s 31(2) gives him or her the power to restrain the patient. Section 61 talks of ‘mechanical restraints’ whereas s 31 refers to ‘restraints’.  If it was intended to limit s 31 to ‘mechanical restraints’ the words would have been used so s 31 must have a wider application and would appear to include chemical or pharmaceutical restraints.

There is nothing in s 31 that says NTPOL need to be involved in the decision making, detention or transport of the patient.

As a policy does not exist to say not to section a patient would the paramedics involved still be liable for violating company policy and such be up for dismissal?

It is outside the scope of this blog to go into details of an employment contract with St John (NT) but the obvious answer is that if there is no policy to say ‘don’t act under s 31’ you are not in breach of any policy if you do.

Further an advantage of paramedic registration is that paramedics now have independent duties and authorities.  If a paramedic believed ‘on reasonable grounds, that the person may fulfil the criteria for involuntary admission on the grounds of mental illness or mental disturbance’ and that they needed care, and they complied with the Act and the Mental Health and Related Services Act 1998, Approved procedure number 28: Transport of Patients I cannot see how any employer could take action against them. As a paramedic they have a professional duty to act in their patient’s best interests and provide treatment and care that is available. It is the Northern Territory Parliament that has determined that paramedics can detain and transport a patient. They can do that whether they have their employer’s permission or not. With that authority a paramedic could be negligent or guilty of professional misconduct if he or she refused to treat and transport a patient because their employer had not said they can.

Would they still be protected under the legislation if the patient were to lodge a case in court or the patient deteriorated, and the event became a coronial matter?

Absolutely. The authority under s 31 is given to a paramedic. Provided he or she had the necessary belief and acted reasonably (evidence of which would be compliance with the Mental Health and Related Services Act 1998, Approved procedure number 28: Transport of Patients) then they have complied with the law. The attitude of St John (NT) or NTPOL would be irrelevant.

Today’s correspondent is a

… university student in [New South Wales]…, and I’m currently in the process of joining the local SES unit. However, I had a concern about my university commitments conflicting with this volunteering. As I’m sure you know, when a student is unable to attend a class or assessment due to extenuating circumstances, they can apply for consideration towards their grade or a deferred assessment. The problem is that my university’s ‘Academic Consideration Policy’ does not account for emergency service workers/volunteers (it mentions everything from military service, to work commitments, religious holidays and beyond, but there is no mention of emergency responders). Wanting to reassure myself before becoming a volunteer, I attempted to deal with this by talking to staff at the university to see if a volunteer would actually qualify for consideration. Eventually I was given the rather unconvincing answer of ‘we don’t really know; it would probably come down to the separate judgement of each subject coordinator’. Having met most of my subject coordinators, my consideration being left to their judgement with no guidance from formal policies is a little alarming. Suppose there is a large flood I have to attend during an exam time, or something similar?

Getting to the heart of my question; is a university obligated by law to make allowances for students that are involved in emergency volunteering? I have searched briefly through some legislation myself and found protections in the Fair Work Act for employees that volunteer during emergencies, but I can’t find any mention of students.

The short answer, and pretty much the long answer too, is ‘no, a university is not obligated by law to make allowances for students that are involved in emergency volunteering’.  After that sort of opening statement, I would usually go onto explore ‘the law’ but given there is no legal obligation of that sort, there is no law to cite.  As my correspondent has noted there are protections for employees but not for students.

But I’ll wander out of my ‘lane’ for a minute.  As a university academic I am aware that all universities have a special consideration/deferred assessment policy.  Special consideration has always confused me; I’m never sure what to do with it. A student submits work, you assess it, how can you then give a higher mark on the basis that they may have produced a different result in different circumstances. The transcript does not say ‘Distinction (well not really but it might have been)’.  But there were circumstances were a student did have say Distinction results throughout the semester except for the one affected assessment task and their final result was one mark off a Distinction so you would rely on the ‘special circumstances’ to push them over.  I’m sure most academics would by sympathetic particularly as they live in the same community and will be aware of local floods or significant ones requiring out of area assistance.

Deferred assessment is always problematic.  Students putting off their exams from say November to the ‘special exam period’ in January or February never really do themselves any favours.

With my academic hat on, I’d be confident to say ‘I’m sure your teachers will give whatever lee way they can, but their options are limited and if results are important, put your best foot forward’.

Putting on a different hat, this time as someone who’s been involved, one way or another, with the volunteer emergency services since I was 13 and during my university studies, I don’t think you will find any service, or any unit controller, that doesn’t say ‘put your family, job and studies first’.   The question ‘Suppose there is a large flood I have to attend during an exam time, or something similar?’ demonstrates a misunderstanding of the concept of volunteering.  If there is a large flood, or something similar, a volunteer does not ‘have’ to attend, they attend if they can. And one of the factors that determines whether they can is other commitments such as exams.  University students may not be able to respond during exam time but may have more availability than others during the summer break (if that still exists and the university hasn’t moved to Trimesters).  And units located near universities that draw on students know that and should accommodate that.

I would urge my correspondent to discuss the matter with his or her local unit leader. I’m sure any of them would say ‘if you can’t come due to exams, that’s fine’.

Conclusion

As I said, the last two observations are outside my proper scope of reporting on the law.  The legal answer is ‘a university is not obligated by law to make allowances for students that are involved in emergency volunteering’.

 

Today’s correspondent has referred me to an article in the New York Times headed ‘A Prisoner Who Briefly Died Argues That He’s Served His Life Sentence’.  The gist of the argument is that the prisoner who suffered a cardiac arrest had died, and therefore his sentence had ended, even though he was resuscitated. The article says the argument ‘was not without precedent’ but that doesn’t make it any less axiomatically stupid.  A person standing in a court room is not dead.

My correspondent asks, whether in Australia, a ‘life sentence [would] be over following a period of being clinically dead?’ The answer is categorically ‘no’.

But rather than dismiss it for the stupidity it is (noting it’s the argument that’s stupid, not the correspondent who asked the question given someone has in fact suggested it) we can look at some law.  The law in every Australian state and territory says that death has occurred when there is ‘irreversible cessation of function of the person’s brain’ or ‘irreversible cessation of circulation of blood in the person’s body’ (Transplantation and Anatomy Act 1978 (ACT) s 45; Human Tissue Act 1983 (NSW) s 33; Criminal Code (NT) cl 1; Transplantation and Anatomy Act 1979 (Qld) s 45; Death Definition Act 1983 (SA) s 2; Human Tissue Act 1985 (Tas) s 27A; Human Tissue Act 1982 (Vic) s 41; Interpretation Act 1984 (WA) s 13C).

The key word is ‘irreversible’.  A person who has a cardiac arrest is having a medical emergency. They may or may not be dead. Because we cannot know we encourage people to perform CPR, used AEDs and call for assistance. If the person is resuscitated to return of spontaneous circulation the ‘cessation of circulation of blood in the person’s body’ was not irreversible and they were not dead.  If it was never reversible it may be that CPR and other treatment were administered to a dead person.

Death is a permanent state of affairs. If you are dead you are dead for the rest of time. You cannot be dead and then not dead (Zombie apocalypse excepted). The prisoner in the US was not dead; he was nearly dead. If a prisoner in Australia has a cardiac arrest and is resuscitated, he or she is not dead. They have never been dead; they have been critically unwell. If they are not dead, they are still under sentence and remain under sentence until they are dead.

 

Today’s question comes from ‘a student’ who refers to a ‘situation in emergency unit [that] concerned me’.  If what follows is a real case, then one has to remember that I am speaking generally and not giving legal advice. Every case turns on its facts; all I can do is discuss principles. On the other hand, if this is an assignment question, do make sure due credit is given when writing your answer.  I am asked to:

… assume there was an unconscious patient in emergency that had head injury and is bleeding. The practitioner who was treating him gave him a medicine that he was allergic to, but the practitioner could not have known that as the patient was unconscious. As the result when the patient started to recover, he had gone blind and sues the practitioner. What is the law here and was the doctor negligent?

I’ll assume this happened in NSW. The law is that it is axiomatic that a doctor owes a duty to provide reasonable care to a patient. There is no issue that there is a duty of care. The question is, did this conduct amount to a breach of duty.

That question has to be answered without the benefit of hindsight, that is from the position of the practitioner making the decision. Presumably it is known that some people are allergic to this drug and that a consequence of that can be blindness but that does not mean the drug can never be given. The fact that the patient suffered a loss does not mean that the treatment was negligent.

To determine what is (or was) reasonable a doctor (and ultimately a court) has to weigh up what was the risk of that allergy (in what percentage of the population does it occur and of the allergic population how common is blindness) versus whatever benefit the drug gives. To answer that a doctor would need to be informed by the prescribing protocols for the drug (ie what does the manufacturer say about indications and contra-indications) and by professional opinion.  To cite the law, the Civil Liability Act 2002 (NSW) s 5B(2) says:

In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things:

(a) the probability that the harm would occur if care were not taken,

(b) the likely seriousness of the harm,

(c) the burden of taking precautions to avoid the risk of harm,

(d) the social utility of the activity that creates the risk of harm.

The doctor has to consider those factors ((a)-(d)) before giving the medication. If the risk of blindness due to allergy is very low (eg 1:1 000 000 000) (s 5B(2)(a)) but the drug provides a very important therapeutic benefit, is required urgently and is likely to mean the difference between life and death (s 5B2(d)); there is no other efficacious treatment that can be given whilst inquiries are made about the patient’s history (s 5B(2)(c)) then it may have been reasonable to give the drug even though the risk of blindness was a very serious risk, but so is death (s 5B(b)).

Change the facts and figures: increase the likelihood of harm, decrease the therapeutic benefit, if the medicine was not required urgently or there were other equally efficacious treatments – and the conclusion changes.

We are all aware of the recent protests in Sydney in response to the death of George Floyd in the United States and the tragedy of continuing deaths of aboriginal persons whilst in custody in Australia. (According to The Guardian ‘There have been at least 434 deaths since the Royal Commission into Aboriginal Deaths in Custody ended in 1991’).  The question is: ‘how was this permitted given strict public health orders in New South Wales?’

I have written on challenging COVID restrictions and one might think that someone took the matter to the NSW Supreme Court and argued that the restrictions were unconstitutional because they unnecessarily restricted the exercise of the implied right of free political communication in the Australian constitution or some international treaty. Or perhaps that the Chief Health Officer did not have the power to make the public health orders.  The answer is far less interesting and demonstrates the role of the courts in applying the law.  The answer lies in the Summary Offences Act 1988 (NSW) ss 22-27.

I have previously made the point that under Australian law, as a general rule, a person (or people) can do what they like unless there is a law that says you cannot.  You don’t need permission to walk down the street holding a placard.  You don’t need permission to have a mate join you and you both walk down the street holding placard. Pre COVID you could have 2 mates, 20, 200 or 2000.  But when you get to numbers that size it’s going to cause a problem for others so a group of 2000 may commit offences such as obstructing traffic, some people might be offended, etc.

This is where the Summary Offences Act comes in. A public assembly may be ‘authorised’ (s 23). To get an assembly authorised the organisers have to give notice to the police that provides the details and is on the form required by s 23.  Having received the form the Commissioner of Police can tell the organiser that he or she does not oppose the public assembly in which case it is approved. If the Commissioner does object to the assembly and the notice was given 7 or more days before the assembly, the Commissioner has to ask the Court to prohibit the assembly (s 25). If the notice was given to the Commissioner in less than 7 days before the assembly then if they want to proceed the organisers have to ask the Court to authorise the assembly (s 26).

Section 24 says:

If an authorised public assembly is held substantially in accordance with the particulars furnished with respect to it under section 23 (1) (c) or, if those particulars are amended by agreement between the Commissioner and the organiser, in accordance with those particulars as amended and in accordance with any prescribed requirements, a person is not, by reason of any thing done or omitted to be done by the person for the purpose only of participating in that public assembly, guilty of any offence relating to participating in an unlawful assembly or the obstruction of any person, vehicle or vessel in a public place.

The Appeal judges, in Bassi v Commissioner of Police (NSW) [2020] NSWCA 109, at [12], described the effect of s 24 this way:

… the Summary Offences Act creates a regime whereby a proposed public assembly may secure the status of an “authorised public assembly”. A person who participates in such an assembly, so long as it is conducted substantially in accordance with the previously notified details, will not be guilty of any offence relating to participating in an unlawful assembly or the obstruction of any person, vehicle or vessel in a public place.

So what happened in Sydney?

According to the NSW Court of Appeal the organisers served a notice on the Commissioner on 29 May 2020 regarding a proposed assembly to be held on 6 June 2020.  The original notice said that it was expected that about 50 people would attend but it was soon apparent that the public opinion was such that many more would come. In a meeting between organisers and police, held on 4 June, it was estimated that there would be 5000 people. The details of how the event would be run was negotiated with police.

The Appellant [the event organiser] understood that the Commissioner agreed with this change of proposal and did not oppose the conduct of an assembly in amended form. An email sent by the Police to the Appellant on 4 June 2020 appeared to support this view. On 5 June 2020, however, the Commissioner of Police commenced proceedings to prohibit the conduct of the proposed public assembly.

Before the Supreme Court Fagan J held that the amendments made on 4 June constituted a new notice. Because it was served with less than 7 days’ notice, and the Commissioner objected, it was incumbent upon the organisers to persuade the court to authorise the assembly.  At [34] the Court of Appeal said:

In the circumstances of the case, after earnest and no doubt anxious consideration by reference to the powerful competing considerations … and with proper and genuine consideration of the importance of the purpose and aims of the proposed assembly … the primary judge [ie Fagan J] nevertheless declined to authorise the assembly. In reaching that decision, the primary judge drew on evidence of, amongst others, the Chief Health Officer and Deputy Secretary for Population and Public Health in NSW, Dr Kerry Chant, who had sworn an affidavit that was read in the proceedings at first instance.

The Court of Appeal (Bathurst CJ, Bell P, Leeming JA) unanimously agreed that the trial judge made errors of law, in particular the Court was of the view that the amendments made on 4 June did not constitute a new notice. I have quoted s 24, above, and it refers to circumstances where ‘particulars are amended by agreement between the Commissioner and the organiser’. The Court said (at [17]):

… (iii) the Summary Offences Act expressly contemplates, in s 24, that the particulars of a statutory notice of intention to hold a public assembly may be amended by agreement between the Commissioner and the organiser of the proposed public assembly;

(iv) this reflects the scope for negotiation and co-operation between the Police and the organiser as to the details and proposed manner in which the public assembly is to be conducted;…

The Court of Appeal found that the notice issued on 4 June (and in fact drafted by police on Mr Bassi’s behalf) was an amendment as contemplated by s 24, not a new notice. Because the police had seven days notice it was incumbent on the Commissioner to persuade the court to prohibit the assembly.  It was not incumbent on the organiser to persuade the court to authorise the assembly.

Further the court referred to email correspondence between police and Mr Bassi, in particular an email where the police redrafted the form to match the agreement that had been reached (see [42]). That email was communication to Mr Bassi that the Commissioner did not object to the assembly and was therefore confirmation that the assembly was authorised (s 23(1)(f)).

At [44] the Court said:

Plainly enough, at some point between the sending of this email on 4 June 2020 on which Mr Bassi was entitled in the circumstances to rely upon and 5 June 2020, the Commissioner’s view as to the advisability of the public assembly going ahead changed, and he accordingly and appropriately made an application to this Court. No criticism should be made of that change of stance; we live in challenging and uncertain times where the exigencies of public health are of critical importance and the situation is no doubt extremely fluid. Considerations of public order, or further information becoming known to the Commissioner, may require flexibility of approach.

The Commissioner made an application under s 25 but before the court of appeal that failed for two reasons. The first was that in the Court of Appeal, the Commissioner had argued that the trial judge had refused Mr Bassi’s application under s 26 and there was no appeal from that decision (s 27). It was only when it was clear that the Court did not agree that the lawyers tried to rely on s 25. The court said (at [49]) that this argument was rejected, first because ‘although the matter proceeded with great expedition, any such application should have been flagged at the very outset of the urgent hearing. By the time it was made orally, the public assembly was within approximately 20 minutes of commencing.’

Second there were a number of steps that had to be taken before a s 25 application could be made, and the Commissioner had done none of them so the application ‘would have been futile in circumstances’ ([50]).

Prohibited assembly is a misnomer

Section 25 provides that the Commissioner may make an application to have an assembly prohibited. This is a misnomer.  If an application under s 25 is approved, there is no offence of organising or taking part in the assembly. The only effect of an order under s 25 is that anyone who takes part in the assembly does not enjoy the benefit of s 24; that is they are liable to prosecution for ‘ any offence relating to participating in an unlawful assembly or the obstruction of any person, vehicle or vessel in a public place’ but the order of the court does not, of itself, make the assembly ‘unlawful’.  That would have to be found elsewhere.

An assembly is either authorised (ss 23 and 26) or it is not. The legal protection comes with authorisation (s 24) but ‘non authorisation’ does not make the assembly unlawful or expose anyone to any prosecution simply for being there and taking part. To describe an order under s 25 as prohibiting the assembly sounds good but it’s not what the effect of an order is; the effect of the order is that it is not authorised and s 24 does not provide participants protection for the enforcement of any other law.

Balancing rights – Conclusion

This could be seen as a case where the court had to balance the right to protest against the right of the authorities to restrict movement because of public health emergency and the right of others to face a reduced risk of pandemic spread. For many, including some readers and contributors to this blog, they may want to look at this case of evidence of overreach by the government and the role of the court as saviour of fundamental freedoms. I’m afraid the result was not nearly as interesting. As the court said (at [7]):

Competing public interests of great importance were thus potentially engaged but… the issues before this Court were very narrow. Our decision did not ultimately turn on a difficult weighing exercise that resolution of that competition would necessarily have required; rather, the appeal was allowed by reason of the operation of the provisions of the Summary Offences Act in the context of a notice of intention to hold a public assembly (the Notice of Intention) which had been given pursuant to that Act by Mr Bassi to the Commissioner on 29 May 2020.

Nothing to do with human rights but the words of the statute. The organisers served a notice, the commissioner did not object and so the organisers and participants were entitled to rely on that authorisation. When the Commissioner did object it was all too late, putting the relevant objection to the court twenty minutes before the assembly was due to commence.

It confirms my view that the way to get what you want is to fill in the correct form and pay the prescribed fee.

Today’s question is really about the meaning of the word ‘professional’.  I’m told that in South Australia,

… SA ambulance rolled out new ambulances to volunteer (unpaid) stations which have wording, “Professional service provided by volunteers from…” see https://www.abc.net.au/news/2020-06-03/ambulance-volunteers-rewarded-with-new-fleet/12317444

There is a clear divide on thoughts of the above from paid career paramedics, volunteers (cert IV) and paid ambulance officers (cert IV). Not that I think qualifications matter, the simple fact is healthcare professionals are not crewing these ambulances when the public think they are.

Are there any issues of misrepresentation of the workforce to the public? Can non paramedics say they are professionals in the prehospital care or ambulance context?

My short answer is ‘no; there are no issues’. Let us now look at that in detail.

The Health Practitioner Regulation National Law protects the use of titles. There is no suggestion that the volunteers are using the title paramedic (noting of course that a volunteer may indeed be a registered paramedic).

The Australian Consumer law provides that a person shall not, in trade or commerce, engage in conduct that is misleading or deceptive (Competition and Consumer Act 2010 (Cth); Schedule 2, cll 18 and 29).  Clause 29 says

(1) A person must not, in trade or commerce, in connection with the supply or possible supply of … services or in connection with the promotion by any means of the supply or use of … services:…

(b) make a false or misleading representation that services are of a particular standard, quality, value or grade…

First, I doubt SA Ambulance are engaged in trade or commerce but they may be – see United Firefighters Union of Australia (‘UFU’) v Country Fire Authority (‘CFA’) [2014] FCA 17 (31 January 2014) (February 12, 2014)).

If we assume SA Ambulance is engaged in trade and commerce, can a claim of ‘Professional service provided by volunteers…’ be misleading or deceptive? The answer to that depends what professional means.  It may mean a person who is paid rather than an amateur or hobbyist, or it may mean a member of a profession.  It is axiomatic that volunteers are not being paid; and if we put aside volunteers who are registered paramedics we might infer that many, if not most are not members of a recognised, registered healthcare profession. On those meanings the volunteers are not professionals; but they are just two of many possible meanings of the word ‘professional’.

The Cambridge dictionary (online) defines professional as:

• relating to work that needs special training or education:
• having the qualities that you connect with trained and skilled people, such as effectiveness, skill, organization, and seriousness of manner:
• used to describe someone who does a job that people usually do as a hobby:
• having the type of job that is respected because it involves a high level of education and training:

The Collins English dictionary  has similar definitions and adds as an adjective ‘If you say that something that someone does or produces is professional, you approve of it because you think that it is of a very high standard.

The online Oxford dictionary for English learners has these definitions (emphasis in original):

• doing something as a paid job rather than as a hobby…
• (of sport) done as a paid job rather than as a hobby…
• [only before noun] connected with a job that needs special training or skill, especially one that needs a high level of education…
• (of people) having a job which needs special training and a high level of education…
• showing that somebody is well trained and has a lot of skill SYNONYM competent
  He dealt with the problem in a highly professional
  Many of the performers were very professional.
  People trust websites that look professional.
  professional in somethingThe consultant was very friendly but professional in his approach.

If the words used are ‘‘Professional service provided by volunteers…’ the word ‘professional’ is an adjective being used to describe the service, not the service providers. SA Ambulance are claiming that their volunteers will provide a professional service that is a service that ‘needs special training and a high level of education’, is delivered to ‘a very high standard’ and with ‘the qualities that you connect with trained and skilled people, such as effectiveness, skill, organization, and seriousness of manner’ even though the people providing that service are volunteers, not someone getting paid to do the job.

Now one might think that volunteers never do a good job but clearly SA Ambulance doesn’t think that otherwise they would not use volunteers. (And if anyone does think that, then they have a pretty low opinion of volunteers with Australia’s emergency services – our volunteer firefighters, rescue and emergency officers and ambulance officers are and should be recognised as providing professional quality services even though they don’t get paid). And even if on occasions an individual fails to live up to professional standards (as might paid paramedics) that doesn’t mean that an agency cannot make a claim as to the level of service they intend and expect to provide.

Conclusion

I fail to see how any person could infer that a statement ‘Professional service provided by volunteers from…’ is holding out that the volunteers are either paid or necessarily a member of a registered health professional.  It is a description of the quality of the service provided. It claims that the volunteers are providing a skilled service, with a high level of care with ‘effectiveness, skill, organization, and seriousness of manner’.

Non paramedics cannot hold themselves out as paramedics.  There is nothing to stop them, or the organisation for which they volunteer, recognising that they provide a professional service.

On its plain English language meaning there is no potential to hold that this claim is misleading or deceptive. Anyone who thinks it is misleading is not reading the English word ‘professional’ in its ordinary, but multiple meanings.

Today’s question is

… about s20 & s22 of the Mental Health Act (NSW)… There is nothing in the Act or MOU (Police/Ambulance) that I am aware of about what to do if the situation changes or further information becomes available and the person no longer meets the criteria of the sections. I do not believe that you could continue to transport under these sections in this instance.

The Mental Health Act 2007 (NSW) s 20 says:

(1) An ambulance officer who provides ambulance services in relation to a person may take the person to a declared mental health facility if the officer believes on reasonable grounds that the person appears to be mentally ill or mentally disturbed and that it would be beneficial to the person’s welfare to be dealt with in accordance with this Act.

(2) An ambulance officer may request police assistance if of the opinion that there are serious concerns relating to the safety of the person or other persons if the person is taken to a mental health facility without the assistance of a police officer.

Section 22 says:

(1) A police officer who, in any place, finds a person who appears to be mentally ill or mentally disturbed may apprehend the person and take the person to a declared mental health facility if the officer believes on reasonable grounds that–

(a) the person is committing or has recently committed an offence or that the person has recently attempted to kill himself or herself or that it is probable that the person will attempt to kill himself or herself or any other person or attempt to cause serious physical harm to himself or herself or any other person, and

(b) it would be beneficial to the person’s welfare to be dealt with in accordance with this Act, rather than otherwise in accordance with law.

(2) A police officer may apprehend a person under this section without a warrant and may exercise any powers conferred by section 81 on a person who is authorised under that section to take a person to a mental health facility or another health facility.

Ambulance officers/paramedics

I have previously argued that I don’t think s 20 gives NSW paramedics nearly as much authority or power as they, and NSW Ambulance, thinks it does (see Mental Health Act 2007 (NSW) s 20 – a summary of my current thinking (October 7, 2019)).  The aim of the Mental Health Act is to protect those that are mentally ill but also to facilitate their treatment whilst given the most effect to their autonomous choices as can be accommodated in the circumstances of their illness.  Section 3 says that:

The objects of this Act are–

(a) to provide for the care and treatment of, and to promote the recovery of, persons who are mentally ill or mentally disordered, and

(b) to facilitate the care and treatment of those persons through community care facilities, and

(c) to facilitate the provision of hospital care for those persons on a voluntary basis where appropriate and, in a limited number of situations, on an involuntary basis, and

(d) while protecting the civil rights of those persons, to give an opportunity for those persons to have access to appropriate care and, where necessary, to provide for treatment for their own protection or the protection of others, and

(e) to facilitate the involvement of those persons, and persons caring for them, in decisions involving appropriate care and treatment.

Subparagraphs (c) and (d) are particularly relevant. See also s 68 Principles of Care and Treatment.

If we think of the Act as being protective and beneficial then I think we get a better view of s 20.  Section 20 provides that where a NSW paramedic finds a person whom that paramedic thinks is mentally ill, then the patient can be transported to a mental health facility. It doesn’t say (as I argue in my earlier post) that they can be treated against their wishes if they are competent to form and express a view.  It says they can be taken there instead of, say to the nearest general hospital where they may have to wait in the emergency department to be assessed which is not in anyone’s best interests.

If we consider the threshold for s 20, that is the ambulance officer ‘believes on reasonable grounds that the person appears to be mentally ill or mentally disturbed and that it would be beneficial to the person’s welfare to be dealt with in accordance with this Act’ it has to follow that the section will not apply if those beliefs are no longer held. If for example the paramedic forms the view that the person is not mentally ill but has a traumatic injury and that explains their behaviour it would be perverse if they had to continue to the mental health facility because that was their intended destination when the ambulance doors were shut.

Equally if they form the view that the person is not mentally ill then it would be perverse to insist on transporting them to a facility where they did not need to go. If paramedics were treating someone for a condition and then got further information that made it more likely that the patient had another condition. They are treated for the second condition and recover such that they don’t need to go to hospital, then it would be perverse to insist on taking them to hospital on the basis of the first, incorrect, diagnosis.

On the other hand if you did form the view that s 20 did apply, but then changed your mind, there would be nothing to stop you continuing to the mental health facility if the patient wanted you to; just as paramedics sometimes transport a person to hospital even if in the paramedic’s view, such transport is not really required.  One would have to consider all the circumstances such as if you stop transport now, what’s the person going to do? You can just push them out onto the street and tell them to call a cab. And they may believe they are mentally ill and require treatment even if you do not. It may be ok in those circumstances to leave a person with friends or family, but if you have already removed them into an ambulance you still have to take reasonable care for their welfare.  But in those circumstance s 20 is hardly relevant.

Police

As I’ve said I don’t think the Act actually empowers ambulance officers to detain a person who, although mentally ill, remains competent and refuses treatment.  In those circumstances the power to detain a person against their will is given to police.

Police can arrest a person for an offence. Before they arrest someone, they must have reasonable grounds to suspect the person has committed an offence and must arrest with the intention of putting the person before the court. If those criteria are met, the arrest is lawful even if, having made the arrest, subsequent enquiries reveal that the person did not commit the offence and they release them from custody. Having made the arrest they are not obliged to keep the person in custody and put them before the court even though they no longer believe that the person committed the offence (Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) ss 99 and 105). Equally if a person is detained under the Mental Health Act 2007 (NSW) s 22 continued detention could not be justified if the officer no longer held the views required by that section. Such detention would become a false imprisonment.

Conclusion

As with any medical care, treatment has to be flexible and change to take into account further relevant information. Section 20 allows paramedics to take a person to a mental health facility. If you propose to act under that section, or commencing action and then information means you no longer think that treatment is relevant then you must not only have the authority, but the obligation to change your treatment to suit what you know.  Anything else would be perverse.

IT follows that it must be the case that if ‘the situation changes or further information becomes available and’ a treating paramedic or detaining police officer believes that ‘the person no longer meets the criteria of the sections’ 20 or 22 that further action in reliance of those sections, particularly if it involved detention (s 20) or involuntary treatment (s 81) could not be justified.  That does not mean that nothing can be done, reasonable care must still be taken, and given, but those sections would have no role to play.

Those concerned about the loss of liberty in the times of COVID, and even more so, those who believe or hope that that there is some paramount common law rights that cannot be curtailed by government, will be interested in this report from Larry Bennett. Mr Bennett is a US attorney and firefighter and is Program Chair, Fire Science & Emergency Management at the University of Cincinnati. He writes a newsletter on fire and EMS law in the United States.  His most recent newsletter (June 2020) reports on a decision from the Supreme Court of the United States (the equivalent of the High Court of Australia).  I quote his report in full:

U.S. SUPREME COURT – CARONA VIRUS – UPHOLDS CALIF. RESTRICTIONS ON RELIGIOUS GATHERINGS

On May 29, 2020, in South Bay United Pentecostal Church, et a. v. Gavin Newsom, Governor of California, the Court (5 to 4) denied the church’s request for an injunction, in a rare late-night ruling, and upheld the California restriction of attendance at places of worship to 25% of building capacity, or a maximum of 100 attendees. The San Diego area church had lost before a U.S. District Court judge, and also the 9th Circuit.

Chief Justice John Roberts wrote:

“Although California’s guidelines place restrictions on places of worship, those restrictions appear consistent with the Free Exercise Clause of the First Amendment. Similar or more severe restrictions apply to comparable secular gatherings, including lectures, concerts, movie showings, spectator sports, and theatrical performances, where large groups of people gather in close proximity for extended periods of time. And the Order exempts or treats more leniently only dissimilar activities, such as operating grocery stores, banks, and laundromats, in which people neither congregate in large groups nor remain in close proximity for extended periods.

***

The precise question of when restrictions on particular social activities should be lifted during the pandemic is a dynamic and fact-intensive matter subject to reasonable disagreement. Our Constitution principally entrusts ‘[t]he safety and the health of the people’ to the politically accountable officials of the States ‘to guard and protect.’ Jacobson v. Massachusetts, 197 U. S. 11, 38 (1905). When those officials ‘undertake[] to act in areas fraught with medical and scientific uncertainties,’ their latitude ‘must be especially broad.’ Marshall v. United States, 414 U. S. 417, 427 (1974). Where those broad limits are not exceeded, they should not be subject to second-guessing by an ‘unelected federal judiciary,’ which lacks the background, competence, and expertise to assess public health and is not ac-countable to the people. See Garciav. San Antonio Metropolitan Transit Authority, 469 U. S. 528, 545 (1985).”

Dissenting Opinion by Justice Brent Kavanaugh:

“I would grant the Church’s requested temporary injunction because California’s latest safety guidelines discriminate against places of worship and in favor of comparable secular businesses. Such discrimination violates the First Amendment.

***

The basic constitutional problem is that comparable secular businesses are not subject to a 25% occupancy cap, including factories, offices, supermarkets, restaurants, retail stores, pharmacies, shopping malls, pet grooming shops, bookstores, florists, hair salons, and cannabis dispensaries.

Legal Lessons Learned: There has been litigation throughout the nation challenging corona virus restrictions; this is the first case to reach the U.S. Supreme Court.

Note: On May 6, 2020, the U.S. Supreme Court declined to hear an appeal by PA businesses seeking an injunction. The Court will not hear an appeal unless at least 4 Justices agree to hear case. See article: “U.S. Supreme Court rejects request to end Pennsylvania’s coronavirus lockdown.”

For related, Australian posts, see:

• Common law rights v Parliament’s legislation (May 17, 2020); and
• Challenging COVID restrictions – part 1 (April 23, 2020).

Today’s correspondent wants to raise a story of a person who is both a volunteer and employee in NSW emergency services who is reported to have been convicted of some sexual offence. I do not know the details; I do not want to know the details.

The question I’m asked, omitting any details is:

Are you able to clarify, in addition to your previous articles, what responsibility an employer has if they are using contractors with their own ABN compared to hiring permanent or casual staff and whether NSW WWCC or NPC would even disclose such offences?

The inference that I draw from the question (and some omitted material) is that at least in my correspondent’s mind, this person should not be employed because of this record.  In my view that doesn’t follow. First there are many offences that can see one registered as a sex offender (see Child Protection (Offenders Registration) Act 2000 (NSW) definitions of ‘class 1’ and ‘class 2’ offences).  This can include more than one incidence consensual sexual intercourse say between two young persons both aged 15 years and 11 months (ss s3A-3C).

Even in registered professions, a criminal conviction does not mean you cannot be registered.  An applicant for registration as a paramedic would need to disclose a criminal conviction but as the Paramedicine Board’s Criminal History Registration Standard says ‘In deciding whether a health practitioner’s criminal history is relevant to the practice of their profession, the Board will consider the following factors…’ and there then follows a list of 10 factors to be considered.  A conviction is not automatic disqualification.

And the flip side of the adage ‘do the crime; do the time’ is that if you have served the penalty imposed by the court then that is the punishment. Ongoing punishment does not allow people to make mistakes and denies the idea the criminal punishment has any sort of rehabilitative effect (Granted, though, that may be no more than idealistic wishful thinking.  And we have seen with more and more law and order debates the idea of anything short of life imprisonment for any offence, ever, so politicians can decide when mercy is politically acceptable, is just going ‘weak on crime’.  Today a conviction does tend to haunt for life as this very discussion demonstrates).

And neither a prior conviction, nor a clear record, is proof that a person will or will not offend in the future.  Every offender was a first offender at some time; and had an impeccable record before that.

It is interesting that in NSW the relevant legislation is the Child Protection (Offenders Registration) Act 2000 (NSW) so it relates to children (ie persons under the age of 18).  Compare that to the ACT that provides a Working with Vulnerable Persons Check – see Working with Vulnerable People (Background Checking) Act 2011 (ACT). Presumably the circumstances when one needs a working with vulnerable persons check are wider than circumstances where one needs a child protection check.

What follows, I think is that as a matter of law, if you are doing a job that does not require you to hold a working with children/vulnerable person clearance, a prior conviction is something an employer may want to consider as part of his or her risk assessment.  Like the Paramedicine Board an employer, if they know of the conviction, may consider it and still decide that a person is a suitable employee.

So what is the obligation of a person who contracts with another to provide services? If I’m running a business and decide to engage a contractor to provide services, eg event health services, I cannot be expected to vet the CV of every employee. One of the reasons I would engage a contractor is because I cannot vet the CV of every employee if I don’t know that all the qualifications or skill sets mean or what I need for my event.  A sensible organiser would assess the quality of the potential contractor, and put a clause in a contract to the effect that the contractor warrants that all the people they supply are qualified and ‘fit and proper’ but I cannot see that there is much more they could reasonably do.  And a previous conviction, as discussed above, many not mean that the person is not ‘fit and proper’.  It depends on all the circumstances.

I have no idea ‘whether NSW WWCC or NPC [National Police Check] would even disclose such offences’. I note that a sample police check on the Australian Federal Police website says:

Legislation in various state and territories and the Commonwealth of Australia restricts the information that can be disclosed about a person’s court outcomes unless specific exemptions apply under law. Legislative exemptions can include specific types of employment, voluntary work, licence or membership of a profession. The information provided will include all disclosable convictions or findings of guilt by a court.

 

Today’s question relates to

… the recent television advertising in Western Australia in relation to both RAC and AAMI offering “free” and priority roadside assistance whether a member of the automotive club or insurance companies to “first responders”. This offer is advertised during the COVID 19 pandemic.

This I believe is an offence under various Acts and Code of Conduct across various services.

I am sure this is not limited to the two examples I have provided for paid services, but may be extended in to breeching conditions of other voluntary organisations, statuary authorities, and community groups,

I have given the following examples from the Public Sector Management Act 1994 and the Police Act 1892.  The Western Australia Police Code of Conduct 2010 says

This Code applies to persons employed under the Police Act 1892 and persons employed by the Commissioner of Police under the Public Sector Management Act 1994.

 The Code of Conduct 2010 refers to receiving gifts (p. 6)

You must not solicit, give, or accept gifts or benefits for yourself, any other person or on behalf of the WA Police, unless authorised to do so in accordance with policy.

Accepting a gift or benefit in the course of your duty can be appropriate when the acceptance of those gifts or benefits will be beneficial to the employee’s work and reputation and will build positive social relations between the WA Police and the community, such as the gaining of gifts and gratuities (including fundraising) for registered charitable organisations. In most circumstances, gifts should be declined.

The reason for this is that accepting gifts may affect, or may be perceived as affecting, the performance of the official duties of employees. If any doubt exists, seek advice from your supervisor or Officer in Charge

In WA Local Government under the Local Government Act 1995 refers to the acceptance of gifts by elected members and staff. [My correspondent then provides the following which I infer is from a particular local government bylaw, it is not a quote from the Local Government Act 1995 (WA)):

1. 2. ACCEPTANCE OF GIFTS 2.1

Terms Used:

a) A gift means a disposition of property or any other financial benefit, including contributions to travel, offers of hospitality and sponsorship made by an external person or organisation to a City of [REDACTED] Member or Designated Employee. It does not include property acquired by will, gifted by a relative, or offered by a statutory authority, government agency, or a non-profit association for professional training (Note: this definition does not include electoral gifts provided for by the Local Government (Elections) Regulations 1997.)

b) A notifiable gift is a gift worth between $50 and $300, or a number of gifts given by the same person within a 6 month period, with a total value between $50 and $300.

c) A prohibited gift is a gift worth $300 or more, or a number of gifts given by the same person within a 6 month period, with a total value of $300 or more.

d) An annual return is consistent with Section 5.76 of the Local Government Act 1995, a return lodged by a Relevant Person with the Chief Executive Officer, or by the Chief Executive Officer with the Mayor or Commissioner of the City of [REDACTED].

e) An interested person is a person who is undertaking, is seeking to undertake, or is reasonable to believe is intending to undertaken an activity involving the City of [REDACTED]’s approval, contracting or any other form of decision making discretion. An interested person may be the owner or an Officer, Employee, agent or representative of an entity that is undertaking, is seeking to undertake, or is reasonable to believe is intending to undertake an activity involving the City of [REDACTED]’s approval, contracting or any other form of decision making discretion.

 My question to you is that a business of advertising and offering a gratuity to a member of various organisations committing or encouraging an offence to be committed?

Not knowing what other states and territories are being offered by various businesses, the examples I have given are applicable to WA, I would be interested in your legal opinion on this matter.

My immediate reaction is ‘no’ but let’s look into it further.

The authors of Hayes and Eburn Criminal Law and Procedure in NSW (6th ed, 2019, Lexis/Nexis; and even though it has my name on it, I did not contribute to the 6th ed, the authors are Rod Howie, Paul Sattler and Marissa Hood) say (at [11.46]):

To be guilty of counselling, procuring or otherwise assisting a person to commit an offence, the accessory before the fact must be aware of that the principal offender intends to do. The fault element is ‘knowledge’ of all the essential elements that make up the offence that the principal offender will commit. As can be seen from Giorgianni recklessness, that is foresight that the principal offender may commit an offence, is not enough.

That is the accessory has to be encouraging the person to commit an offence (even if they do not have to know that it is an offence).

But that’s NSW. WA is referred to as a code state, that is in theory at least, all the criminal law is contained in the criminal code unlike the ‘common law’ states such as NSW and Victoria.

The Criminal Code 1913 (WA) says at s 7:

When an offence is committed, each of the following persons is deemed to have taken part in committing the offence and to be guilty of the offence, and may be charged with actually committing it, that is to say — … (d) Any person who counsels or procures any other person to commit the offence….

Under either common law or the Criminal Code are the RAC and AAMI counselling the commission of an offence? I cannot see it. They are not encouraging people to breach their code of conduct. Not everyone who is offered the service would be breaching a code (assuming this is a breach) and the auto clubs are not saying ‘and ring us even if you boss tells you not to’. They are offering a service, it is up to police or local government employees to decide whether to take that up and therefore it is up to them to decide whether that would be improper, or not.  Licensed premises are offering alcohol for sale but they are not counselling drinking on duty by police.  I could offer a police a gift without knowing it’s illegal; it’s up to the officer to say ‘no, I cannot’. This is an offer; it’s up to individuals to decide whether they can or should accept the offer.

Would it be an offence? I doubt it. The police code of conduct refers to soliciting, giving, or accepting benefits. Individuals are not soliciting (ie asking) for a benefit but let us assume this is an example of accepting a benefit.  The code goes onto say:

Accepting a … benefit in the course of your duty can be appropriate when the acceptance of those gifts or benefits will be beneficial to the employee’s work and reputation and will build positive social relations between the WA Police and the community, such as …

The example that follows is an example but the words ‘such as’ make it clear it is not the only example.  If a police officer has to go to work and his or her car won’t start and so he or she calls the RAC and they come and get it started, that would ‘be beneficial to the employee’s work and reputation’ and I suggest would also help ‘build positive social relations between the WA Police and the community’ because it allows the community to publicly say ‘we acknowledge your service’. I cannot see that anyone would think it was contrary to the code. It might be if the officer did it regularly or started using their office to get the service from someone else, eg a friend has broken down so the officer rings and identifies him or herself as an officer to take advantage of the offer.  But the RAC and AAMI are not counselling or encouraging anyone to do that.

As for local government, recognising for example that in WA local governments operate Bush Fire Brigades and this offer may extend to them, it’s correct that the Local Government Act 1995 (WA) has provisions about gives to councillors and the CEO (ss 5.87A and 5.87B) but that is not relevant here as this offer is not being made to the CEO or councillors.  Would it be corrupt? The Corruption, Crime and Misconduct Act 2003 (WA) does not actually define ‘corruption’ but I cannot see it unless the person making the offer, or accepting it, is expecting to, or prepared to act contrary to their office in return.

Conclusion

Personally I cannot see that accepting the offer of free roadside assistance during COVID-19 would be a breach of the Police Code of Conduct or Local Government Act or I would suggest any other code of conduct provided it is not offered, or accepted, with a view to influencing how a person performs their duty, or where a person uses their office (eg as a police officer) to get the benefit for someone who is not the subject of the offer.

Even if there is a breach by a particular person because of the terms of their employment neither the RAC nor AAMI are encouraging people to accept the offer in breach of those conditions (which they cannot know).

If it’s not a breach, and if it is RAC or AAMI are not encouraging a breach, it follows that in my view the companies are NOT committing or encouraging an offence to be committed.

The Queensland Sentencing Advisory Council is reviewing penalties for assaults on police and other frontline emergency service workers, corrective services officers and other public officers in response to Terms of Reference issued to the Council by the Attorney-General and Minister for Justice, the Honourable Yvette D’Ath MP, in early December 2019.

The Council is due to report back to the Attorney-General by 31 August 2020.

Issues Paper

The Council has published an Issues Paper that explores the themes raised in preliminary submissions and is supported by the Council’s analysis of sentencing trends and reforms introduced in other Australian and overseas jurisdictions.

A high-level summary of the Issues Paper is provided and includes questions of particular interest to the Council. These questions can also be found in the full report.

A separate literature review commissioned by the Council and prepared by the Griffith Criminology Institute, has informed the Council’s work and is available for review.

Submissions

Submissions are being called as part of the Council’s review of penalties for assaults on public officers.

Submissions close on Thursday 25 June 2020, 5.00pm.

For advice on how to prepare submissions and to download the issues paper, go to the Council’s website at https://www.sentencingcouncil.qld.gov.au/terms-of-reference/assault-public-officers

 

Justice Slattery has handed down his decision In the matter of the New South Wales Rural Fire Service & Brigades Donations Fund; Application of Macdonald & Or [2020] NSWSC 604.

This was an application by the Trustees of the New South Wales Rural Fire Service & Brigades Donations Fund seeking advice from the court on how they can spend $51m donated in response to a fund-raising request by celebrity Ms Celeste Barber.

The court’s jurisdiction was found in the Trustee Act 1925 (NSW) s 63 which allows trustees to approach the court for advice.  Where the court gives advice, and the trustee acts in accordance with that advice, then the trustee is held to have met his or her obligations to apply the trust for its proper purposes ([7]).

At [9] His Honour says:

The trustees ask the Court whether, in these circumstances outlined in their statement of facts, they are justified, in the proper performance of their powers and duties as the trustees, in applying the monies in the RFS Fund to any of the following four possible objects:

1. paying money to other charities or rural fire services, whether in New South Wales or other Australian states or territories, to assist in providing relief to persons and animals affected by bushfires;
2. setting up or contributing to a fund to support rural firefighters injured while firefighting, or the families of rural firefighters killed while firefighting;
3. providing:

(i) physical health training and resources,

(ii) mental health training and resources, or

(iii) trauma counselling services,

to volunteer firefighters (as defined in Rural Fires Act, s 8), who require them in connection with performing the functions of the New South Wales Rural Fire Service, as defined by Rural Fires Act, s 9; or

4. setting up or contributing to a fund to meet the costs for volunteer rural firefighters, as defined in Rural Fires Act, s 8, to attend and complete courses that improve skills related to the volunteer-based fire and emergency services activities of the brigades, established under the Rural Fires Act.

Although Ms Barber may have originally set a target of $30000 she did not create a trust. She asked people to donate via PayPal. When they paid to PayPal it was received on the terms of the PayPal trust deed. They then distributed the money to the RFS Donations Fund in accordance with the PayPal trust deed, to be used by the RFS Donations Fund in accordance with its trust deed.

This was not a case where the RFS trust had been established to receive funds for a particular purpose and then raised more than was required for that purpose, nor was it a situation where ‘the charitable purpose [of the trust] is not sufficiently defined or because the designated objects or machinery do not exist’ ([54]).

Although the court was presented with evidence of comment made by donors and potential donors.  At [18]-[19] His Honour said:

The Court has been given a selection of the many messages that were generated on Ms Barber’s Facebook fundraising page during the appeal, mainly from donors but also some from potential donors. The selection was directed at extracting messages posted to the page which indicated that a donor directed, expected, hoped or was concerned that a donation to the appeal would be applied to another charity or recipient that was not within the objects of the RFS Fund. The aim of this exercise was to survey the range of donors that might conflict with limits in the RFS Trust Deed.

… The sample of posts they selected vividly illustrate the sentiments and range of hopes and expectations of donors. be donors

But (at [58]-[61]):

Each of the donors made a payment to the PayPal Giving Fund by way of an internet facility with published terms that stated the effect of the donation. This is so despite what the donors may have hoped or intended might be done with the money. The donors should be taken to have intended to make the payment to the PayPal Giving Fund and should be taken to have intended that it be received according to the published terms…

The various public and perhaps private statements made by Ms Barber or any of the donors do not bind the trustees’ application of the funds that they have received from the PayPal Giving Fund. The terms of the RFS Trust Deed that establishes the RFS Fund binds the trustees.

Any funds received by the trustees in that capacity must be applied only for the purposes set out in the RFS Trust Deed. Any other application of the funds would be a breach of trust…

The issue for the court therefore was which, if any, of the suggested 4 objectives are consistent with the Trust Deed. The Deed itself provides that the purposes of the Trust. The Deed says (at [38]):

The purpose of the Trust is to pay or apply the income from the Trust Fund, and such parts of the capital from the Trust Fund as the Trustees at any time and from time to time think fit as follows:

(a)   to or for the Brigades in order to enable or assist them to meet the costs of purchasing and maintaining fire-fighting equipment and facilities, providing training and resources and/or to otherwise meet the administrative expenses of the Brigades which are associated with their volunteer-based fire and emergency service activities;

(b)   for Authorised Investments which are consistent with carrying out the purpose in paragraph (a) above;

(c)   to meet the reasonable costs of the current and continuing operation and management of the Trust.”

His Honour (at [64]-[70]) advised the:

… trustees of the RFS Fund that they cannot use the donated money to give to other charities, or to donate interstate, or to help people or animals affected by bushfires…

… donations to other charities for bushfire related purposes, such a payment would not be a payment “to or for brigades” established under the Rural Fires Act. Nor is it an “Authorised Investment” under the RFS Trust Deed. Such a donation cannot be characterised as an “administrative” cost of the RFS Fund. A donation to another charity would, as the trustees have submitted, be ultra vires to the purpose of the RFS Fund and a breach of trust.

As to animals affected by bushfires, nothing in the RFS Trust Deed, clause 2.3(a) would permit such a payment. Clause 2.3(a) permits payments “to or for the Brigades” and the payment is limited to “enable or assist them” to meet the costs of various stated objectives. None of those objectives, “purchasing and maintaining firefighting equipment and facilities”, or “providing training and resources” or “meet[ing] the administrative expenses of the brigades” includes giving assistance to animals affected by bushfires. The words cannot be made to such work. And neither the trustees nor the Attorney General submit that they can.

As to the making of payments for interstate rural fire services, the words of clause 2.3(a) are equally restrictive. The “brigades” is a reference to brigades established under the Rural Fires Act, which applies to brigades established or operating within this State: Rural Fires Act, s 9(1)(a). It would not be a permissible application of trust funds for payments to be made to rural fire brigades in other States or Territories of Australia.

There is an exception to this that arises under Rural Fires Act, s 43. Under that section an “interstate fire brigade” comes under the command of an officer in charge at the fire: s 43(1)(a) and is integrated in the command structure in that manner. In a command sense, the interstate fire brigades are integrated into the command structure of the brigades and it would be permissible for their administrative expenses to be met under clause 2.3(a).

As to using the fund to ameliorate the effects of fires upon people who are not members of the brigades, in the Court’s opinion that too cannot be justified on the words of clause 2.3(a). Firstly, the payments must be “to enable or assist the brigades” to meet the specified costs of the various objectives. One would not characterise payments to members of the wider community affected by bushfires as having the necessary association with the brigades.

The trustees can set up a fund to assist injured or the families of deceased firefighters. The trust allows for money to be spent to provide resources to brigades. His Honour took the view that this included human resources ([74]-[74]).  At [75]-[78] His Honour said:

The definition of “rural fire services” in s 9(4) of the Rural Fires Act includes “the protection of persons from dangers to their safety and health, and property from destruction or damage, arising from fires in rural fire districts”: s 9(4)(b). The trustees can use the donated funds to give to brigades to address physical dangers created by the recent fires.

The trustees can use the money consistently with clause 2.3 of the trust deed (and the Rural Fires Act, s 9) to pay brigades to enable them to meet the costs of providing resources to protect persons from dangers to their safety and health arising from fires in rural fire districts. But as the trustees have submitted several conditions would apply to this use. First, the payment from the RFS Fund must still be to or for brigades for “resources”, which are to be used by the brigades. They may not be paid directly to the persons affected. Second, those resources must be used for “protection of persons from dangers to their safety and health”: within Rural Fires Act, s 9(4)(b). Third, that danger must “arise from fires”. The context of these words “arise from fires” is that the functions of the brigades are generally to prevent fires and in firefighting. The trustees submit their functions do not include the longer term remediation of the effects of fires. Dangers to safety and health arising from fires may well include the dangers caused by an immediate lack of shelter, food and water. The trustees could pay money to brigades in order for them to purchase and transport food and water to areas and people effected by fires, and to provide temporary accommodation to those who require it as a result of fires as the trustees have submitted.

… Even though it would not come within preventing and fighting fires (Rural Fires Act, s 4(a)), a fund to support the families of fallen firefighters would encourage people to volunteer to contribute to preventing and fighting fires and is permissible. In the Court’s view this is for two reasons. Clause 2.3 is aimed at supporting brigades in “providing…resources”. The Court has interpreted this as human resources. Clause 2.3(a) itself emphasises that all of the RFS Fund’s expenditure is associated with “volunteer based fire and emergency service activities”. The existence of a fund to provide longer term compensation for injuries suffered by firefighters, or to support the families of deceased firefighters is more likely to encourage volunteers. Unlike a service with a more formal command structure such as in the Australian Defence Force, the Rural Fires Act recognises this is a volunteer service comprised in large part of “volunteer rural firefighters”. Expenditure to support the process of volunteering to ensure those human resources are available is permissible.

At [80] His Honour said. That the trustees can ‘provide volunteer firefighters with a fund from which physical and mental health training can be provided, together with trauma counselling services’ and ‘Expenditure to return a firefighter to active duties is permissible under the RFS Trust Deed, as it provides “resources” to the RFS’.

The trustees may also ([81]) set up a fund ‘to meet the costs for volunteer rural firefighters to attend and complete courses that improve their skills related to the volunteer based fire and emergency services activities of the brigades’. They may also ([82]) ‘pay brigades in order to provide resources to provide that trauma counselling to firefighters who require it as a result of fires…’

Conclusion

The best conclusion is to repeat the questions the court was asked to consider and the court’s answers. These are set out in His Honour’s judgement at ([83]), I’ve added the emphasis to make the answers stand out:

The Court gives the following advice to the questions asked. Are the Plaintiffs justified in the proper performance of their powers and duties as trustees of the RFS Fund, in doing any of the following acts with respect to the monies contained in the RFS Fund (including the money donated to the fundraising appeal commenced by Ms Barber in January 2020 since paid to the RFS Fund)? The following are the acts in question:

a. paying money to other charities or rural fire services, whether in NSW or the other Australian States and Territories, to assist in providing relief to persons and animals affected by bushfires.

Answer: No.

b. setting up or contributing to a fund to support rural firefighters injured while firefighting, or the families of rural firefighters killed while firefighting.

Answer: Yes.

c. providing;

(i) physical health training and resources;

(ii) mental health training and resources; or

(iii) trauma counselling services,

to volunteer firefighters as defined in s 8 of the Rural Fires Act, who require them in connection with performing the functions of the NSW Rural Fire Service, as defined by s 9 of the Rural Fires Act.

Answer: Yes.

d. setting up or contributing to a fund to meet the costs for volunteer rural firefighters (as defined in s 8 of the Rural Fires Act) to attend and complete courses that improve skills related to the volunteer-based fire and emergency service activities of the Brigades, as defined in clause 1.1 of the RFS Trust Deed.

Answer: Yes.

It is now up to the trustees to spend the money in accordance with this advice.

The NSW Supreme Court Daily List shows that Justice Slattery is scheduled to hand down his judgment in the matter of Andrew Macdonald at 2pm tomorrow, Monday 25 May.

Andrew Macdonald is the chairman of the NSW Rural Fire Service and Brigades Donations Fund and the applicant for guidance from the Supreme Court on what the trust can do with $51m donated in response to Celeste Barber’s call to her social media fans to donate during the 2019-2020 bushfire crisis.

It may be a day or two before the judgement appears online but I will report on the outcome as soon as I have had a chance to read the decision.