The final question for today asks about

… the Oaths and Affirmations Act 2018 (VIc) specifically section 30 and who is an authorised witness.

I know there has been some discussion amongst my fellow colleagues around the interpretation of

Permanent employee with 5 or more years of continuous service who is not otherwise specified, if employed at one of the following:

State

Territory

State authority

Territory authority

Local government authority

The questions are:

• Does a paramedic or staff member of Ambulance Victoria who has been employed on a permanent basis for longer than 5 years meet this criteria?
• Are paramedics or staff members of Ambulance Victoria able to certify documents or witness statutory declaration?

I rang the Department of Justice and they actually could not give me an answer.

I have answered a similar question for members of the Victoria SES – see Can members of Victoria’s emergency service administer oaths and declarations? (March 19, 2019).  In that post I noted that there is both Commonwealth and Victorian law on this subject.

To understand who can make a statutory declaration under Victorian law one needs to look at the Oaths and Affirmations Act 2018 (Vic) and the Oaths and Affirmations (Affidavits, Statutory Declarations and Certifications) Regulations 2018 (Vic). The Act, s 19, lists who can take an affidavit.  That list includes ‘a person employed under Part 3 of the Public Administration Act 2004 with a prescribed classification’ and ‘any prescribed person or person who is a member of a prescribed class of persons’.

To see who is ‘prescribed’ we look to the regulations.   Regulation 5 says that authorised affidavit takers include a ‘a public service employee with a classification of level 2 or equivalent or above, however described’.

A person authorised to take a statutory declaration includes an ‘authorised affidavit taker’ as well as ‘a person authorised by or under a Commonwealth Act to take a statutory declaration under that Commonwealth Act’ (s 30). The Statutory Declarations Act 1959 (Cth) and the Statutory Declarations Regulations 2018 (Cth) Schedule 2, Part 2 cl 31 says that, amongst others, a person authorised to take a statutory declaration includes

Permanent employee of:

(a) a State or Territory or a State or Territory authority…

with 5 or more years of continuous service…

A number of registered health professionals including Chiropractors, Dentists, Medical practitioners, Midwives, Nurses, Occupational therapists, Optometrists, Pharmacists, Physiotherapists and Psychologists can take statutory declarations (Statutory Declarations Regulations 2018 (Cth) Schedule 2, Part 1) but paramedics have not yet been added to that list.

So paramedics can witness statutory declarations or take affidavits in Victoria if they are ‘a permanent employee of a State or Territory or a State or Territory authority…with 5 or more years of continuous service’ (Statutory Declarations Regulations 2018 (Cth) Schedule 2, Part 2, cl 31), ‘a person employed under Part 3 of the Public Administration Act 2004 with a prescribed classification’ (Oaths and Affirmations Act 2018 (Vic) s 19) or ‘a public service employee with a classification of level 2 or equivalent or above’ (Oaths and Affirmations (Affidavits, Statutory Declarations and Certifications) Regulations 2018 (Vic) r 5).

Paramedics, although registered health professionals do not meet any of those definitions by virtue of their registration. It follows that paramedics, per se, are not authorised to take affidavits or statutory declarations, but what about those paramedics that are employed by Ambulance Victoria?

Ambulance Victoria is established by the Ambulance Services Act 1986 (Vic), in fact there are a number of ambulance services (Schedule 1) that collectively are known as ‘Ambulance Victoria’ (s 3).  Each ambulance service has a board (s 17).  An ambulance service created under the Act (s 23(2)):

(a) is a body corporate having perpetual succession;

(b) is capable of acquiring, holding and disposing of property;

(c) is capable of suing and being sued;

(d) is to have a common seal;

(e) is to be governed by a board of directors;

(f) is capable of doing and suffering all acts and things that bodies corporate may by law do or suffer.

Each ambulance service is therefore a separate legal entity – separate from each other and from the government of Victoria. The ambulance services are however ‘public entities’ for the purposes of the Public Administration Act 2004 (Vic). The public service is made up of people employed under Part 3 in Public Service Bodies.  Ambulance services may be public entities but they are not public service bodies. Employees may be transferred between public service bodies and public service entities (s 28) but that does not make them the same thing.  Part 5 of the Act deals with public entities again confirming that public entities and public service bodies are not the same thing and by inference, employees of public entities are not employees of the public service.

I would infer therefore, that an employee of Ambulance Victoria is an employee of a public entity but is not ‘‘a person employed under Part 3 of the Public Administration Act 2004…’ or ‘a public service employee …’.

Are they a ‘permanent employee of a State or Territory or a State or Territory authority’ (Statutory Declarations Regulations 2018 (Cth) Schedule 2, Part 2, cl 31)?  I would suggest they are not an employee of the State as each ambulance service is its own separate legal entity.   What is a ‘state or territory authority’ is not defined in the Commonwealth Act or regulation.  A Commonwealth authority (r 5) includes ‘Commonwealth entity within the meaning of the Public Governance, Performance and Accountability Act 2013’.  As noted, the various ambulance services that make up Ambulance Victoria are ‘public entities’ so by analogy, they would be a ‘state authority’.

As noted in my earlier post, affidavits and statutory declarations are important and it is more than just witnessing a person’s signature. Because of their importance it is an offence to take affidavit if not authorised affidavit taker (Oaths and Affirmations Act 2018 (Vic) s 22) and it is an offence to take statutory declaration if not statutory declaration witness (s 31). Who would want to risk that on the basis that they will, if prosecuted, argue that Ambulance Victoria is a ‘public authority’?

It’s not surprising that the Department of Justice could not give an answer as they wouldn’t know the answer to questions about paramedic employment or the status of Ambulance Victoria.

Conclusion

In the absence of a definition of ‘state or territory authority’ in either the Statutory Declarations Act 1959 (Cth)  or the Statutory Declarations Regulations 2018 (Cth) the cautious answer has to be that an employee of Ambulance Victoria is not an authorised affidavit taker or statutory declaration witness and are not, therefore, authorised certifiers authorise to certify copies of documents (Oaths And Affirmations Act 2018 (Vic) s 39).

That advice should be tested with your local HR officials and/or the Victorian Public Sector Commission to confirm paramedics are not employed under Part 3 of the Public Administration Act 2004 (Vic).

Subject to that specialist advice on employment status, my view is that paramedics, simply by virtue of their registration, as well as paramedics who are staff members of Ambulance Victoria are not able to certify documents or witness statutory declarations in Victoria.

These two questions came as comments on my post RFS donations and writing new law (February 26, 2020) but I thought they warranted their own response rather than being lost and perhaps unseen in the comments.

The first comment was:

If NSW change the legislation, who then decides where & how the money is allocated? Can the NSW legislation enforce donations to be made outside of NSW?

The answer is that the Bill proposed by the Greens would empower the trustees to distribute money in ways not intended by the trust deed, but it would not compel them to do so. The answer to the question ‘who then decides where & how the money is allocated?’ is ‘the trustees’.    If the Parliament directed the trustees, the Parliament would in fact be commandeering private property and that creates its own problems.

It has to be understood that there is the Rural Fire Service created by the Rural Fires Act.  That service is a government operated service. The Rural Fire Service Donations and Brigades Fund is not the RFS, it is a separate entity. It receives money that people want to donate and it can only spend that money for the benefit of the RFS, but it is not the RFS.  It is its own legal entity. The parliament can authorise the trustees to spend their money, but it cannot direct them.  That then leads to the next and more detailed comment from the Draggacannalong Brigade, next brigade over from Kickatinalong (and the Kickatinalong brigade is the subject of much discussion on this blog).  Matt, the captain of the Draggacannalong Brigade says:

I have just begun looking into this “Trust” as the initial request for funding applications has been advertised. The criteria is very wishy washy and contradictory after a bit of a look into it and asking for information about the Trust many things raised my concerns.

1. I have been a RFS Member for ten years, of that Snr Dep Cpt for 2 then to date Cpt for 2 and have NEVER been made aware of this Trust or the ability to make application to access this funding?
2. On investigation the Trustees are made up of Two RFS Staff and Four Members of the RFSA All of whom are appointed at the sole discretion of the RFS Commissioner for perpetuity.

Things seem to look like a very closed shop environment particularly that the RFSA to me appears to be a retirement home for washed up RFS staff.

Given that we are talking about an extremely large sum of private citizens money the lack of transparency concerns me very much.

If anyone would be willing to go into the details of my concern with me I would greatly appreciate it as I am by no means a scholar just a humble smoke sucking hillbilly from Draggacannalong.

I am sure you have been ‘made aware … the ability to make application to access this funding’ because everyone’s in a new world.  The purpose of the trust was to provide a central fund with tax deductible status.  The 2017-2018 annual report says (p. 4)

The purpose of the Trust is to make available to brigades the ability to accept tax-deductible donations, both in person and online, with as little administrative burden as possible. It was established and is operated solely for the purpose of supporting the volunteer-based fire and emergency service activities of the brigades

As the RFS says (https://www.rfs.nsw.gov.au/volunteer/support-your-local-brigade) ‘Some brigades may accept donations or gifts which can be tax deductible for the donor’ but many cannot. The trust allows people to make a donation to their brigade, the donation is received by the trust and ‘earmarked’ for the nominated brigade. The donor gets a receipt that allows them to claim a tax deduction. The captain of the nominated brigade can ask the trustees to spend the donated money and provided the purpose meets the terms of the deed, the trustees could spend the money accordingly – ie to buy equipment, pay for training or help meet the administrative expenses.

I’m sure that given the annual income of the trust was $1m (give or take) and most of those are donations for particular brigades, the issue of calling for applications of what to do with the money has never arisen.

And it’s true that the trustees are two members of the RFS staff and four members of the RFS three of whom are, in their profiles, also identified as members of the RFSA (2017-2018 annual report p. 7).  That may indeed appear as a ‘a very closed shop environment … Given that we are talking about an extremely large sum of private citizens money’ but it has to be remembered that before January 2020 the were not ‘an extremely large sum of private citizens money’, rather there were reasonably small donations. The 2017-18 annual report says that in that year the trust received $546,035.00 donated to individual brigades and $222,009.00 for the central fund.  They noted (p. 6):

Two large donations were received during the reporting period:

› $25,000 received on 23 April 2018

› $20,000 received on 26 June 2018

An unsolicited donation of $52m plus other donations that have come in this summer are clearly beyond the trust and the trustee’s experiences or expectations.  They must be on a steep learning curve to work out what this requires them to do and no doubt some of that trust money will need to be spent on legal and accounting advice.  Asking trustees to deal with this sum of money and the unstated and misplaced expectations of the donors must indeed be a large burden.  That the trust is not well set up to manage such a large inflow of money – coupled with moral expectations – is hardly surprising.

The trust is now a multi-million-dollar exercise. That the set up that run a small donations fund is not adequate for managing both the donations and then the inevitable investment income and finding new ways to spend the money should not be a surprise.  Re-thinking how to run the trust is, I imagine, occupying the minds of the trustees and the RFS executive as well as trying to work out if they can honour Ms Barber’s ill-informed promise.

 

Today’s question revisits (NSW) paramedics treating those who cannot or will not consent to treatment. I’m asked:

Firstly where is our duty of care defined?  Is it legislation or is it something that we have adapted.  If so what is ambulance’s definition or guidelines?  We all say it, but legally what are our obligations in relation to this.

Secondly now this relates to competency and capacity.  I understand that we have a protocol A3 however it only states that the patient must receive; believe; retain and explain.  There is no formal questioning/tool.  My question here is if we identify through our questioning that the person is incapable of doing this where is our ‘power’ or ‘legislation’ to detain or remove this patient and take them to hospital.  Does it fall under ‘duty of care’ and if so I’m concerned that I have no guidelines as to what means ie force if necessary, I am able to use, that would not be deemed as assault.  My other problem with receive; believe; retain and explain is the intoxicated pt.  We have no definition of intoxicated or ‘test’ to define when one is.

The NSW Liquor Act 2007 (section 5) states that a person is intoxicated if

• The person’s speech, balance, co-ordination or behaviour is noticeably affected and
• It is reasonable in the circumstances to believe that the affected speech, balance, co-ordination behaviour is the result of the consumption or liquor.

So most of this comes about in this scenario:

Intoxicated person at a licensed premise, falls from standing height onto tiled floor, probably as a result of their intoxication and suffers a head injury.  They are very unsteady on their feet.  In my opinion they are intoxicated, evidenced by slurred speech, unsteady gait, you can smell it on their breath and their eyes are blood shot.  When you attend the premises the person is up, stumbling around and can answer your questions however you know that due to their level of intoxication that they probably don’t really understand the ramifications of what their injury could manifest into.  They are by themselves no one is available to pick them up and they reside at home alone.  They allow you to examine them, all their observations are within the flags. They have an obvious haematoma to their head as a result of the fall.  In the past I have utilised police under the Intoxicated Persons Act as a police officer may detain an intoxicated person found in a public place who is:

• behaving in a disorderly manner or in a manner likely to cause injury to the person or another person or damage to property.
• In need or physical protection because the person is intoxicated

This Act then goes onto to state that an intoxicated person detained by a police officer under this section is to be taken to, and released into the care of a responsible person willing immediately to undertake the care of the intoxicated person.

It gets a bit tricky however if the person is now no longer in a public place ie at home or friends party and the other people are intoxicated and there is no identified ‘responsible person’.  What power and/or legislation do we have to remove that person, due to them not meeting competency and capacity?  Can we ‘place’ them on the stretcher, would this be viewed as assault?  What if they become violent, can we sedate them?  What if we sedate them and they suffer an arrest?   I know that some people have been putting Mechanical Restraint Devices (MRD) on people to restrain them in order to protect the patient from harming themselves and to protect others however we don’t have legislation for this unless we are acting under the mental health act ie completing a section 20 which if the patient was only intoxicated, this act is not appropriate. I know this sounds extreme and in most instances’ communication/police presence etc will get you over the line however we all know there will be that case! I don’t want to be the one where it ‘goes bad’ and I don’t really understand my rights/obligations other than, I had a duty of care.

More to this what now if the person is drug effected.  Police could possibly detain the person under common law power for Breech of the Peace or LEPRA but again these powers mainly focus on public place.  We have the Medical Disturbance M28 protocol however again my problem with this I think might be that there is no legislation or is there and I just don’t know it.   If they don’t meet competency and capacity and they are in their home, what power/legislation do I have to remove them, sedate or restrain them if they are not compliant or become defiant and aggressive.  With mental health for instance if we have the power to take someone’s liberty away, search and restrain them if necessary as it is legislated, why don’t we have it for behavioural and/or intoxicated people that don’t meet competency and capacity especially if they are not in a public place.

Sorry I know it’s a lot but now that we are registered I’m wondering if our protocols are enough to rely on legally.  I don’t want to ever test it either hence all the questions and confusion.

Discussion

There is a lot there; we’ll try to go through it step by step.

Firstly where is our duty of care defined?  Is it legislation or is it something that we have adapted.  If so what is ambulance’s definition or guidelines?  We all say it, but legally what are our obligations in relation to this.

Fundamentally the concept of duty of care is a common law concept with some modification or codification in the Civil Liability Act 2002 (NSW).  Fundamentally a health care professional has a duty to exercise their profession with reasonable care.  What that means will depend on all the circumstances.  In Rogers v Whitaker (1992) 175 CLR 479 Mason CJ, Brennan, Dawson, Toohey and Mchugh JJ said (at [5]-[6]):

The law imposes on a medical practitioner a duty to exercise reasonable care and skill in the provision of professional advice and treatment. That duty is a “single comprehensive duty covering all the ways in which a doctor is called upon to exercise his skill and judgment”; it extends to the examination, diagnosis and treatment of the patient and the provision of information in an appropriate case. It is of course necessary to give content to the duty in the given case.

The standard of reasonable care and skill required is that of the ordinary skilled person exercising and professing to have that special skill…

Insert ‘paramedic practitioner’ instead of ‘medical practitioner’, and ‘paramedic’ instead of ‘doctor’ and it defines the paramedic’s duty of care.

As to competence and capacity, at [14] their Honours said ‘except in cases of emergency or necessity, all medical treatment is preceded by the patient’s choice to undergo it.’  A patient can refuse treatment even if that will lead to significant, permanent harm or death. A person is competent to consent, or refuse consent, to medical treatment if he or she is able to understand the nature of the suggested treatment, weigh up the consequences of and communicate his or her decision (In Re C (Adult: Refusal of Treatment) [1994] 1 WLR 290; Gillick v West Norfolk and Wisbech Area Health Authority [1986] 1 AC 112, 169).

If a person is not competent they cannot give, nor refuse, consent to treatment. The ‘‘power’ or ‘legislation’ to detain or remove this patient and take them to hospital’ is found in the common law of necessity (see The doctrine of necessity – Explained (January 31, 2017)).  In In Re F [1990] 2 AC 1 Lord Goff said:

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

As Lord Goff said ‘The principle is one of necessity, not of emergency’.  He gave these examples:

Take the example of a railway accident, in which injured passengers are trapped in the wreckage. It is this principle which may render lawful the actions of other citizens – railway staff, passengers or outsiders – who rush to give aid and comfort to the victims: the surgeon who amputates the limb of an unconscious passenger to free him from the wreckage; the ambulance man who conveys him to hospital; the doctors and nurses who treat him and care for him while he is still unconscious. Take the example of an elderly person who suffers a stroke which renders him incapable of speech or movement. It is by virtue of this principle that the doctor who treats him, the nurse who cares for him, even the relative or friend or neighbour who comes in to look after him, will commit no wrong when he or she touches his body.

The two examples I have given illustrate, in the one case, an emergency, and in the other, a permanent or semi-permanent state of affairs. Another example of the latter kind is that of a mentally disordered person who is disabled from giving consent. I can see no good reason why the principle of necessity should not be applicable in his case as it is in the case of the victim of a stroke. Furthermore, in the case of a mentally disordered person, as in the case of a stroke victim, the permanent state of affairs calls for a wider range of care than may be requisite in an emergency which arises from accidental injury.

If the patient is not competent a paramedic (or a doctor, or a first aider) can provide treatment that is reasonable in the circumstances and in the patient’s best interest. That can include taking the person into care and transporting them to hospital.

Intoxication does not equate to incompetence (see Alcohol and refusing treatment (April 3, 2014). People may make decisions when intoxicated that they would not make when sober but that does not mean their decision was not binding on them and others (see Neal v Ambulance Service of New South Wales [2006] NSWCA 102 (discussed at Ambulance Service v Neal ( January 29, 2009)).

It should be noted that the Intoxicated Persons Act 1979 (NSW) has been repealed and its provisions moved to the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) ss 205-210 (the ‘LEPRA’ Act).  Under LPRA an ‘intoxicated person’ is ‘a person who appears to be seriously affected by alcohol or another drug or a combination of drugs’.  Section 206 says:

(1) A police officer may detain an intoxicated person found in a public place who is–

(a) behaving in a disorderly manner or in a manner likely to cause injury to the person or another person or damage to property, or

(b) in need of physical protection because the person is intoxicated.

My correspondent suggests that drug intoxication is different. They say ‘More to this what now if the person is drug effected. Police could possibly detain the person under common law power for Breech of the Peace or LEPRA but again these powers mainly focus on public place.’  Whether they are intoxicated by drugs or alcohol makes no difference.  Being drug affected is not a ‘breach of the peace’ it’s their behaviour that’s relevant. Some drug affected people may be breaching the peace, some may be unconscious. As LEPRA says, relevant intoxication is the product of alcohol or drugs or a combination of those things.

In any event the provisions in LEPRA, as noted, only apply in a public place, they do not apply to a person who is intoxicated at home.  So ‘What power and/or legislation do we have to remove that person, due to them not meeting competency and capacity?’ The answer is, again, the common law of necessity.  What power do you have to remove an unconscious person? Or a child who is ‘home alone’? The answer to all those questions is the common law of necessity.

It’s true that the Mental Health Act is not appropriate. Intoxication is not a mental illness and the aim is to take the person to an emergency department not a mental health facility – see Mental Health Act 2007 (NSW) s 20 – a summary of my current thinking (October 7, 2019; Trauma or mental illness – WA (June 19, 2019)).

Conclusion

The critical point of this question is this:

With mental health for instance if we have the power to take someone’s liberty away, search and restrain them if necessary as it is legislated, why don’t we have it for behavioural and/or intoxicated people that don’t meet competency and capacity especially if they are not in a public place.

The answer is that a person who is mentally ill may still be competent. The point of the Mental Health Act 2007 (NSW) where it relates to involuntary treatment is to allow treatment to be given to a person who is competent but who is refusing treatment.  It is indeed a deprivation of liberty.

Where a person is intoxicated there is no provision for treatment against the patient’s will.  If they remain competent they can refuse treatment even if that is not in their best interests (see Ambulance transport against patient’s will (August 16, 2017)).  If they are not competent then the justification for treatment is the same justification as allows paramedics to treat any person who cannot consent whether it’s due to trauma or intoxication.  If a paramedic feels confident they can treat a person who is unconscoious or incompetent because of a head injury sustained in a motor-cycle accident then they should feel confident that they have the same authority to treat a person who is not competent due to intoxication. Where a person is not competent a paramedic can provide care that ‘a reasonable [paramedic] would in all the circumstance take, acting in the best interests of the assisted person’.

 

 

Today’s question is about:

…  searching patients (and utilisation of a metal detection wand) in Emergency Departments … and whose responsibility is it.

Largely speaking across … [South Australia] (at larger sites), if there is metal detection required as part of a search, then contracted site security will be called to undertake this as part of their Authorised Officer powers under Section 43 of the Health Care Act 2008 (SA).

Clinical staff at one site have undertaken the use of metal detection for searches and my concern is that clinicians don’t have authority under the Health Care Act to search (not an authorised officer), but do, in more limited circumstances under Section 56 of the Mental Health Act 2009 have the power to search.

Views expressed by clinicians whilst they might support the shift in responsibility to security to perform this… that everyone needs to understand that the liability for any undiscovered weapon would wholly shift to security also.

My view is that this is a naive and uninformed statement/rationale.

My views are that;

• Clinical staff in ED have narrow Authorised Officer powers and only under the Mental Health legislation to search patients.
• Clinical staff are not Authorised Officers under the Health Care Act.
• Contracted Site Security staff are authorised officers under the Health Care Act and have broader powers to search.
• Searching of persons for safety reasons, largely and more closely aligns to a security officer role than a clinician.
• Metal detection wands are largely a tool of trade for security personnel than a clinician.
• Any searching should be a collaborative approach – Clinician identifies a need to search (safety reasons) and seeks assistance of Security to undertake a search and lawfully seize any items of concern.

To state that liability shifts to security from clinical staff if security do the searches is a baseless, redundant statement.

• Metal detection with a wand is but a part of the search process (observation, pat down/frisk, inspection, questioning etc).
• If a ‘trained’ person uses a contemporary calibrated tool of the trade in an appropriate manner with good intent, then it is irrelevant whether they don’t locate a ‘concealed’ weapon / contraband and harm is brought to those around by the person carrying the weapon.

There is no ‘shift’ in liability from one part of the workforce to another.

I generally agree with my correspondent.

The Health Care Act 2008 (SA) s 43 says:

(1) This section applies to a person—

(a) who is present at a site at which an incorporated hospital provides any health services; and

(b) who— …

(ii) is considered by an authorised officer on reasonable grounds to be a threat to another person at the site; or

(iii) is suspected by an authorised officer on reasonable grounds of being unlawfully in possession of an article or substance; or

(iv) without limiting a preceding subparagraph, is suspected by an authorised officer on reasonable grounds to have committed, or to be likely to commit, an offence against any Act or law.

(2) An authorised officer may exercise 1 or more of the following powers in relation to a person to whom this section applies:…

(b) the authorised officer may require the person to submit to a search of his or her clothes, or of anything in his or her possession;

(c) the authorised officer may seize anything in the person’s possession that the authorised officer believes on reasonable grounds—

(i) could be used to harm a person on the site; or

(ii) constitutes an article or substance the possession of which is unlawful in the circumstances; …

(8) In this section—

“authorised officer” means an authorised officer appointed under a by-law made by an incorporated hospital under this Division.

Under the Mental Health Act 2009 (SA) s 56(3)(f), an:

… authorised officer may search the person’s clothing or possessions and take possession of anything in the person’s possession that the person may use to cause harm to himself or herself or others or property.

The definition of authorised officer under that Act is much wider. Under the Mental Health Act an authorised officer is (s 3)

(a) a mental health clinician; or

(b) an ambulance officer; or

(c) a person employed as a medical officer or flight nurse by the Royal Flying Doctor Service of Australia (Central Operations) Incorporated or the Royal Flying Doctor Service of Australia (South Eastern Section); or

(d) a person, or a person of a class, approved by the Chief Psychiatrist, by notice in the Gazette, for the purposes of this definition; or

(e) any other person, or person of a class, prescribed by the regulations for the purposes of this definition;

It should come as no surprise that a condition that must be present before the Mental Health Act is relevant is that there must be a diagnosis of mental illness (s 56(1)(a) and (b)) or (s 56(1)(c)):

it appears to an authorised officer that—

(i) the person has a mental illness; and

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

No doubt there may be a desire to search people who are not mentally ill in which case the Mental Health Act is irrelevant.

Discussion

First, it is not self-evident that contracted site security are, or clinicians are not, authorised officers under the Health Care Act 2008 (SA).  That Act does not say who are ‘authorised officers’, rather it leaves it up to ‘an incorporated hospital’ to determine, via its by-laws, who are authorised.  They may have forgotten to authorise on-site security; they may have chosen to include clinicians in the list.

Second, all of this begs the question of whether authority is required to conduct a metal detector search and, if it is, whether the Health Care Act 2008 (SA) s 43 permits a metal detector search.  Section 43 permits ‘a search of his or her clothes, or of anything in his or her possession’.  The reason such permission is required is because touching a person without lawful justification or excuse is a battery. Touching someone’s clothing (eg a jacket they are not wearing) would be a trespass to goods.  Because the sort of search that may be anticipated by s 43 involves actual contact with a person or their property lawful authority is required.  Waving a wand over someone does not however touch them so it is not a battery or trespass. It may be that s 43 does not include a metal detector search as no authority is required.

But, countering that position is the Summary Offences Act 1953 (SA) s 66R.  That section says:

(1) A police officer may, for the purpose of detecting the commission of an offence under section 66Q or Part 3A, carry out a search in relation to—

(a) any person present within a declared public precinct; and

(b) any property in the possession of such a person.

(2) The following provisions apply to a search carried out in accordance with this section:

(a) the search must, in the first instance, be a metal detector search;…

(3) In this section—

“metal detector search” means a search conducted—

• using only a metal detector of a kind approved by the Commissioner; and
• in accordance with any directions issued by the Commissioner.

Clearly the Parliament did not think police could perform a metal detector search on the basis that there was no trespass and have set out a system to authorise those searches. Given the terms of the Summary Offences Act one cannot, with confidence, infer that either the Health Care Act or the Mental Health Act authorise a metal detector search without consent. But an authorised officer could seek permission to conduct a metal detector search with the ‘backup’ that if the person does not consent then the authorised officer can ‘require the person to submit to a search of his or her clothes, or of anything in his or her possession’.

‘To state that liability shifts to security from clinical staff if security do the searches is a baseless, redundant statement’ is correct.  The hospital is the person conducting the business or undertaking and the occupier of the premises and the employee of the staff.  It is the hospital that has the duty to ensure, so far as is reasonably practicable, that premises are safe. Having said that, it is hard to attribute common law responsibility on defendant A for criminal conduct by B (Modbury Triangle Shopping Centre Pty Ltd v Anzil [2000] HCA 61).

If a person manages to get a weapon into a hospital and do damage that person is primarily responsible for that conduct. As an employer the hospital will be liable to meet workers’ compensation obligations for any injured employee.  Anyone who wanted to sue in negligence they would have to prove that the hospital failed to take reasonable steps to secure the hospital noting that hospitals, in particular emergency departments, have to be open to the public and that hospitals and health care staff have to have a therapeutic relationship with their patients.  Having a doctor or nurse search a patient particularly one in extremis may not help that relationship.  What is ‘reasonable’ has to consider all those issues.  Where security has been contracted out, then there could be issues where the alleged negligence is with the security guard for failing to exercise his or her duties as required by the hospital.

Even if it was true ‘that everyone needs to understand that the liability for any undiscovered weapon would wholly shift to security also’ why clinicians would not welcome that.  Why would a clinician want to take on the occupiers responsibility to undertake a security search?

Conclusions

Let me return to my correspondent’s list:

• Clinical staff in ED have narrow Authorised Officer powers and only under the Mental Health legislation to search patients. That may or may not be true. It depends on the local hospital by-laws.
• Clinical staff are not Authorised Officers under the Health Care Act. That may or may not be true. It depends on the local hospital by-laws.
• Contracted Site Security staff are authorised officers under the Health Care Act and have broader powers to search. That may or may not be true. It depends on the local hospital by-laws.
• Searching of persons for safety reasons, largely and more closely aligns to a security officer role than a clinician. I agree with that.
• Metal detection wands are largely a tool of trade for security personnel than a clinician. I agree with that.
• Any searching should be a collaborative approach – Clinician identifies a need to search (safety reasons) and seeks assistance of Security to undertake a search and lawfully seize any items of concern. I agree with that.

To state that liability shifts to security from clinical staff if security do the searches is a baseless, redundant statement. –          I agree with that.

• Metal detection with a wand is but a part of the search process (observation, pat down/frisk, inspection, questioning etc). I don’t think that is true. The Summary Offences Act 1953 (SA) s 66R suggests that, at least for police, a metal detection search is something ‘special’. It is not at all clear that Health Care Act 2008 (SA) authorises a metal detection search though an authorised person could ask a person to submit to a search and if they don’t then require them to submit to a personal search. 
• If a ‘trained’ person uses a contemporary calibrated tool of the trade in an appropriate manner with good intent, then it is irrelevant whether they don’t locate a ‘concealed’ weapon / contraband and harm is brought to those around by the person carrying the weapon. Where the conduct of the search is ‘reasonable’ then it’s correct that a failure to detect a weapon or contraband would not be negligent.

There is no ‘shift’ in liability from one part of the workforce to another. That’s true, the ultimate responsibility for the safety will lie with the hospital. The hospital via its by-laws could make clinicians, or security, or both authorised officers. It may, on a risk assessment, determine that having on site security or security with a metal detector is not required.  The ultimate question, should a person in the hospital be injured by a person with a weapon, will be did the hospital take reasonable steps to prevent that outcome.  If clinicians, or security, are tasked with the search there may be questions of whether that tasking was reasonable and what training they had. Who is liable for what depends on all the circumstances.

If I was a clinician, I would not want to be doing that sort of searching, it seems to be an antithesis to the clinical relationship.  Hospitals probably don’t ask security to do triage, why ask clinicians to do security?

 

 

 

 

In Charter Hall Real Estate Management Services (NSW) Pty Limited v State of New South Wales [2020] NSWCA 26 (25 February 2020) the NSW Court of Appeal upheld a decision of the NSW Supreme Court finding that the defendant, as occupier of a building that had negligently exposed a firefighter to injury, was liable to indemnify the Brigades’ workers compensation insurer.

The incident occurred on 22 January 2007 (ie 13 years before this judgment) when NSW Fire Brigades (as they then were) were called to an alarm of fire at a shopping centre in Orange in the NSW Central West. His Honour, White JA said (at [6)]:

Mr McMullen was injured when he attended the shopping centre in response to the fire alarm. The fire panel indicated that the alarm was triggered from an air-conditioning unit on the roof of the shopping centre. Access to the roof was obtained through a roof access door. A security guard accompanied Mr McMullen and the other fire-fighter to the roof access door. The access door was at the top of a ladder. The ladder was variously estimated to be about eight feet, nine to ten feet, or 12 feet high. It had a metal locking bar in front of it described in more detail below. The bar was raised and the door opened to permit Mr McMullen and his co-worker to reach the roof to check the air-conditioning unit. Mr McMullen was satisfied that there was no fire in the air-conditioning unit and that it was a false alarm. When leaving the roof the other fire-fighter descended the ladder first. Mr McMullen followed. The primary judge described the circumstances of the injury as follows (at [22]):

“Before descending, Mr McMullen faced the ladder, put his foot on the top rung and held onto both sides of the ladder. On his way down Mr McMullen felt himself knock the locking bar with his elbow and then something hit his neck. He stopped where he was and felt pain in his neck. He realised that he had been struck by the locking bar. He took hold of the locking bar, pushed it back up into place and continued down the ladder. Mr McMullen described the pain as ‘pretty severe’ and gave evidence that he had never felt pain in his neck like that before.”

The judge in the District court found that the defendant in that court, the appellant in the Court of Appeal, Charter Hall Real Estate Management Services had breached the duty of care it owed to Mr McMullen.  At [8] White JA said:

… the primary judge found that the appellant, through one of its employees, a Ms Chapman, had actual knowledge of the risk of injury posed by the absence of any restraint to prevent the locking bar from falling onto a person using the ladder to access the door to the roof of the shopping centre. That was because a Mr Willox, who was employed by a third party to act as a security guard for the shopping centre and had performed that task for some 15 years, had reported to Ms Chapman on two occasions that the locking bar had fallen on him. The primary judge found that the risk involved a risk of death or serious injury and it was possible that the locking bar could fall onto a person using the ladder resulting in a fall of 12 feet to the floor at the bottom of the ladder. It was reasonably foreseeable that the locking bar could be disturbed by someone dislodging it from its resting place with a body part or an item of clothing. Simple and inexpensive precautions were available to avoid the risk of harm. The primary judge said (at [147]):

“A mechanism to secure the locking bar when it was leaned against the door jamb could have been obtained from a hardware store and installed by a tradesman in less than 30 minutes. A sign warning of the risk and advising that the locking bar should be held whilst descending the ladder could have been affixed in the area of the ladder at minimal cost.”

In simple terms the appellant argued that the trial judge was wrong in finding that there had been a breach of duty by the appellant and also for finding that there had been no negligence by either NSW Fire Brigades and fire fighter McMullen (see [11]).

White JA upheld the finding that the appellant had actual knowledge about the risks associated with the access door. There were at least two prior reports of the locking bar becoming dislodged and but for sheer good luck, not striking a person descending the ladder ([31]-[48]). Even without those actual events, the risk was clear. The door needed to be latched open otherwise there was a risk it would blow closed and dislodge the locking bar. The last person going down the ladder had to unlatch the door so it could be closed but then was at risk of the door blowing shut and the locking bar falling. If the locking bar did hti a person on the ladder there was a risk of them falling the 12 feet to the ground. The appellant ‘… ought to have known that the condition of the ladder, access door and locking bar was dangerous’ ([49]).

With respect to alleged contributory negligence by firefighter McMullen, White JA said (at [84]-[86]):

The appellant submitted that Mr McMullen was fully aware of the locking bar. He said he had undertaken a risk assessment on both the way up and the way down and that the locking bar fell only because he knocked it with his elbow. The appellant submitted that contributory negligence should have been assessed at 20 per cent.

It was not put to Mr McMullen in cross-examination that he was careless in knocking the bar when descending the ladder.

Mr McMullen was fully kitted out with breathing apparatus, helmet and sledge axe or Halligan tool … His accidentally knocking the locking bar (presumably at its lower point where it obtruded beyond the vertical towards the ladder) was accidental inadvertence not amounting to contributory negligence…

Macfarlan JA and Simpson AJA agreed with White JA. The appeal was dismissed with costs.

Discussion

Although not discussed in these terms, the case confirms – again – that there is no equivalent of the ‘firefighters’ or ‘firemens’ rule in Australia (see Court of Appeal upholds verdict in favour of injured Queensland police officer/rescuer (December 18, 2019)’ see also see http://www.firelawblog.com/category/firemens-rule/).  To quote from the decision the subject of that earlier post ([Name Redacted] v AAI Limited [2019] QSC 7, at [30]):

The authorities to which reference has been made establish that, provided the usual principles that govern the right of rescuers to recover damages for injuries are satisfied, the fact that a rescuer happens to be a police officer [or fire fighter] does not constitute a legal bar to liability whether the injury is physical (Haynes v Harwood), psychiatric (Jausnik) or both (Hirst).

In this case, as the court noted (at [68]):

Section 10 of the Occupation Health and Safety Act 2000 (NSW) as in force on 22 January 2007 required that a person who had control of premises used by people as a place of work must ensure that the premises were safe and without risk to health. Officers of a fire brigade were called to the premises as a place of work.

The fact that firefighters were there to do dangerous work did not relieve the defendant of their obligations.  The premises were unsafe.

It is true that this was not Mr McMullen suing the appellant. The plaintiff in the District Court was the State of New South Wales seeking to recover the money that it had paid to meet its workers’ compensation obligations. But the state was suing the defendant in negligence and it could only win that case if it could show that the defendant had breached its duty of care to the injured worker – not that the defendant/appellant owed some separate duty to the employer not to expose them to workers’ compensation liability.  In effect the State of New South Wales had to run the case the injured worker could have run should he have elected to do so (see [7]).

Conclusion

The case confirms that the occupier of premises where a fire or emergency service is called is under a duty to take reasonable care to ensure the premises are safe. In this case it was not a fire or the risks of firefighting that were in issue, it was the design of an access door that the firefighters and others had to use to access the roof. The design created its own dangers which the management had been warned about and which was obvious in any event. Their failure to ensure the access to and egress from the roof was safe was negligent.

As the negligence caused injury the negligent tortfeasor was liable to make good the losses and it is irrelevant that the person injured was a firefighter or rescuer.

 

 

I’ve written on the massive fundraising that was lead by Celeste Barber and led to a $51m donation to the NSW Rural Fire Service Brigades and Donations Fund – see

• Disaster fundraising for government or charity? (January 5, 2020);
• Diverting Facebook donations (January 6, 2020);
• Further complicating the issue of diverting Facebook donations, and perhaps an ‘out’
  (January 7, 2020);
• Donations to RFS trust on hold (January 13, 2020);
• Trust operations 101 (January 16, 2020); and
• RFS and donated funds (January 24, 2020).

In those various posts I suggested that the three ways that I (and colleagues) could see to distribute the money across the nation and across causes was (Trust operations 101 (January 16, 2020)) either

1. A special Act of Parliament
2. An order from the Supreme Court (but on what basis I don’t know as the trust has not failed and the deed is not ambiguous)
3. Wind up the trust and allow the trustees under cl 11 to redistribute the funds (see Donations to RFS trust on hold (January 13, 2020)).

There have been reports that the RFS are intending to approach the Supreme Court (see Lachlan Moffet Gray, ‘RFS to join Celeste Barber in court to release bushfire donations‘ The Australian (online) (February 21, 2020); Sam Clench, ‘Celeste Barber reassures donors that ‘really serious’ effort is being made to release bushfire funds‘ News.com.au (February 21, 2020)).

Today Greens MP David Shoebridge announced that he was introducing a Bill to the NSW Parliament to give the trustees a one-off dispensation to allow them to redistribute some of the $52m.  You can read details of his proposal in his media release:

David Shoebridge, Media Release: Fixing the $52 million RFS donations mess (February 25, 2020).

Interestingly his press release says ‘Celeste Barber, who made the call for these record donations has indicated she will bring an application to the Supreme Court to address this problem.’ I cannot see that Ms Barber would have any standing to bring an action in the Supreme Court.  She is one of several million donors.  The applicant will have to be the RFS trustees.  As reported in the News.com.au article (above, emphasis added) ‘The next step is for the RFS to seek clarification from the NSW Supreme Court on how the money can be used.’

Will any of this work? Who knows.

The Supreme Court would normally get involved if a trust fails, eg money is raised to pay for someone’s medical care but they die before it can be spent, or money is raised for a specific project and more money than is required is raised.  Here there is no failure, the trust and its beneficiaries (the RFS and its brigades) still exist and even if Celeste Barber had an original goal, the RFS trust was not asking for a sum for a special project.  They can spend the full amount consistently with their trust deed.  I’m not sure on what basis the supreme court could or would make orders allowing a variation in the way the trust money is to be spent.

With respect to the Act of Parliament Mr Shoebridge will need to get the numbers to pass his Bill.  I cannot say if that will happen; and some may say this is a problem that doesn’t need fixing. The money was donated to the RFS trust so let it go where the donors elected to send it when they pressed ‘donate’.

Conclusion

There is still a long way to go to see if the RFS will be allowed to meet a promise that it did not make and honour a promise Ms Barber’s was in no position to make, to ensure “… that Victoria gets some, that South Australia gets some, also families of people who have died in these fires, the wildlife…’

 

Today’s question relates to using sirens as a form of community warning in South Australia. I’m told:

Fire Brigades have been using station sirens for a long time. Once, it was primarily to summon fire fighters to the station.  When paging became widespread in the 1990s, sirens took on more of a community warning function…

SACFS HQ … takes the view that the day of the station siren is over and has requested/directed their use be ceased.  We understand there are several drivers for this, primarily cost.

The first is (purported) legal cost.  Risk-averse lawyer-y types threatening all sorts of future court-room grief if CFS doesn’t make them 100% guaranteed to sound when needed, even if the power is out or they have been taken down for repair…

The second is operating cost. They need a lot of power to run … and need maintaining and replacing.  CFS argues that they are poor bang-for-buck in terms of coverage vs cost.  Except…

…  A small but significant percentage of Hills residents have little or no mobile or GRN reception in their homes, and as their land-lines are replaced by NBN, satellite voice & data coverage only.  But the sirens can be heard clearly, even in the deepest, darkest black-spots.  Because of this, many brigades and their communities in the Adelaide Hills want to retain or reinstate their station sirens…

So, the questions….

1. Is there any validity to the idea that CFS would be in some way liable for losses if the station siren doesn’t sound that one time it was needed?
2. Could a CFS Brigade “defy” HQ and retain/reinstate their siren anyway. I understand that the Brigade couldn’t force “The CFS” to pay for it, but would “The CFS” be able to stop them doing so if the Brigade had the funds available?  Property ownership of fire stations mostly lies with SAFECOM, the parent body over CFS, SES & MFS.

The issue of sirens as a tool for community warning was the subject of discussion in the 2009 Victorian Bushfires Royal Commission.  At the time Victoria’s Country Fire Authority did not support the use of sirens. The Commissioners, in their Interim Report (Chapter 4, Warnings) said:

4.206 Sirens are intended as a signal to those in the vicinity to seek further information or take protective action according to procedures established in the minds of those hearing the siren. When understood correctly (that is, as a trigger used against the background of an existing procedure for correct response) it is clear that a siren may have a useful role as part of an overall system of bushfire warnings.

4.207 CFA policy is that sirens are not to be used for warning the public. Mr Rhodes expressed the view that sirens have many limitations. He confirmed that the CFA does not advocate the use of sirens.

4.208 The Commission has heard evidence on the use of sirens in some communities in Victoria and South Australia. Whether the use of a siren is appropriate as a fire danger warning depends on local circumstances, including a developed community appreciation of its function. There is scope to investigate and develop the use of sirens in communities that would benefit from such an alert system. In addition, sirens may be useful outdoors, particularly for travellers and campers…

4.232 There is potential for more communities to attempt a comparable approach as that in use in Ferny Creek, Walhalla or Woods Point. Not all communities will want to institute a local alert siren. Some communities will determine to use their siren in different ways for different purposes. The option to pursue local solutions, including sirens, should be part of Municipal Emergency Response Plans and should also be given more prominence and assistance in the education campaigns and advice concerning bushfire preparedness.

As Mr Esplin notes in relation to the Ferny Creek fire alert siren:

The community should not be just a passive recipient of services; it should be an active participant in developing safety strategies that it knows how to apply and is willing to apply, and applies, and it is involved in a partnership with the emergency services and with local government … and it is my philosophy that where such a tripartite partnership can be recreated, the safety outcomes are maximised, but risk is mitigated to the greatest extent.

4.233 Sirens are one of a number of options that might be deployed in some areas to ensure the community is alerted to the need to be ready to receive warnings, search out further information, take defensive actions or prepare to implement a protocol for a local refuge.

Recommendation 4.7

The Office of the Emergency Services Commissioner and the CFA develop guidelines for the use of sirens in communities that decide to use a siren as part of their response to bushfires.

Now, to the questions.

1.  Is there any validity to the idea that CFS would be in some way liable for losses if the station siren doesn’t sound that one time it was needed?

Put in such simple terms the answer is ‘yes, there is some validity to the idea that the CFS could (not would) be liable’.  But there are many hurdles.

Sirens are contemplated as an emergency service warning tool. The Fire and Emergency Services Act 2005 (SA) s 129 says:

An emergency services organisation or a council may erect a siren in a suitable place for the purpose of giving warning of the outbreak or threat of a fire or the occurrence or threat of an emergency, and may test and use the siren.

The power to install a siren does not give rise to a duty or obligation to exercise that power (just because you can, does not mean you must).

Assuming that the installation of the siren gives rise to some ‘duty of care’ the essential issue in negligence law is that the obligation is to take ‘reasonable’ care, it is not a guarantee of safety.  To take reasonable care a defendant like the CFS would need to show that it had considered risks and had in place ‘reasonable’ maintenance procedures. Equally, as noted by the Royal Commission, there would need to be community understanding of what the siren meant and the CFS would have to take an active part in that community education (as they do now in, for example, explaining what fire warnings mean).  There’s no point having a siren if people don’t know what it means.

But in trying to make the CFS liable a potential plaintiff would have many difficulties.  Assuming that the installation of the siren gave rise to a duty of care, a common law duty is a duty to take reasonable care, not to guarantee safety – ‘an obligation to exercise reasonable care must be contrasted with an obligation to prevent harm occurring to others. The former, not the latter, is the requirement of the law.’ (Roads and Traffic Authority of NSW v Dederer [2007] HCA 42, [51]).

There is a risk that all warning options will fail to reach a person or will fail to work. The failure of mobile networks can guarantee that an ‘emergency alert’ will fail to reach those dependant on the mobile network but that does not mean anyone will be liable for that.  A siren might fail, it may not be heard, it may not be understood.  If there is a duty it is a duty to take reasonable steps to deal with those risks (regular maintenance, community education) not to guarantee that they don’t arise.  The installation of sirens may well be a reasonable response to a risk that other warnings won’t work in particular areas. If there is a risk of liability because the siren might fail, there may also be a risk of liability if other warnings fail and the use of the siren may be a reasonable response to that risk.

The next hurdle is causation. Even if there was negligence in failing to maintain or activate a siren, a potential plaintiff would have to show that the siren would have made a difference.  Where they suffer loss or damage due to fire it’s the fire that is the cause of the loss.  They would have to show that had the siren sounded they would have done something that they did not do and that would have avoided whatever losses they suffered. That will not be easy when warnings are communicated by other means, and where people can be expected to remain observant to local conditions. In catastrophic fire conditions, the warning may not have made any difference.

I would suggest the best approach is that recommended by the Royal Commission and that is the use of sirens should be a matter considered by the CFS, the community and local council that is required ‘to take measures to protect its area from natural and other hazards and to mitigate the effects of such hazards’ and ‘to provide infrastructure for its community … (including infrastructure that helps to protect any part of the local or broader community from any hazard or other event…)’ (Local Government Act 1999 (SA) s 7(d)).

2.   Could a CFS Brigade “defy” HQ and retain/reinstate their siren anyway.  I understand that the Brigade couldn’t force “The CFS” to pay for it, but would “The CFS” be able to stop them doing so if the Brigade had the funds available?  Property ownership of fire stations mostly lies with SAFECOM, the parent body over CFS, SES & MFS.

As noted, s 129 of the Fire and Emergency Services Act 2005 (SA) says ‘An emergency services organisation … may erect a siren …’.  An emergency services organisation is the SA Metropolitan Fire Service, the Country Fire Service (CFS) and the State Emergency Service (s 3).  The CFS is established by the Act and consists of the Chief Officer, the staff and the members of the brigades. But each brigade is not a separate legal entity nor is it, on its own, an ‘emergency services organisation’. In simple terms the Act allows the CFS to install a siren but that does not mean each brigade.  Each brigade is part of the larger organisation managed by the Chief Officer who has ‘control all resources of SACFS’ (s 60(4)(a)).

In short yes, the CFS could stop a brigade installing a siren even if the Brigade had funds available as ultimately the brigade does not own its funds. The brigade is not a separate legal entity, so the funds collected by the Brigade are funds owned by the CFS and are subject to the direction of the Chief Officer. IF that were not the case, if brigades could do what they wanted if they could afford it, there would not really be a country fire service.

Conclusion

The issue here are not really legal questions. The SACFS has the power to install a siren. The question is not or should not be about duty of care or liability but whether a siren could ‘ensure the community is alerted to the need to be ready to receive warnings, search out further information, take defensive actions or prepare to implement a protocol for a local refuge.’ That involves discussions beyond the CFS to include local government and the community and to ask them what they want and what will work for them.

If a siren is a good local response, there is no legal risk that should stop their installation. IF the community says that is the only warning that is going to work given ‘residents have little or no mobile or GRN reception in their homes, and as their land-lines are replaced by NBN, satellite voice & data coverage only’ in which case if there is a duty to warn, it may be negligent not to find an alternative such as a siren.

POSTSCRIPT

After writing this post a correspondent sent these details on the position in Victoria.

Following the 2009 Bushfires Royal Commission, Victoria went on to develop policy and procedures around the use of community sirens and undertook a pilot program exploring technologies to effect their use. In all, fewer than 40 communities ended up with community alerting sirens and these remain in use as part of the overall warnings and advice system in Victoria. Nearly all of them repurpose exisiting siren infrastructure attached to CFA stations, which were modified and linked into to the statewide warnings system. While it is possible for a community to seek to have a new siren installed, there appears to be no appetite to fund more sirens from government and in recent years minimal demand for additional sirens from the community. Here is a link to the Victorian policy: https://www.emv.vic.gov.au/responsibilities/community-alert-sirens Here is a link to CFA’s information about community alert sirens: https://www.cfa.vic.gov.au/warnings-restrictions/community-alert-sirens There are some inherent limitations in the use of sirens for community warning, not in the least of which is interpretation as to what siren sounds mean but also including range and audibility in adverse conditions. The use of smart phone apps and telephone alerting have overcome some of these, although all technological solutions are inherently subject to failure. In Victoria, the position has always been that sirens are just one of a number of community alerting mechanisms.  When used, they never signify evacuation and are simply a signal to “seek further information”. They are triggered at the discretion of an incident controller once warnings and advice messages reach  “watch and act” level and automatically at “emergency warning” level. One occasion on which they were used with good effect was the 2015 Wye River bushfires.

The AHPRA website reports that:

… Guidelines for mandatory notifications have been reviewed and publicly consulted on as part a scheduled review and to get ready for the changes to mandatory notification requirements coming into effect in early March 2020.

The revised guidelines explain the requirements to make mandatory notifications under the updated legislative requirements for treating registered health practitioners, non-treating registered health practitioners, employers of registered health practitioners and education providers to make mandatory notifications under the updated legislative requirements.

The requirement to make a mandatory notification about a practitioner is different for different notifier groups. For that reason, the guidelines about practitioners have been structured according to notifier type (that is treating practitioner, non-treating practitioner, employer) so that relevant information for that notifier group is easier to find.

As there are only limited circumstances when a mandatory notification can be made about a student, separate guidelines for notifications about students and practitioners have been developed.

You can read the revised guidelines on the AHPRA Guidelines here.

On 20 February 2020, the Supreme Court of The Australian Capital Territory handed down a decision in Carvalho v Town [2020] ACTSC 1, a claim for personal injuries compensation arising from a motor vehicle accident between a fire appliance driven by firefighter Town and a vehicle driven my Mr Carvalho.

Two interesting points to note. First, the matter was originally heard in the Magistrate’s Court. The Magistrate found that the driver of the fire appliance was negligent but that responsibility for the accident should be apportioned 40% to firefighter Town and 60% to Mr Carvalho. The end result was an award of damages in Mr Carvalho’s favour. The Magistrate assessed Mr Carvalho’s damages at $40,600. Discounting that amount to reflect Mr Carvalho’s contribution, the final award was $12,429.93 plus $2500 costs (all met by the ACT Insurance Authority, not Mr Town). The first thing to note therefore is that in terms of litigation this case did not involve a large sum of money.

Notwithstanding the value of the claim the matter was heard in the Magistrates court over three days in March 2018. An appeal was heard in the Supreme Court, before Mossop J on 9 December 2019. The decision of the court was handed down on 20 February 2020.  The accident happened on 27 February 2013. That means this decision was handed down one week short of 7 years after the accident. As we will see there was nothing particularly complex in this matter, so how it takes 7 years to resolve a relatively simply motor accident claim is, to be blunt, beyond me.

The facts

The facts were in dispute, but the finding of the Magistrate was that the fire appliance was travelling along Adelaide Avenue in Canberra.  Adelaide Avenue is a major road between the Canberra city and the satellite centre of Woden. It’s three lanes in each direction with the left most lane a T2 (Transit 2) lane so open only to vehicles with 2 or more persons, motorcycles and buses.

The evidence was that the fire appliance driven by Mr Town was travelling south in the T2 lane with lights and siren activated. They needed to do a u-turn to make their way to their emergency call. There was a u-turn bay across a wide nature strip. To make that u-turn Mr Town moved into the middle lane and slowed down, he began to turn across the T2 lane and collided with the vehicle driven by Mr Cavalho that was passing the slow moving appliance on its right.

The court held that the driver of the appliance, even though he was responding to an emergency call, that other drivers had obligations to give way and that he had the benefit of the exemption under the Australian Road Rules r 306, still owed a duty of care to keep a proper lookout for other road users.

(Interestingly the judgement says (at [20]) ‘The respondents had relied upon r 79 of the Road Transport (Road Rules) Regulation 2017 (ACT) that requires a driver to give way to an emergency vehicle displaying a flashing red or blue light’.  Or course the 2017 version of the Road Rules could not have been in force on 27 February 2013.  One assumes that the relevant law at that time was the Road Transport (Safety and Traffic Management) Regulations 2000 (ACT) that incorporated the Australian Road Rules into ACT law. Rules 79 and 306 were not significantly different at that time).

The Magistrate said (quoted at [21]):

There was a duty on the driver to take a high level of care to ensure that other road users were not placed in danger by the manoeuvre.  There is no evidence that the [appellant’s] vehicle was travelling at high speed, and yet the testimony of Officer Town was that he at no time saw the [appellant’s] vehicle before the collision.  That concession strongly supports a conclusion that, as the driver of the appliance, he breached a duty of care to the [appellant] to keep a proper lookout and I so find.

As noted, it was found that the plaintiff was 60% responsible. He was in a lane to the right of the appliance, He had ample opportunity to observe the appliance with its emergency lights on and then the right-hand indicator. Even if he did not know exactly what the appliance driver intended to do, he was indicating an intention to move to the right. The Magistrate found (at [25]):

… that a careful driver would have seen the indicator and would have slowed or stopped his or her vehicle to avoid a collision.  Even if the indicator had not been observed then the operation of the lights and perhaps the marked slowing of the vehicle with no obvious destination in sight would have caused a careful driver to slow or stop his or her vehicle.  He therefore found that the appellant’s failure to take reasonable care for his own safety contributed to his own injury to the extent of 60%.

All parties appealed. Mr Carvalho argued that the assessment of contributory negligence was too high, that the assessment of damages was too low, that there was fraud by the respondents, that the Magistrate was compromised by a conflict of interest, that his lawyer failed to follow his instructions, that he had new evidence, that their was collusion between witnesses for the respondent/defendant and that the Magistrate’s assessment of his and his mother’s credibility was unreasonable.  The defendant (Mr Town represented by the ACT Insurance Authority) also appealed arguing that the Magistrate erred in finding that there had been any negligence by Mr Town and/or the Magistrate should have found that Mr Carvalho’s actions amounted to 100% contributory negligence.

His Honour rejected all the grounds of appeal confirming that the Magistrate made no error in his assessment of the evidence or the law, confirming the finding of responsibility 40:60.

Legal lessons

This was not a complex case. The legal lesson for readers of this blog is to confirm, yet again, that even though the driver of an emergency vehicle has an exemption from the road rules, and even though other drivers are required to give way to emergency vehicles, each driver still owes a duty to avoid a collision.  The exemption from the road rules is not an exemption from all law or the duty to take care.

As His Honour said (at [102]), with respect to his case:

… there was no allegation nor finding of negligence arising from the fact that [the appliance] was making what would otherwise be a dangerous and inappropriate turn … it was appropriate for the first respondent to make that turn, but that in doing so a lookout should have been kept for vehicles in the lane to the right which, apart from viewing the indicator, could have no expectation that the vehicle would make that manoeuvre.

 

I have previously written about the role of paramedic and retained firefighter – see Registered paramedic or firefighter? (July 10, 2018) and NSW Paramedic and fire fighter – when does one role start and finish? (July 8, 2015).

I’m not sure if today’s question comes from the same person, or people who asked those questions but regardless of whether it’s the same person, they are both a retained firefighter and NSW paramedic. Today they say:

As a retained FF and registered paramedic on a truck if there is ever a need to treat or assess a patient at a job, I inevitably get tasked to do this.  Even if I am pump operator, since the introduction of ‘Registration’ I cannot really take the ‘cap’ of paramedic off and as such I am obliged to do this as the senior clinical person at a job. My questions are:

1. What documentation do I now use to state the level of care, assessment and/or recommendations that I have given either to someone who does not want any further treatment, or to give to another clinician (paramedic on duty) etc etc. F+RNSW seems to not see this a priority, I have bought it up on a local level and there were no answers, which is fine in theory if nobody ever needs to know what I did, but we all know that sometimes things turn to shyte, and in the worst case can go to Coroners Court for investigation. Like all Government Business units, the old adage of ‘if you didn’t document it, you didn’t do it’ rings true. We need a clinical incident form for medico-legal documentation on the truck to show what first aid or other clinical assessments or treatments are and were made. This is a significant risk to FF who are on the truck who either have their First Aid skills or other clinical skills and they carry the can if there is a police, clinical, F+RNSW procedural or coronial investigation
2. What is the FBEU doing about people like me in the Brigade in the way of remunerating us to act in the manner of senior clinician by default? If I am on the truck and through the National Registration process the role of senior clinician in the absence of anyone with a better medical knowledge than mine or other registered paramedics, then there should be a clinical allowance for people like me because quite frankly I am holding all of the organisation risk on my shoulders? What are your thoughts on this? Is this worth a general discussion amongst the FBEU Executive?

I will decline to answer question (2). It is outside the scope of this blog and any claimed expertise. Industrial matters are indeed a matter for the relevant union.

As for question (1) first some observations. First, surly the worst case is ‘someone dies who did not need to’, not that it goes before a coroner. If the matter got before a coroner and if the matter came down to a lack of documentation so there was an incomplete handover or the paramedic/fire fighter could not know recall what happened, what’s the coroner going to do? Recommend that FRNSW get a system in place to record patient care.

Second I have no idea what is meant by the assertion that the first aid person will ‘carry the can if there is a police, clinical, F+RNSW procedural or coronial investigation’. That they may be asked – what did you do? But I don’t know what ‘carry the can’ means in this context.

Now to turn to the question of what documentation. Of course, there should be patient care records – ‘a clinical incident form … to show what first aid or other clinical assessments or treatments are and were made’ – even if patient care is secondary to FRNSW’s primary purpose. Records are required to ensure continuity of care and to remind the treating firefighter what happened if that is a matter that needs to be recalled in the future; see First aid patient records – who and what are they for? (January 31, 2015) and record appropriately.

The WorkSafe Australia Model Code of Practice for First Aid in the Workplace says (p. 19):

A record of first aid treatment given should be kept by the first aider and reported to managers on a regular basis to assist reviewing first aid arrangements. First aid treatment records are subject to requirements under Health Records legislation. Further information is available from the Office of the Australian Information Commissioner.

But there is no prescribed form or standard – use a notebook (ideally a notebook with carbon paper if such stuff still exists, but that would do).

I would expect that there are forms to be completed if a firefighter is hurt on duty and they could be used in the station or on a truck. Or as a registered paramedic, design your own and take it to FRNSW with a suggestion that they adopt it, print it and put one on every fire truck.  If FRNSW won’t issue such a form, get your own. There are plenty of examples of patient care records and no doubt a shop like ‘Officeworks’ can supply a book with relevant records or see this from St John Ambulance Australia – https://shop.stjohn.org.au/workplace-patient-report-forms-10pack_1001836/.  Perhaps FRNSW should buy a pad of these for every appliance?

 

Today’s question from South Australia is said to be ‘adding to’ my ‘series of sackings of volunteers …’

One aspect which has surprised me in supporting this process, is that in SA there is no Legislative, Regulation, Government, or SA SES instrument to sign on a volunteer to the agency.  It just seems to happen.  There are Procedures, Policies, Codes of Conduct once a person is accepted into the agency, including being deemed an employee for the purpose of WHS and driving under emergency conditions.

Unless I am mistaken, unless there is a “formal instrument” which you sign on joining, am I right in my belief that you are “not covered” as a volunteer which requires you to be deemed an employee for the purposes of WHS and legislative operational requirements. The other implication in this case is that if the volunteer is not considered a nonpaid employee through an organisational instrument of engagement, then there is no legal mechanism to protect the volunteer in the case of an injury and workers compensation.

This aspect I believe is crucial in regard to the Legislation and Regulations in that volunteers can be terminated without ever being subject to disciplinary action as contained within the Legislation, Regulations and organisational instruments.

The interesting part contained within the SA SES Standard Constitution is that a member can be terminated upon application of the Unit Manager, Regional Commander or Deputy Chief Officer without the need for any justification at all, just on a whim. Again if there is no instrument for signing on a volunteer, then I believe there is no valid instrument to terminate a volunteer.

I think my correspondent is ‘mistaken’.  There is no need for a formal document of appointment, the issue is what we lawyers call a ‘question of fact’ (rather than a question of law). The question is ‘was or is the person a volunteer with the SES?’ First, it’s not true that there is no legislation on the matter. The Fire and Emergency Services Regulations 2005 (SA) r 58 says:

An SASES unit must—

(a) maintain a list of the names of its members with each member’s residential address, date of birth, certificate of identity number and date of joining the unit;…

A person will be a member of the SASES if their name appears on a unit membership list.

In the absence of a formal document of appointment you would look for other evidence – did they turn up for and were they accepted for training? Were they issued with a uniform? Were they held out by the SES as a member? Did they respond with the SES? Did they subject themselves to the discipline of the organisation? Did everyone behave as if they were a member?  One doesn’t have to answer all those questions, but they are the sort of questions that would be relevant and would allow someone, including a court, to determine that the person was, or was not, a member of the SA SES.

If you are a volunteer, then you are a worker for the proposes of the Work Health and Safety Act 2012 (SA). (To be identified as a work (s 7) is not the same as saying the volunteer is ‘deemed an employee’.  They are a worker, a worker may or may not be an employee).

And there is a means for compensation as noted in my earlier post Compensation for the death of volunteer firefighters across Australia (February 13, 2020)

In South Australia a volunteer firefighter is presumed to be employed by the Crown and is therefore a ‘worker’ (Return to Work Act 2014 (SA) s 4 and Schedule 1; Return To Work Regulations 2015 (SA) r 69).

The same provisions apply to SES volunteers (Return To Work Regulations 2015 (SA) r 69(1)(a)(i)).  Therefore a member of the SES is covered and the answer to who is a member will be answered by reference to the questions above.

As for disciplinary action of course, it is not the case that a member ‘can be terminated upon application of the Unit Manager, Regional Commander or Deputy Chief Officer without the need for any justification at all, just on a whim’.  Anyone seeking to discipline a member is required to comply with the Fire and Emergency Services Regulations 2005 (SA) r 62 which sets out detailed procedures to manage the discipline of volunteers.  These provisions are binding on the ‘Unit Manager, Regional Commander or Deputy Chief Officer’.

And the right to receive natural justice is a common law right that will be implied where a decision by one person affects the rights and interests of another, Even if there was an attempt to say that a person, who everyone thought was a member was not in fact a member because he or she had not completed ‘form a’ that person would be entitled to ‘natural justice’ (ie to be heard on the matter).

The law is far less concerned with form than substance. If there is no prescribed membership application form, then no form is required. The absence of a form does not mean there are no volunteers with SA SES. All the people whose names appear on the member list maintained by SES units are volunteers. And others may be found to be volunteers if they behave as if they are volunteers and the SES behaves as if they are volunteers even if it turns out there’s been an error in some paperwork somewhere.

Conclusion

There is nothing in the Return to Work Act 2014 (SA), the Work Health and Safety Act 2012 or the Fire and Emergency Services Regulations 2005 (SA) that says a person is a member if and only if they have completed form ‘A’.  In the absence of such a requirement my correspondent is mistaken. There is no implied rule of law that says that one can only be a member of something if there is a ‘form’.  If the government intended that a member as a member if and only if they completed the membership form, it would need to say that. In the absence of that rule it does not mean there are no volunteer members, it means that membership is not determined by whether or not someone signed the form. The prescribed evidence of membership is that the person’s name is entered on the list maintained by their SES unit but even that may not be determinative.  Assume Bill has been turning up, and out for years, receiving long service medals, accepting appointments, travelling for training and out of area response etc but it turns out that another person, with a similar name resigned nad when updating the list, Bill’s name was accidentally removed but the resigning member’s name still appears on the list.  A court, and I suspect the workers compensation insurer, would have no difficulty in finding that Bill was, and remains, a member of the SES.

Even without ‘a “formal instrument” which you sign on joining’ it is still possible to identify who are members of the SES and they are all  …workers for the purposes of the Work Health and Safety Act and deemed employees for the Return to Work Act. Should anyone seek to terminate their membership they have to comply with the Fire and Emergency Services Regulations 2005 (SA) r 62 and internal procedures.

 

Today’s correspondent

… was wondering what laws surround the use of red and blue lights and a siren in SA.

I believe using these to pull someone over would be impersonating a police officer, right?

What about having them fitted to a vehicle, I understand it would be a breach of the ADRs and be defectable [sic] but would it be an offence to have them fitted and use them to, let’s say make way through traffic?

If so, what would be the penalty and offence?

Would the same also apply to using magenta lights?

For earlier posts on red/blue lights, see https://emergencylaw.wordpress.com/page/2/?s=red%2Fblue

In South Australia (Police Act 1998 (SA) s 74)

A person who, without lawful excuse—

(a)         … or

(b)         represents himself or herself by word or conduct to be a police officer,

is guilty of an offence.

Maximum penalty: $2 500 or imprisonment for six months.

I have no doubt that using red/blue lights to communicate to a driver that he or she is required to pull over would be representing oneself by ‘conduct to be a police officer’ and would therefore constitute the offence of impersonating a police officer (s 74(1)(b)).

The Road Traffic (Light Vehicle Standards) Rules 2018 (SA) cl 114(5) says ‘A vehicle, other than an exempt vehicle, a special use vehicle, or a State Government enforcement vehicle must not be fitted with a light that flashes…’. I think, given the context of the question, I can infer that we are not talking about any of the vehicles listed. For clarity, an ‘exempt’ vehicle is (cl 3):

(a) an Airservices Australia vehicle; or

(b) an Australian Border Force vehicle; or

(c) an emergency vehicle; or

(d) a police vehicle.

A ‘special use’ vehicle is (cl 114(1)):

(a) a vehicle built or fitted for use in hazardous situations on a road;

(b) a vehicle used on a road under a dimension exemption;

(c) a vehicle built or fitted to accompany a vehicle mentioned in paragraph (b);

(d) a vehicle that is a bus fitted, before July 1999, with a sign telling road users that the bus carries children.

A special use vehicle may be fitted with a magenta light (cl 114(3)). An exempt vehicle may be fitted with any coloured light (cl 114(2)).

It is a breach of the standards to drive a vehicle on the road where the vehicle does not comply with the standard (Road Traffic Act 1961 (SA) s 116) so to drive a vehicle that is fitted with flashing lights where it is not ‘an exempt vehicle, a special use vehicle, or a State Government enforcement vehicle’ is to drive in breach of the Standard. The driver is subject to a maximum penalty of a fine of $2500 (s 117).

As for using such lights to make way through traffic, another driver may believe that they are obliged to make way for the vehicle because, if it is displaying red/blue flashing lights it must be a police or emergency vehicle. It follows that the driver could be guilty of impersonating a police officer (Police Act 1998 (SA) s 74) just as they would be if they tried to pull another driver over. Equally they may be guilty of the offence of impersonating an emergency services officer (Fire and Emergency Services Act 2005 (SA) s 126).  Given the driver would have no exemption from the road rules he or she would be criminally liable for any offence they committed along the way (eg failing to give way to other traffic, negligent driving, speeding etc).

Conclusion

The questions, and my answers are:

1. I believe using these to pull someone over would be impersonating a police officer, right? Yes, that’s right.
2. … would it be an offence to have them fitted and use them to, let’s say make way through traffic? Yes.
3. If so, what would be the penalty and offence? A maximum fine of $2500 plus the penalties associated with any traffic offences along the way.
4. Would the same also apply to using magenta lights? Yes.

Today’s question follows from yesterday’s post Is being disrespectful to a politician a breach of the RFS Code of Conduct (February 17, 2020).  Before I get to the question I see that there have been news reports that the firefighter in question was sacked.  He is reported to have said to The Project (see 5AA Firefighter Says He Was Sacked After His Rant About The Prime Minister (17 February 2020):

… he was stood down because of the comments:

“The message I got was about time you brought the truck back because we were about to send the police to go look for you. And then there were further comments with gestures and arm movements saying that I’m finished. It’s all over.

“Another captain from another brigade within Batemans Bay came out and I asked him the question, I said: ‘What’s going on?’ He said: ‘You’re finished because of your allegations and foul language against the PM of the country while representing the RFS’.

“Didn’t know you could get sacked from a volunteer organisation but apparently you can.”

I cannot believe that gets press space. Someone saying ‘you’re finished’ is not getting sacked, it’s someone expressing an opinion. Any member must have had some exposure to the RFS Code of Conduct and have realised that of course one can have one’s membership of a voluntary organisation removed, but not summarily – see Service Standard 1.1.2 Disciplineand most of the posts that appear here – https://emergencylaw.wordpress.com/category/disciplinary-matters/.  Given the effort the RFS goes to set out the Code of Conduct and ethics and the processes if it has in place if it wants to cancel a person’s membership no-one could honestly have believed that the reported comments meant that they, or anyone else, had been ‘sacked’ or dismissed from the RFS.

The next step in a matter that is being blown out of all proportion is today’s question:    

… regarding the reported creation of the West Nelligen Fire Brigade as a private fire fighting brigade outside the RFS management.  I have no interest on the political ramifications, rather the legal cover that may or may not exist for such a brigade. in particular it is mentioned that all intended members have their own insurance, bit of a blanket statement as I’m sure the insurance issue goes beyond covering themselves for injury and would extend to public liability among other things. in relation to the Rural Fires Act what would be the standing of a private brigade with regards to what is and isn’t covered, what they are and not allowed to do etc

(see ‘Firefighter insists he was sacked for anti-PM rant after NSW RFS denies claim’ SBS News (Online) (17 February 2020)).

Should ‘a number of local farmers from the Nelligen area to start a new community fire brigade, which has no affiliation with the NSW RFS’ they would be a private club. They could not use the title Rural Fire Brigade, they could not use the RFS shed or equipment. They would enjoy no rights or protections under the Rural Fires Act 1997 (NSW). They would, presumably, not be notified of triple zero calls. They could exercise no power nor authority that is granted to rural fire brigades by the Rural Fires Act.

At a fire they would be subject to the direction and control of the RFS (Rural Fires Act 1987 (NSW) s 22 including the power (s 22A) of an officer of a rural fire brigade or group of rural fire brigades to:

… cause to be removed any person, vehicle, vessel or thing the presence of whom or which at or near a fire, incident or other emergency might, in the officer’s opinion, interfere with the work of any rural fire brigade or the exercise of any of the officer’s functions.

Depending on how they organised themselves and how they behaved they could commit offences contrary to the State Emergency and Rescue Management Act 1989 (NSW) s 63B relating to impersonating ‘an emergency services organisation officer’.

For related discussions see:

• Operating a private fire brigade in SA (May 18, 2019);
• What is a NSW fire brigade? (August 27, 2014);
• Self help firefighting in Victoria (August 30, 2014); and
• Neighbours helping neighbours during a Victorian bushfire and the powers of the CFA (November 28, 2014).

 

 

Today’s question relates to the requirement for a ‘blue card’ by members of QFES – see Working with children check for QRFS and SES (July 20, 2019).  The question is:

In the cacophony surrounding the QFES interpretation of Blue Card requirements for volunteers by 31 March 2020, volunteers who do not wish to comply with that requirement are being told to resign or be sacked. As the First Officer of a QLD RFB, my understanding is that a brigade member can only be dismissed by the brigade of membership, not the QFES Commissioner, am I correct?

Secondly, can I using the authority given to a first Officer in an emergent fire situation, be prevented from calling on the assistance of those volunteers who have either resigned or been dismissed as a result of the Blue Card turmoil?

Question 1

The QFES Commissioner is ultimately responsible for the management of the Rural Fire Service and SES in Queensland (see Status of Queensland Rural Fire Brigades (September 10, 2014)).

There is nothing on membership of Rural Fire Brigades in the Fire And Emergency Services Act 1990 (Qld). The closest provision is s 81 that says ‘The commissioner may dismiss a person from any office held with a rural fire brigade or may disqualify a person from holding any office’ but given s 81 is about ‘officers of rural fire brigade’ it would infer that an officer, and a person ‘holding any office’ is different from a ‘member’.

Interestingly, s 132 says ‘The SES consists of the persons appointed by the commissioner as SES members.’  With the power to appoint comes the power to terminate the appointment (Acts Interpretation Act 1954 (Qld) s 25). There is no equivalent of s 132 when it comes to the Rural Fire Brigades. There is no provision that specifically that says the Commissioner can dismiss a member but equally there is nothing say a First Officer can, nor is there anything in the Fire and Emergency Services Regulation 2011 (Qld). The disciplinary provisions in Chapter 3, Part 4, Division 3 clearly relate to employees, not volunteers. But someone has to have that power to determine who is, and who is not, a member.

Given the Commissioner’s role is to form brigades (s 79) approve and at times direct Brigades with respect to their rules (s 80), direct how elections for officers are to be held, approve elections and appoint (and withdraw the appointment of) officers (s 81), determine the functions of a brigade and it’s area of operations (s 82), provide equipment for the brigade (s 84) and to be ‘responsible for the efficiency of rural fire brigades and may provide training and other assistance to them (s 85) it would stand to reason that the Commissioner can set out standing orders and procedures for membership including termination of membership and the Commissioner’s role in that process.

Unlike NSW RFS documents, the Queensland documents do not seem to be publicly available so I cannot see them but I would suggest that there are standing procedures such as the ‘the Code of Conduct for staff and volunteers’ that does empower the Commissioner to terminate a person’s membership. In any event, such authority could be implied in order to allow the Commissioner to fulfil his or her duties with respect to the emergency services.

Question 2

At a fire where (s 83):

… a rural fire brigade is in charge of operations for controlling and extinguishing a fire, the first officer of the brigade has, for that purpose—

(a) the powers of an authorised fire officer, subject to any limitation imposed by the commissioner; and

(b) the control and direction of any person (including any fire officer) whose services are available at the fire.

Prima facie that would allow the first officer to ‘control and direct’ former ‘volunteers who have either resigned or been dismissed’ but who have made their ‘services … available at the fire’.

However s 83(3) says ‘Any person exercising a power or discharging a function under this section must comply with any code of practice and with any direction of the commissioner’ so if the Commissioner has directed that such persons are not be used, even if they are available, then that specific direction would override the general power in s 83(2). Again I don’t know whether such a direction has, or has not, been given.

Today’s question relates to the (in)famous video of an RFS volunteer telling the Prime Minister exactly what he thought – https://www.youtube.com/watch?v=DweZi38mWoI

The RFS has released a statement via Facebook that says:

The NSW RFS is aware of reports concerning the status of volunteer member Paul Parker from the Nelligen area.

We can confirm Paul remains a member of the NSW RFS and has not been dismissed.

My correspondent asks the question ‘is being disrespectful to a politician a breach of the code?’

Being disrespectful to a politician is not specifically prohibited by the RFS Code of Conduct and Ethics.  That’s not to say that it could not be an example of conduct that is a breach but it is not defined as a breach. So what can we say about Mr Parker? The answer is ‘nothing’.

It is not for me or any other observer to say whether or not this conduct (or any conduct) is or is not a breach of the Code. Some may think it was, other may think it was not. On these issues, opinions can differ. That is why in disciplinary proceedings someone would have to make a complaint of a breach, an appropriate officer would have to consider the complaint and consider whether that officer thinks the conduct could be a breach. Then the member would have to be asked if he accepted there was a breach, or not. If he did not the investigating officer would have to consider all the circumstances and decide if indeed there was a breach.  It is only after that process when all the circumstances have been considered that one could conclude whether there was, or was not, a breach in this, or any case.

 

This is another question from ‘a volunteer in the NSW RFS who is under investigation on a disciplinary matter’ and that you are ‘currently stood down’.  A look at recent posts will see a number about disciplinary proceedings in the RFS and they all relate to this matter.  I cannot, however, keep acting as a pro bono lawyer and commenting on this case.  I will give an answer here but I ask my correspondent to to stop sending questions about this matter and I will decline to answer future question.

Having said that, today’s question is:

The RFS  has appointed an investigator into the matter. I have told the investigator ,in writing ,that I need certain documents that I want to submit as part of My side of the story.

Am I entitled to some form of “extension “ while I get the documents or do I have to give the investigator my side of the story now and hope to submit my documents later.

The answer to the question ‘Am I entitled to some form of “extension “ while I get the documents…’ is ‘it depends’. To answer that question would require knowledge of what is the alleged misbehaviour, what is the evidence being relied upon, what documents are claimed to exist, why it is claimed that they are needed, why does the RFS resist the claim for those documents, and perhaps more. It is not a simple answer.

Just because a respondent says they ‘need’ the documents does not mean others will agree. As a respondent (ie someone responding to the allegation) my correspondent has to ask for the extension and the decision maker has to consider it. The decision maker may say ‘no’ if they think the matter is urgent, the request is unreasonable, the documents are not relevant and for other reasons set out in my earlier post Discipline in NSW RFS – accessing the original complaint (January 13, 2020).

If there is a request for an extension and it is refused, that gives what we lawyers call an ‘appeal point’. That is if the respondent wants to take the matter to the Supreme Court or the Civil and Administrative Tribunal they can argue that the process miscarried as they were not given the requested extension. In that case an independent referee (the judge or tribunal member) will consider the arguments as to why it was claimed the documents were needed and any counter argument as to why an extension was not granted an rule on whether the respondent or the RFS was right.

The respondent does not ‘have to give the investigator [your] side of the story now…’ They can refuse to take part until the documents are received, but that may not stop the decision maker making a decision and then they would have to take the matter further. If you give ‘[your] side of the story now’ they may find that they agree with you and then you save a lot of hassle. Or you take part but make sure you have noted your claim that you have been disadvantaged by their refusal and decide later what you want to do.

What my correspondent really needs is legal advice from a lawyer that has been engaged and who has considered the particular case.

I suspect this question has come from someone who has not been involved with the emergency services, but it still deserves a respectful answer. The question, from Queensland, is:

I’ve just been told AGAIN that misuse of the Emergency 000 number is a criminal offence.  Because after half an hour of continual sirens here in Ipswich, I will call 000 and tell them that there is misuse of sirens going on here.

My question is:   Is the misuse & overuse of sirens that occurs constantly here a criminal offence?   There is no way that these Ambos & fire engines are all attending emergencies when they occur 24/7 at all hours (yes 2am or MN) and sometimes even play tunes on their sirens.

Vexatious calls to triple zero

The first question is, ‘is misuse of the Emergency 000 number a criminal offence?’ It is an offence for a person to ‘request that the [ambulance] service provide an ambulance service for a person (the “patient” ), unless the patient is sick or injured and requires an ambulance service’ (Ambulance Service Act 1991 (Qld) s 47). Equally it is an offence to make false calls for the fire and emergency service (Fire And Emergency Services Act 1990 (Qld) s 150B) but neither of those sections deal with the triple zero service. And anyone who rings triple zero to complain about the noise is not requesting an ambulance or fire and emergency service.

In any event the triple zero call service is not run by state governments, so it is not state legislation that is relevant. The Telecommunications Act 1997 (Cth) deals with the ‘”emergency call service” that is (s 7):

…  a service for:

(a)  receiving and handling calls to an emergency service number; and

(b)  transferring such calls to:

(i)  a police force or service; or

(ii)  a fire service; or

(iii)  an ambulance service…

There is no offence, in that Act, of making a call to the triple zero service where an emergency service is not required and where the person is not actually requesting the emergency services to attend.

The Criminal Code 1995 (Cth) s 474.18 does provide for a relevant offence. It says:

(2)  A person commits an offence if:

(a)  the person makes a call to an emergency service number; and

(b)  the person makes the call otherwise than for the purpose of reporting an emergency; and

(c)  the call is a vexatious one.

Penalty:  Imprisonment for 3 years.

(3)  In determining whether a call by a person to an emergency service number is a vexatious one, have regard to:

(a)  the content of the call; and

(b)  the number, frequency and content of previous calls the person has made to emergency service numbers otherwise than for the purpose of reporting emergencies; and

(c)  any other relevant matter.

It follows that if a person makes repeated calls to triple zero to complain about the noise from the local ambulance and fire service, particularly where he or she has been warned that the calls are inappropriate may well be committing a criminal offence.

It should also be noted that ringing triple zero would be completely pointless. The emergency call service does not operate the ambulance service or the fire and emergency service. They answer calls to triple zero and pass the calls onto the relevant emergency service. Telling them there is a ‘misuse & overuse of sirens’ (whether that’s true or not) will achieve nothing. The person who takes that call cannot do anything about it. If my correspondent wants to raise the issue, he or she should contact Queensland Ambulance and/or Queensland Fire and Emergency Service. Harassing the triple zero call taker will just upset another person’s day for no purpose.

Is the misuse & overuse of sirens that occurs constantly here a criminal offence

Well it could be. There are provisions for breaching noise standards (Environmental Protection Act 1994 (Qld) s 440Q) but there are no default standard for a siren (ss 440R-440ZA). Further, excluded from the prohibition are ‘noise from the ordinary use of a public road or State-controlled road’ (Schedule 1, cl 1(f)) and noise from ‘performing a function under the Disaster Management Act 2003’ (cl 2(c)).

In any event the question supposes that there is a ‘misuse & overuse of sirens’. My correspondent says ‘There is no way that these Ambos & fire engines are all attending emergencies when they occur 24/7 at all hours (yes 2am or MN)…’ On what basis they reach that conclusion is unknown. The emergency services operate a 24 hour a day, 7 day a week operation. Emergencies occur at 2am or I suppose MN means ‘midnight’. Of course many calls to the emergency services are not emergencies. A fire brigade may respond to a fire alarm that turns out to be a fault in an automatic alarm system and an ambulance service may respond to a call for urgent assistance that turns out to be a call to something trivial, but they don’t know that it’s a false alarm until they get there so it is an emergency response.

The Transport Operations (Road Use Management–Road Rules) Regulation 2009 (QLd) require drivers to make way for emergency vehicles where the vehicle is (emphasis added) ‘displaying a flashing blue or red light …  or sounding an alarm’ (rr 78 and 79). Further the driver of an emergency vehicle is exempt relevant road rules when, inter alia, he or she is ‘taking reasonable care’ and ‘the vehicle is displaying a blue or red flashing light or sounding an alarm.’  It follows that siren is not required in every case but the point of the siren is to warn other road users that the emergency vehicle requires clear passage and the driver may seek to drive in a way contrary to the road rules. Sounding the siren, as well as activating the beacons, is part of ‘taking reasonable care’. The reason that the emergency services use the lights and sirens is to reduce the risk of a road accident and injury to others to whom the owe an established duty of care. It is a reasonable, if not prescribed, response to the risk to other road users.

Conclusion

It follows that there are two possibilities.

1. The emergency services in Ipswich are busy and are responding to emergency calls at all hours of night and day which is something that the emergency services are expected to do; or
2. There is a conspiracy between two unrelated services, Queensland Ambulance Service and Queensland Fire and Emergency Services to drive around using their siren to annoy the neighbours and ‘sometimes even play tunes on their sirens’ (given that the sirens do not play tunes).

My correspondent says the better explanation is (2) rather than (1) above. I suspect most readers of this blog would accept that explanation (1) seems like the more reasonable explanation.

The reason for conclusion (2) is ‘There is no way that these Ambos & fire engines are all attending emergencies when they occur 24/7…’ Presumably the evidence for that, as is the case in so many FaceBook comments is ‘that explanation doesn’t fit my experience. It’s not my experience that there are emergencies every day at all hours of the day or night and my experience – my data point of one – must reflect the true world so if it’s not true in my experience it cannot be true in anyone elses’. Of course those in the emergency services would have a different experience and I’m sure would rather be in bed at 2am rather than driving around playing ‘tunes on their sirens’ to annoy local residents.

Misuse and overuse of sirens could be an offence under the Environmental Protection Act 1994 (Qld) but it would require detailed knowledge of noise standards and those provisions (detailed knowledge that I don’t have) to determine if that is possible. But, of course, that implies there is ‘misuse and overuse’ of sirens. To prove that would require more than mere conjecture that ‘There is no way that these Ambos & fire engines are all attending emergencies when they occur 24/7 at all hours…’ A person would have to get details of each callout and show that the use of the siren was a deliberate misuse rather than a response to an emergency call. The fact that it may turn out that there was no emergency would be irrelevant if there was a response to an emergency call.

In the meantime calling ‘000 [to]… tell them that there is misuse of sirens going on here’ could be an offence under the Criminal Code 1995 (Cth)..

 

Today’s question is

In South Australia, as in the rest of Australia now, there are certain terms that are protected in relation to the provision of healthcare, including ‘nurse’ and ‘paramedic’. Does the same apply to the term of ‘ambulance’? is there anything stopping a first aid provider from placing a large sticker on their van and calling it an ‘ambulance’?

Victoria, Tasmania and Queensland

In Victoria (Ambulance Services Act 1986 (Vic) s 39(1)(c))) a person must not:

… use the word “ambulance” (other than on a registration label) on any vehicle that is not owned or operated by an ambulance service without the written authority of the Secretary.

In Tasmania (Ambulance Service Act 1982 (Tas) s 39):

Unless authorised by the Commissioner, a person must not drive, operate or have charge of, or allow another person to drive, operate or have charge of, a vehicle, other than an ambulance, that is –

(a) marked with the word “ambulance” ; or

(b) otherwise marked or altered, or bears any inscription –

so as to imply, or lead to the belief, that the vehicle is an ambulance capable of providing ambulance services.

In Queensland (Ambulance Service Act 1991 (Qld) s 48):

(1) A person must not—
(a) without the written authority of the Minister—use the words ‘Ambulance Service’ or any similar name, title or description; or…
(c) … use the word ‘Ambulance’ on any vehicle that is not operated by the service…

Again, as noted in a comment below respect to Victoria, this restriction does not apply to St John Ambulance Australia (Qld) or to ‘the use of the words ‘animal ambulance’ on a vehicle owned or operated by an animal welfare organisation for the transport of sick or injured animals’ (s 48(2))

South Australia

The Health Care Act 2008 (SA) s 57 says:

A person must not display the term “Emergency Ambulance” on a motor vehicle driven on a public road unless the vehicle is being used—

(a) by SAAS; or

(b) by a person in circumstances prescribed by the regulations.

That does not stop the use of the word ‘ambulance’, just ‘emergency ambulance’.

The ACT and NSW

In the ACT (Emergencies Act 2004 (ACT) s 63):

A person commits an offence if—

(a) the person is not approved by the Minister …and

(b) the person provides emergency, ambulance, firefighting or rescue services.

In New South Wales (Health Services Act 1997 (NSW) s 67E):

(1) A person must not–

(a) directly or indirectly provide or take part in the provision of transport for sick or injured persons for fee or reward, or

(b) conduct for fee or reward any operations similar to the operations carried on by the Health Secretary under this Chapter,

without the consent of the Health Secretary and except in accordance with such conditions (if any) as the Health Secretary may from time to time impose.

These are not prohibitions on the use of the word ‘ambulance’ but having ‘ambulance’ on your vehicles could, I suppose, be used as evidence that you are committing one of these offences.

The Northern Territory and Western Australia

The Northern Territory and Western Australia have no relevant legislation.

Today’s question is a bit of an odd one.

I am a volunteer in the NSW rural fire service, captain of a brigade. Many firefighters and landowners, often one in the same in the bush, have said to me that they believe that the Army /Military should have been called in a lot earlier than they were. I agree with them.

The NSW government has announced an Independent Bushfire Inquiry – see https://www.nsw.gov.au/improving-nsw/projects-and-initiatives/nsw-independent-bushfire-inquiry/

When you look at the terms of reference to the NSW enquiry (https://www.nsw.gov.au/improving-nsw/projects-and-initiatives/make-a-submission-to-the-bushfire-inquiry/nsw-independent-bushfire-inquiry-terms-of-reference/), items 3,8 and especially 9, many say to me “Here is a chance to change things and get the army in sooner” I agree with them.

The concern among fire fighters and especially me is that If I/we make a submission to the inquiry the RFS will kick our butts for badmouthing the RFS. Can the RFS kick our butts if we make a submission?

If by ‘kick our butts’ it means ‘take disciplinary action’ the answer has to be ‘no’. The RFS can only ‘kick butts’ if there is a breach of the code of conduct. The inquiry says (emphasis added) ‘The Inquiry welcomes submissions from bushfire-affected residents, emergency and support personnel, organisations and the general public.’

There is nothing in the code of conduct that would stop a person making a good faith submission, reporting on what they observed and their opinions. But there are limits. For example the code says:

The NSW RFS is strongly committed to providing and maintaining a respectful and inclusive workplace, where all members are treated with dignity, courtesy and respect at all times…

If you make a submission saying that a senior officer made decisions in bad faith, out of malice or make a personal gain you are a) probably wrong and b) at risk of getting your ‘butt kicked’.  Most times that people try to assign motivation (he did it because he had a private interest, or he did not like me or some such) it is based on false reasoning. The implied reasoning is:

1. I know the truth
2. This is what I know
3. If another person does not (or did not) share my view he or she must have had an improper motive because there can be no other explanation given what I know is true.

But of course the other person has a different perspective, different information, different obligations, a different world view. So limit submissions to what you personally observed or can establish and don’t malign others.

Remember too that the NSW RFS cannot ‘call in the army’. The NSW Government can ask the Commonwealth for that assistance. There are Constitutional issues in the use of the ADF. You can make submissions on what ‘should be’ but don’t confuse what ‘should be’ done next time with what was possible at the time. The point of an inquiry is to make recommendations to make necessary changes to allow what ‘should be’ in the future.

So write the submission carefully, formally without making personal criticism.  If you do that, the RFS cannot stop members making a submission to a NSW Government inquiry that is specifically calling for those submissions nor ‘kick butts’ for a submission that the member are made in accordance with the 3.3 Ethical Decision Making principles. It can be quite ethical, and in the best interests of the RFS to make a submission that says ‘this is what happened – we think it would have been better if this had happened instead’ but not ‘this is what happened and it happened because this person is an idiot, or corrupt, or wouldn’t listen to my sensible suggestion’.

Of course I cannot comment on how others may react or perceive you if you make submissions that are critical of them or their decision making or who think your submissions are incorrect or inappropriate.

Following my post Compensation for the death of NSW volunteer firefighters (February 8, 2020) I was asked:

When you have a moment, please could you briefly tell us the law in the other states and territories?

My answers assume we are talking about members of the various volunteer fire brigades. These answers represent the maximum values. In every case compensation on death is for the benefit of dependants, not the deceased so there are formulas involved.

My answers are:

The ACT

I can find no easy answer to the question in the ACT.  A member of the ACT RFS should direct that question to the RFS.

The Northern Territory

In the Northern Territory a volunteer firefighter is taken to be a worker for the purposes of the Return to Work Act 1986 (NT) (s 3(8)) so is entitled to workers’ compensation under that scheme.  The lump sum for the benefit of dependant spouse and/or children is ‘364 times average weekly earnings at the time the payment is made’.  There does not appear to be a table with current values so the calculation will have to be made each time.

Queensland

In Queensland the provision is somewhat odd, the Workers’ Compensation and Rehabilitation Act 2003 (Qld) s 15 says:

(1) WorkCover may enter into a contract of insurance for this subdivision with the authority responsible for the management of the State’s fire services.

(2) The contract may cover a volunteer firefighter or a volunteer fire warden (“volunteer” ).

(3) A person covered by the contract is entitled to compensation for injury sustained only while attending at a fire, or practising, or performing any other duty, as a volunteer.

(4) However, a person covered by the contract is also entitled to compensation if the person is a specified volunteer firefighter who sustains an injury that is a specified disease.

That is, it says Workcover may, not must enter that contract. Further the Fire and Emergency Services Act 1990 (Qld) s 154C says the Commissioner ‘must enter into a contract of insurance with WorkCover…’ (emphasis added) to insure SES members, but there is no equivalent mandatory obligation with respect to members of rural fire brigades.

The lump sum death benefit for a worker leaving dependants is based on a formula taking into account whether or not there is a dependant spouse and if there are children under 16 or students. The current lump sum benefit is $637,250.00 (Workers’ Compensation and Rehabilitation Act 2003 (Qld) s 200 and WorkCover Queensland, Workers’ compensation benefits including QOTE (Date of injury on or after 31 August 2017).

South Australia

In South Australia a volunteer firefighter is presumed to be employed by the Crown and is therefore a ‘worker’ (Return to Work Act 2014 (SA) s 4 and Schedule 1; Return To Work Regulations 2015 (SA) r 69).  The maximum lump sum benefit paid to the dependants of a worker who dies at work, as at 1 January 2020, is $521,158 (s 61 and Return to Work SA Schedule of Sums, 29 January 2020).

Tasmania

In Tasmania (Fire Service Act 1979 (Tas) s 130):

For the purposes of the Workers Rehabilitation and Compensation Act 1988 and the Asbestos-Related Diseases (Occupational Exposure) Compensation Act 2011, the [Fire Service] Commission shall be deemed to be the employer of all persons appointed or employed pursuant to’ [the Fire Service Act 1979 (Tas)].

Volunteers are ‘appointed’ (s 26). The maximum lump sum on death (again depending on the number and age of dependants) is 415 units. A unit is ‘The amount represented by the basic salary’. It is currently $910.87 (https://worksafe.tas.gov.au/topics/compensation/workers-compensation/information-for-employers/basic-rate-and-salary-indexation) so the maximum lump sum is 415 x $910.87= $378 011.05.

Western Australia

In Western Australia ‘A responsible agency must effect and keep current insurance providing compensation for injury caused to present and former volunteers…’ (Fire and Emergency Services Act 1998 (WA) s 36ZQ). The insurance must provide benefits equivalent to those provided to employees under the Workers’ Compensation and Injury Management Act 1981 (WA) (Fire and Emergency Services Act 1998 (WA) s 36ZR).

The maximum death benefit under the Workers’ Compensation and Injury Management Act 1981 (WA) is ‘250% of the prescribed amount calculated as at the date of the worker’s death’ (s 18(2) and Schedule 1A cl 4). The prescribed amount is currently $232,050.00 (https://www.workcover.wa.gov.au/wp-content/uploads/2019/05/Indexation-of-Workers-Compensation-Payments-2019-20.pdf) so the maximum death benefit is $580 125.