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Discussion on the law that applies to or affects Australia's emergency services and emergency management, by Michael Eburn, PhD and Barrister.
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Employment Protection for NSW Volunteers

9 June, 2016 - 10:25

With the recent severe weather and many volunteers responding to help their community, the NSW Premier made a declaration under Part 3A of the State Emergency and Rescue Management Act 1989 (NSW).  You can read the declaration on the NSW Legislation website.

Section 60B of the State Emergency and Rescue Management Act 1999 (NSW) says:

An employer must not victimise an employee of the employer for being absent if the absence was due to the employee taking part in emergency operations as a member of an emergency services organisation and the absence occurred while this Part applied to the operations (pursuant to an order of the Premier under this Part).

Victimise means much more than just dismiss.  According to s 60C:

An employer victimises an employee if the employer:

(a) dismisses the employee from employment with the employer or terminates the engagement of the employee by the employer, or

(b) alters the employee’s position in his or her employment with the employer, or alters the circumstances of the employee’s engagement by the employer, to the employee’s prejudice, or

(c) otherwise injures the employee in his or her employment with, or engagement by, the employer.

In other words it is unlawful, in NSW to sack or otherwise adversely alter the terms of a person’s employment because they were on emergency service duty.

With the declaration in place (and it remains in place for 30 days), any employer who victimises an emergency service volunteer commits a criminal offence (s 60B) with a maximum penalty of $3300 (s 60B and Crimes (Sentencing Procedures) Act 1999 (NSW) s 17, which provides that in NSW a penalty unit is worth $110).  If the employer is convicted the Court may also order the payment of compensation, that the employee is reinstated and various other remedial orders (see s 60F).  I have not heard of any NSW employees being victimised because of their decision to help the community as volunteers, but at least those that are responding to the current emergency have, with the Premier’s declaration, added legal protection.


Categories: Researchers

Two Questions regarding NSW SES

7 June, 2016 - 22:48
  1. What are the legislative response for SES in relation to Animals

One of the functions of the SES is ‘to carry out, by accredited SES units, rescue operations allocated by the State Rescue Board’ (State Emergency Service Act 1989 (NSW) s 8(1)(e)).

According to the State Emergency and Rescue Management Act 1989 (NSW) s 3, rescue means (emphasis added): ‘the safe removal of persons or domestic animals from actual or threatened danger of physical harm’.    According to the Prevention of Cruelty to Animals Act 1979 (NSW) s 4, a domestic animal is ‘an animal which is tame or which has been, or is being, sufficiently tamed to serve some purpose for the use of human beings, or which, although it neither has been nor is being nor is intended to be so tamed, is or has become in fact wholly or partly tame’.

It follows that an SES unit that is an accredited rescue unit is required to respond to rescue ‘domestic animals’ which would include traditional pets (cats, dogs etc) but also farm animals and the like.

  1. Can SES Bronze Licence (or any other licence), drive an operational vehicle (rental unequipped) with an Amber Flashing Light?

Putting aside the issue of SES licence, I’ll rephrase that question as ‘Can the SES put a amber flashing light on a rented vehicle that is being used as part of the operational response to an emergency?’  The answer is not what one might think.  The Road Transport (Vehicle Registration) Regulation 2007 (NSW), Schedule 2 – Vehicle Standards cl 124 says that a State Emergency Service vehicle may be equipped with blue or red flashing light (and I note that everyone interprets ‘or’ to mean ‘and’; cl 124(2)(p) and 124(7)(a)).  But what is an SES vehicle?  That’s not defined.  Does it mean a vehicle owned by the SES or operated by the SES?  I would suggest it has to mean the later as an agency like the SES may enter into all sorts of arrangements to access vehicles including leasing them or, in the past, using vehicles provided by local councils. The SES aren’t going to put roof bars and radiator lights on a car they’ve borrowed for the day but they may well do so on vehicles that are being supplied as some sort of vehicle leasing/fleet arrangements.  The issue isn’t really who ‘owns it’ but who is operating it.  If that’s the case, why not a rental vehicle too?

That of course doesn’t answer the question. The list of vehicles that can have flashing warning lights goes from (a) to (q).  The colour for police, ambulance, fire, SES and some other vehicles are set out in cl 124(7).  If the type of vehicles is not listed then s 124(7)(e) applies and it says ‘in the case of any other vehicle-a yellow light unless otherwise approved by the Authority’.

If I’m right and a hired vehicle can be an SES vehicle if it’s being used by the SES for operational reasons, then it has to be fitted with a red or blue light (cl 124(7)(a)) not a yellow light.  (Let me add I don’t think any vehicle driven by a member of the SES becomes ‘an SES vehicle’ so I’m not suggesting people can put flashing lights on their own cars.  But if a vehicle is hired by the SES then it could be an SES vehicle).   So the answer is ‘no, they can’t have a yellow or amber light, but they could have a red or blue one’.   Of course whether the SES wants to put a red or blue light on an otherwise unmarked car, and whether that’s a good idea, are different questions.   John Killeen, author of Ambulance Visibility Blog may have some thoughts on those questions?

 


Categories: Researchers

When does a duty of care return?

6 June, 2016 - 20:47

A sports trainer or first aider treats a person, hands the care to paramedics, but do they then take back the care of the patient.

I am a Level 2 sports trainer with about 10 years’ experience. Recently I had a player knocked out for approx. 15-20 secs. On field assessment there was no signs or symptoms of concussion or injury. Player was moved to the bench and then had delayed onset concussion signs and symptoms and complained of a sore neck. Player deteriorated rapidly and became emotional unstable. I called an ambulance and they arrived 7-10 minutes later. I had performed inline manual support of player’s neck. Paramedics determined it was soft tissue (which I was pretty sure it was but followed protocols.) Paramedics then advised player that they were happy for him to go home and be monitored by his mother and did not transport him to hospital. I followed up with patients mother the next day as she is a friend of mine. She advised that he had a big headache, sore neck and was still not quite right. I suggested she get medical advice. A colleague has queried if I then took back the duty of care in following up and giving advice. What are your thoughts on this? I have resumed duty of care? I always follow up with serious cases the next day or 2 and don’t want to put myself at risk.

Let me change the facts a bit and remove the words ‘as she is a friend of mine’; that is we can explore the point with more clarity if the only relationship is first aider/patient.

The Civil Liability Act 2002 (NSW) s 5B (and its equivalent in each jurisdiction) says:

A person is not negligent in failing to take precautions against a risk of harm unless:

(a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and

(b) the risk was not insignificant, and

(c) in the circumstances, a reasonable person in the person’s position would have taken those precautions.

If we take that as a starting point, there is no doubt that the trainer/first aider owes a duty of care to their patient on the playing field.   I accept that, in the scenario I’m given, the care provided by everyone met the requirements of ‘reasonable care’. For my correspondent it means the ambulance has been called, paramedics have assessed the patient and I accept made a reasonable decision to allow the person to go home with his mother.  If that was the end of the story that would, indeed, be the end of the story.  If the patient later suffered complications or their condition deteriorated it does not follow that the care provided up to that time has been reasonable.

The complication is that my correspondent rings the next day to check up on the patient.  I think there can be no doubt that at some point in the conversation the question ‘how is he?’ will be asked. There are two possible answers. Either 1) ‘he’s fine everything’s good’ or 2) ‘he’s not fine’ in fact the very answers my correspondent was given serve as an example of the second type of answer, ‘he had a big headache, sore neck and was still not quite right’.

If the answer was (1) ‘he’s fine’ all well and good.  If the answer was a type (2) answer, what do you do with that information?  You can either say ‘oh dear, sorry to hear that, I hope he gets better soon’ or ‘gee, that’s not so good, you should probably get medical advice’. In some circumstances the answer might be ‘we have to get off the phone and you have to call triple zero and ask for the paramedics’.

What’s the risk?  Let’s assume that the person has spinal or head injuries, or even both.  The risk could be catastrophic if care isn’t obtained.  Remember I’m assuming that the only relationship is first aider/patient, not that there is a friend or family relationship.   In that case  the trainer/first aider has special knowledge, perhaps more than the patient or his carer.  The trainer/first aider, because of that knowledge, knows of the risk and of the need to care.  Presumably the carer does not (if they did they would already have sought that extra care).  So you have a vulnerable person, the trainer/first aider has the relevant knowledge and can do something to protect the vulnerable person (ie give advice) and if they don’t the vulnerable person can’t protect themself because they don’t know of the need to do so.

Imagine if later the person drops dead and it’s found that they had cerebral oedema and if they’d been brought to hospital earlier it could have been treated and their life saved.  I can imagine the carer, in our scenario the mother, saying ‘The person who treated him rang me and asked how he was, I told him and that person didn’t say ‘seek medical care’ so I didn’t think to do so. If it was serious that person would have or should have said something’.  And that argument is attractive, because why else did you make the phone call?  If you’re not prepared to give advice if the answer is ‘things aren’t good’ what’s the point of following up with the person?  There have been cases where doctors have been liable because in consultations they didn’t stress the need to get further care or follow up on tests or the like and the plaintiff/patients have claimed ‘they didn’t tell me it was urgent or important or critical’.  I think a similar argument could work here.

Why did I remove the words ‘as she is a friend of mine’?  Because if there’s a pre-existing friendship the call can be explained by that relationship and one would understand that a friendly inquiry does not create a legal duty, but I would still expect advice to be given to seek care.  But if there is no pre-existing relationship, the only reason for the phone call is because you, the person making the call, was the person who provided care at the field and you are not providing follow up care.   If you don’t have in mind what you are going to say if the answer to ‘how is he’ is ‘not good’ then why are you making the call?

So yes, I think making the follow up call does bring with it a duty to respond ‘reasonably’.  That doesn’t mean that the caller has to rush over and provide an ambulance service or to deliver advice and care beyond their level of skill or expertise.  In this case a reasonable response may be exactly what was given ‘I suggested she get medical advice’ but the alternative of saying nothing or advising the person to do nothing in circumstance where they know you are a relevant health carer so you know your advice is, in the circumstances, required and likely to be acted on would be indefensible and could be negligent.

 


Categories: Researchers

Responding ‘the closest fastest most appropriate resource’ in South Australia

6 June, 2016 - 18:32

This question, with regard to the potential legalities surrounding the response of the closest fastest most appropriate resource to fire or other emergency, comes from a member with affiliations with both the South Australian Metropolitan Fire Service and the South Australian Country Fire Service.  My correspondent says:

In the peri urban areas of Adelaide city there is an area of interface between the SAMFS [Metropolitan Fire Service] and the SACFS [Country Fire Service]. The MFS have a clearly gazetted fire district (under legislation) with a boundary and everything outside of this is designated as CFS area (although to my understanding this is not a gazetted area just “CFS area” ie: not gazetted fire district).

As the city has grown and expanded we now have a situation where the volunteer CFS brigades are responsible for an area with major urban risks which traditionally were wheat paddocks or scrub or sparsely populated.

The response of emergency services is coordinated through a Computer Aided dispatch system (SACAD) which is supposed to respond the closest, fastest most appropriate resources, however here is the rub. There is no delay allocated against volunteer response as opposed to fulltime response. Resource responses are submitted for entry into CAD by local volunteer officers despite the fact that the local fulltime station would statistically have a much faster and not to mention, guaranteed response over the local volunteer resources.

In a recent example a fire occurred in an area of MFS and CFS interface in which the local MFS resource was the closest most appropriate resource however were not responded due to local CFS response plans in CAD.  The local volunteer unit took a period of time to assemble a crew and mobilise to the fire.  This time period was of such an extent that if the local MFS station had been mobilised at the same time (time of call) they would have been on scene and fighting the fire approximately one minute before the local volunteers became mobile from their station.

The incident was in CFS area (just) and as such response plans are under the control of the local CFS volunteer officer.  In this case they had not included the (closer) MFS station in their response plan.

The legal question is… Where do the emergency services and indeed the Government of SA stand in supporting a system which neglects to send the fastest closest most appropriate resource without a system of checks and balances against service delivery and what, if any, action could the local homeowner, whose house has burnt down, take against ESO’s who are consciously not including the fastest, closest most appropriate resources.

Will the legislation protect the actions (or lack of action) of the CFS in this example or is there a higher duty to compel ESO’s to put the community first and certainly before any inter-service rivalries?

A fire district is established by the Fire Services Commission (Fire and Emergency Services Act 2005 (SA) s 4).   The South Australian Metropolitan Fire Service (MFS) is, amongst other things, required to ‘provide services with a view to preventing the outbreak of fires, or reducing the impact of fires, in any fire district’ and ‘provide efficient and responsive services in any fire district for the purpose of fighting fires…’ (s 26).  Fire services in those part of the state that are not part of a proclaimed fire district are provided by the Country Fire Service (CFS). The CFS has similar functions to the MFS (s 59).   Both the MFS and the CFS can operate in areas that are the responsibility of the other service (s 4(4)) and take control of the response to an emergency if the other service is not yet in attendance (ss 42(2)(E) and 96(2)(D)).   The Act does not say that either agency is required ‘to respond the closest, fastest most appropriate resource…’

Even so, it is the case that the MFS is the agency for responding to fires within a fire district, and the CFS is the agency for responding to fires outside a fire district. If the property in question was outside a fire district, then responsibility for managing the response lies with the CFS.   In these days of ‘all hazards, all agencies’ the agency in charge of response does not need to actually ‘respond’ they could ask another agency to assist.  So I infer there’s nothing to stop the CFS asking the MFS to respond to a fire outside the fire district – save that removing that appliance from the fire district does necessarily leave the fire district with less cover.

I don’t know, from the facts given, whether or not a duty officer has to make a call on what appliance to respond to each call, or whether the response plans are determined, loaded into CAD and then the despatcher applies them.  Either way it doesn’t really matter.  Putting aside the assertions that the decision here was somehow improper or based on inter-service rivalry, and without wanting to get into an actual case and an actual decision, I can look at general principles.

The fire services and the South Australian Fire and Emergency Services Commission are given broad functions and powers under the Fire and Emergency Services Act 2005 (SA).  Having been given those broad directions, it is up to them to consider all they ways fire services can be delivered and make choices.   Those choices include questions of where to put fire stations, how many fire fighters to employ or volunteers to engage, what appliances to buy, response protocols and the like.  Making those decisions needs to take into account the budget, the population, the state of the fire science, what’s available, firefighter welfare etc.    That may mean that even if the appliance is the closest, it may not be the most appropriate.

A person who thinks that a fire service or the Commission has failed to perform its functions could seek ‘judicial review’ to compel them to perform their tasks according to law but a court will recognise that the Parliament has given the discretion as to how to perform the tasks required of the service to the service and its Chief Officer.  A Court will not override that decision unless the decision ‘… is so unreasonable that no reasonable authority could ever have come to it…’ (Associated Provincial Picture Houses Limited v Wednesbury Corporation [1948] 1 KB 223).

In order to sue for damages a person in the situation described would have to show that the decision to despatch the CFS, not the MFS was negligent.  The first thing that would require was establishing that the fire service owed the resident a duty of care and generally, a fire service does not – see Liability for fire – a review of earlier posts (January 8, 2016).   If they could show a duty of care they would have to show the action was in fact negligent, that is it was below the standard to be expected of a reasonable person in the defendant’s position.  To assess that the court needs to consider

… what a reasonable man would do by way of response to the risk. The perception of the reasonable man’s response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant’s position. (Wyong Shire v Shirt (1980) 146 CLR 40, 48).

So the person responsible for nominating the appliance and who considers that the MFS may be quicker than the CFS has to consider what difference will it actually make to the outcome?  What impact will it have on the fire district to have their appliance leave, (assuming that the fire station has probably been put there to service the relevant community)? And that the policy is that the CFS respond outside a fire district, the MFS inside one.

The homeowner would also need to show that a different decision would have led to a different outcome.

So the answer to the question ‘what, if any, action could the local homeowner, whose house has burnt down, take against ESO’s who are consciously not including the fastest, closest most appropriate resources’ is not much.  The word ‘consciously’ is I think a pejorative here, in that I believe my correspondent intends to imply some mala fides which I don’t accept.  But consciously can mean ‘knowingly’ and the CFS may well despatch a volunteer brigade knowing it will be slower than a full time brigade because for a whole variety of reasons, including the need to keep the urban brigade for fires in the fire district.  Provided that is not so unreasonable that no-one would think the relevant officer was attempting to perform his or her duties, and provided it is supported by reasons (ie ‘reasonable’) then there will be no action the homeowner can take.

If the MFS station is close to a growing population but the boundary of the fire district is such that CFS brigades from further away are responding, then the real issue lies not with the fires services but the Fire and Emergency Services Commission.  It is up to the Commission to ‘… establish a fire district or fire districts for the purposes of the operations of SAMFS‘ (s 4(1)).  Further the Commission may ‘vary the boundaries of a fire district’ (s 4(2)).  The Commission is also ‘to provide for the effective allocation of resources within the emergency services sector’ (s 8(1)(e)).    If the population of ‘the city has grown and expanded’ to such an extent that a volunteer CFS brigade can’t really provide the necessary support then it might be incumbent upon the Commission to change the boundary and bring that population within a fire district.  Making that decision is more complex than just deciding who can respond fastest, because if that was the only issue every fire station would be staffed 24 hours a day, but communities can’t afford that.

The various duties or functions set out in the Act are statutory duties, but an aggrieved person can’t necessarily sue for a breach of statutory duty, there has to be an indication that the parliament intended that someone could sue (see ‘Black Saturday’ litigation (May 11, 2011).  So the chances of a home owner being able to sue are slim to zero.

The issue here is political. Governments get elected to do various things and one of the things we expect them to do is manage the emergency services but also to make allocations of resources across competing demands.  More money could be spent on emergency services but that would mean less money on something else.  Decisions have to be made but for every decision there are alternatives.  In Australia there is a separation of powers between the courts, the parliaments and the executive (represented here by the Commission, the CFS and the MFS).  The parliament makes the law (the Fire and Emergency Services Act 2005 (SA)), the executive have to put it into action and the court’s role is to ensure that the executive acts in accordance with the law – not to ensure that the executive makes the decision that a litigant or a judge would like them to make.  If the executive are making decisions that are within their discretion, a judge won’t interfere.  In this case the parliament has said it is up to the Commission, the MFS and the CFS to determine how fire services are provided.  If they are ignoring their duties, acting in bad faith or making decisions that are ‘so unreasonable that no reasonable authority could ever have come to it’ then a court may have jurisdiction to intervene.  Otherwise, if a community is unhappy with the decisions that are being made, it is up to them to take it up with the government or, if a person is really passionate about the matter, run for election!

Conclusions

The questions put to me were:

Where do the emergency services and indeed the Government of SA stand in supporting a system which neglects to send the fastest closest most appropriate resource without a system of checks and balances against service delivery?

It is up to the government, through the responsible minister to determine issues of emergency service management.   There is no obligation to have a system that guarantees ‘the fastest, closest most appropriate resource’ particularly as the ‘fastest, closest’ may not be the most appropriate.  It is up to the agency (with the government ultimately responsible) to decide what is ‘most appropriate’.

What, if any, action could the local homeowner, whose house has burnt down, take against ESO’s who are consciously not including the fastest, closest most appropriate resources.

None.

Will the legislation protect the actions (or lack of action) of the CFS in this example or is there a higher duty to compel ESO’s to put the community first …?

Yes, the legislation and the common law will protect the CFS in this example unless there is perhaps actual mala fides which I doubt (despite my correspondent’s implications to the contrary).  If there is a duty to ‘put the community first’ it is debatable what that means.  If the MFS were despatched to the fire and then someone’s house, in the fire district, burned down they might say that the decision to despatch the MFS did not ‘put the community first’.    How to deploy resources, not only how to deploy appliances that are sitting at a station, but where to put stations and what policies to put in place, are complex issues that require consideration of multiple factors so they are given ultimately to the Chief Officers.  That in a given case they mean a delay that another policy may have avoided does not mean that anyone is failing to ‘put the community first’.    If a person thinks the agencies are not putting their community first there remedy lies not in law, but in running for elected office and making the case in the forum of government.

 

 

 

 


Categories: Researchers

Changes to the CFA and some non-advice

5 June, 2016 - 12:56

It is clear to anyone paying attention to the news that there are significant industrial issues affecting Victoria’s Country Fire Authority and the relationship between employed firefighters, the United Fire Fighter’s Union, the CFA and CFA volunteers.  The matter is such that I’m asked a ‘couple of questions … that centre around the current political climate’.

A mass rally has been called for tomorrow* at Treasury Gardens in the Melbourne CBD, the volunteer association has directed members to wear their yellow PPC so as to identify them as CFA volunteers (has brand logo’s attached). The Chief office has in the past made it clear to employee’s (united Fire Fighting members) that clothing identifying the organisation was against CFA policy and not to be worn to political protests or rally’s. As a result, the United Fire Fighters Union has its own unbranded PPC for such events.  Would it be reasonable to apply the Chief Officers clear instruction to volunteers? If not, then what would constitute the disparity?

Sources have also indicated that some brigades would refund members (and presumably their families) the financial cost to attend the rally/protest, as this reimbursement comes from publicly donated monies (fund raising) for the purpose of administration and operational costs not covered by the organisation does this reimbursement raise propriety issues if not constitutional or legal implications when used to support political action?

We have been informed in the past that whilst monies gained from fundraising and donations are considered the individual brigades the reality is that the CFA has ownership and ultimately responsibility for said accounts. Does this in anyway impact legally on the decision to reimburse members.

* I received the email on Sunday 5 June so inferred that the rally was scheduled for Monday 6 June but others have said it will be/was on 5 June.

Whilst the questions are very interesting, I don’t think I should answer them.  On the ‘About’ page on my blog I say:

This is not a place for providing specific legal advice, so I won’t be able to answer questions that are based on actual events … If your concern clearly falls in the above categories then understand I may not be able to give an answer, but remember there is no harm in asking and if I think I shouldn’t answer a question or comment on an issue, I’ll say that.

Given the ongoing nature of the current dispute this is clearly about ‘actual events’ not a theoretical possibility and it is likely (if I can be so bold) that what I say might actually affect decisions by people about whether they go to the rally or what they wear.

And I can’t give specific advice here even if I wanted to. I haven’t seen ‘the Chief Officer’s clear instruction’ so I don’t know if it applies to volunteers or not.   As for the use of funds that would require detailed knowledge of how particular brigades are established, and relevant financial delegations and Victorian rules on using finance.    The CFA is different to say the NSW Rural Fire Service.  The CFA registers brigades upon their application so it is still a more old-fashioned model where people can form a brigade and then apply to be part of the CFA (s 23(1)(b); noting that it is an offence to operate an unregistered brigade (s 26)).  In New South Wales, RFS brigades are established by the RFS so they don’t have any independent existence (Rural Fires Act 1997 (NSW) s 15; see also ‘How autonomous are NSW Rural Fire Brigades?’ (February 25, 2015)).   If CFA brigades are established and then registered they may have property independent of the authority and that is implied by s 22 that provides that ‘A person in whom personal property is vested for or on behalf of a brigade …may a) transfer the property gratuitously to the Authority’.  I can certainly understand why the CFA management would not want brigade money spent on sending members to rally against the government but whether they have that much direction over the use of brigade funds would require much more detailed knowledge of actual delegations and the structure of the particular brigades involved. It is not for me to tell CFA brigades or their members what they can do with their money in circumstances where it is at least likely that they may seek to act on that advice. 

Finally, does it raise constitutional issues?  Yes it must, see Speaking out on social media (May 9, 2016) – there is an implied right to free political speech. One can understand why the CFA doesn’t want people to represent themselves as CFA members when protesting some general government policy or running for election.  For example, a person handing out ‘how to vote’ cards at the forthcoming federal election should not wear their uniform as their CFA membership is irrelevant and would be an attempt to add some improper link to the CFA.  But a protest where the protest is about the CFA may be a different issue. People don’t need their CFA uniforms to show they are members of the CFA if they are at a protest of CFA members expressing their views on issues affecting the CFA.  Whether they are in their PPE or not it’s clear that they are members of the CFA and their membership of the CFA is an issue of essential relevance to exercising that right of political free speech – the very point is that the people protesting are members of the CFA.  We’ve seen fire brigades protest before using fire service appliances and uniforms – see darinsullivan.net Fire Strike and associated photos and description of fire fighters and appliances rallying before the NSW Parliament.   Whether that is sufficient to attract the constitution right should there be an attempt to discipline members who wear their PPE to the rally would be a debatable point.   To take that debate further would, however, again be giving specific legal advice to people who may well choose to act on it.  I’m in no position to say to members of the CFA who may be planning to go to the rally, that they do or do not have a constitutional right to wear their uniforms.  

So there are legal issues here. Issues of:

  • How autonomous are CFA brigades and how can they spend money that has been collected by the brigade for purposes not covered by the CFA? and
  • Would the constitutional right of free political speech extend to allow members to resist a direction not to wear CFA issued PPE to a rally where membership of the CFA is in fact the very issue?

On this blog I’m happy to say that they are relevant legal issues that could arise should anyone seek to take disciplinary or legal action against a brigade, the brigade executive or a member who attends the rally.  I am not prepared to give advice on what the answer actually is or will be; these questions need to be directed to the organisers of the rally.


Categories: Researchers

Refusing service to repeat SES callers

4 June, 2016 - 16:23

A member of the NSW SES asks:

Is the NSW SES able to refuse to provide assistance to storm affected properties, where the owner/resident has previously had the NSW SES provide assistance multiple times, but since then has not taken any action to to mitigate future issues?  (This question is not meant to look at life threatening scenarios.)

I’ll provide you with a hypothetical scenario as it provides more context…

A home owner calls the NSW SES for the first time due to storm damage in their yard. The storm damage appears to be caused by lack of owner maintenance and something from council. The location of buildings etc on the property are a major contributing factor to the problem. The team attends, places some property protection, does the maintenance the owner should have done, and tells the owner to fix the cause of the problem or at minimum perform maintenance.  Some of the problem is due to an issue on council property, Council proceeds to fix their side of the problem. In a period of under 2 years, the home owner calls the NSW SES several times. Same action is taken and advice is given by SES team as on previous calls. The home owner gets to a point where they are calling “because it might happen”.

The State Emergency Service Act 1989 (NSW) s 8 says:

(1) The State Emergency Service has the following functions:

(aa) to protect persons from dangers to their safety and health, and to protect property from destruction or damage, arising from floods, storms and tsunamis…

(b) to act as the combat agency for damage control for storms and to co-ordinate the evacuation and welfare of affected communities…

There are two issues to note:

  • There is no definition of what is a ‘storm’ as opposed to ‘some rain’ or ‘a windy day’ (see The NSW SES is the combat agency for floods and storms – but what is a flood? or a storm? (October 6, 2015);
  • Sections 1(aa) and 1(b) do not refer to an ‘emergency’ response. Although the agency is the State Emergency Service there is very little reference to ‘emergency’ in the Act.  Part 5 (ss 18A-24) deals with ‘Emergencies and Emergency Powers’ and applies during emergencies caused by floods (s 19) but what is an ‘emergency’ is not defined.    The State Emergency and Rescue Management Act 1989 (NSW) defines an ‘emergency’ as

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

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

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

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

If that is the relevant definition for the State Emergency Service Act one can see that organising a massive response where whole communities have been affected is an emergency, but responding to damage to a single house is not.    But as I’ve noted, ss 1(aa) and (b) don’t refer to an emergency.  In the scenario I’m given the householder’s property is at risk of damage arising from a storm.   One could say that the risk was also due to the homeowners lack of care but that would be true for every job – and if one took that to its logical extreme, the SES would only turn out to overwhelming events where no amount of preparation and enhanced building standards would have prevented the damage.  That could be a reasonable approach but it would stop the SES from responding to anything.

I ask myself could the SES impose a limit and say, for example, everyone is entitled to two calls for the same problem but no more?  That would be politically difficult and a person denied service would no doubt go to ‘A Current Affair’ or the Daily Telegraph with their story of woe particularly if they couldn’t afford to have the work done, or they were a tenant and the landlord refused to do the work, or they had arranged for it to be done but were still waiting for the tradie to find the time etc.   But if they want to law what would happen?

They could seek a remedy under administrative law in effect requiring the SES to perform its functions.  An agency like the SES has a wide discretion on how it gives effect to its Act and performs the functions required of it. If the SES had a clear policy that ‘we do x, but we don’t do y’ and if that policy was a reasonable approach then failure to do ‘y’ would be ok. For example, to take s 8(1)(aa) to its logical extreme, the SES should be out making sure everyone’s home is StormSafe but it doesn’t. A person could say that ‘given every time it rains my home floods the SES should come and do the repairs and that would be consistent with s 8(1)(aa) as it would be protecting ‘property from destruction or damage, arising from … storms’.   It may be consistent with s 8(1)(aa) but it doesn’t mean the SES has to do it.  The SES has to consider its resources and all the calls on those resources and make decisions on what it does and doesn’t do.   A fire brigade isn’t going to turn out because last time a person used the toaster the fire alarm went off and it might happen again; equally if it’s the rule being applied to everyone, the SES isn’t going to turn out because last time it rained a homeowner got wet so not responding “because it might happen” is fair enough if it’s consistently applied.  So the SES does have some policy, even if its unstated, on what it does and does not do. The SES responds to water coming in the home, but does not actually make homes StormSafe.

It’s probably the case that if the SES also had a clear policy on the number of responses they would make in non-life threatening situations that could also be defended but it would have to be expressly stated and made clear to a person who had made the relevant number of calls.   But if that was a policy position a person might find little sympathy if they sought some sort of order to require the SES to keep turning out.    As it is I’m not aware of such a policy and so it’s not, in my view, open to a unit to decide that a person is simply relying on the SES when they could take action to help themselves.

SES as a public good

As an aside, I do think it is legitimate to question why the state does provide an emergency service response to a single house impacted by a storm. If a fire breaks out in a home the community has an interest in making sure it’s extinguished to stop it spreading, but if water enters a roof why is it anyone’s problem but the homeowner?  If the homeowner has insurance, there is no doubt that the insurance company would respond if the SES did not as they want to minimise the loss and therefore the cost.  And if the homeowner is not insured, why isn’t that their problem?    That insurance companies have the most to gain no doubt in part explains why they pay 73.7% of the costs of providing the SES (State Emergency Service Act 1989 (NSW) s 24F; the State pays 14.6% and local councils 11.7%).   If the SES refused to turn out to events impacting upon a single home so that insurance companies had to set up their own response service they would, not doubt, protest the imposition of the SES Contributions.

So the SES is the insurance companies’ response agency but to avoid the old fashioned disputes that occurred when insurers provided fire brigades and brigades would only fight first where the property was insured, the SES is provided as a public good. That is, it is provided to everyone and it’s a public good because no one insurer or homeowner could afford to provide the state wide, and urgent response, that the SES can provide.   By requiring everyone to contribute to the cost (via taxes and premiums) everyone gets a benefit they could not afford if they had to pay for it on a ‘user pays’ basis.   If I understand my undergraduate economics studies, I think that is a classic example of a public good.

Conclusion

The question asked was:

Is the NSW SES able to refuse to provide assistance to storm affected properties, where the owner/resident has previously had the NSW SES provide assistance multiple times, but since then has not taken any action to to mitigate future issues?

On my current understanding the answer is ‘no’.  It could be ‘yes’ but only if the State decided to adopt and implement a policy consistently across the State.  It would certainly not be open at unit level to make that decision about a particular home owner, on what might be called an ‘ad hoc’ or case-by-case basis.


Categories: Researchers

Forcing entry to save a life

3 June, 2016 - 14:28

Today I’m asked:

To what extent can a forceful entry be conducted to save a life that either doesn’t want to leave or doesn’t want to live. This would also include forcefully handling the victim.

From a volunteer’s perspective a police officer would not be available to negotiate as time will not be permitting.  An example as attached:

https://m.facebook.com/story.php?story_fbid=1593978244249229&id=1571144583199262

I hoping that when a life is jeopardy. Logical steps would be taken. Although law isn’t always logical.

The issue in the video has nothing to do with the law – a matter I shall return to.

If what we are concerned about is liabilty for property damage, that is whether it’s ok to damage the car or home to get access to a person in need, the answer is clear- see

As for ‘forcefully handling the victim’, it is the law that any touching of another person, without either their consent or some other lawful justification or excuse is a battery, which is both a crime and a  tort (that is a civil wrong for which the person can recover damages without the need to prove actual injury).  So can you use force to pull someone from danger? Yes, because there is a lawful justification or excuse.

In Collins v Wilcock [1984] 3 All ER 374, Lord Justice Goff (the title ‘Lord Justice’ is a dead giveaway that this is an English case) said:

The fundamental principle, plain and incontestable, is that every person’s body is inviolate. It has long been established that any touching of another person, however slight, may amount to a battery… The effect is that everybody is protected not only against physical injury but against any form of physical molestation….But so widely drawn a principle must inevitably be subject to exceptions… to allow for the exigencies of everyday life [there is] … a general exception embracing all physical contact which is generally acceptable in the ordinary conduct of daily life.

What is acceptable in the ordinary conduct of daily life will depend on the circumstances and the attitude of the court (should it ever get that far).  One example given is touching a person in order to get their attention.  Another example may be grabbing someone to stop them walking into the path of a bus or off a cliff, or to pull them from a burning building or car.

There is also an exception for actions done out of necessity.   That has been talked about often enough in the context of this blog with respect to providing health care where a person cannot consent.    Again it was Lord Goff who said (in In Re F [1990] 2 AC 1):

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

On this statement of principle, I wish to observe that officious intervention cannot be justified by the principle of necessity. So intervention cannot be justified when another more appropriate person is available and willing to act; nor can it be justified when it is contrary to the known wishes of the assisted person, to the extent that he is capable of rationally forming such a wish.

Necessity is a broad principle however and can form a defence to any tort or crime where the actions taken, although legally wrong, are intended to prevent a worse outcome and the actions are not disproportionate to the harm to be avoided.

 ‘An act which would otherwise be a crime may in some cases be excused if the person accused can show that it was done only in order to avoid consequences which could not otherwise be avoided, and which, if they had followed, would have inflicted upon him or upon others whom he was bound to protect inevitable and irreparable evil, that no more was done than was reasonably necessary for that purpose, and that the evil inflicted by it was not disproportionate to the evil avoided. The extent of this principle is unascertained’.”  (Sir James Fitzjames Stephen’s Digest of the Criminal Law (1st. ed., ch. 3, art. 43; 9th ed., ch. 2, art. 11) cited in R v Loughnan [1981] VicRp 43).

So assume you grab a person out of harms way in circumstances that are technically a battery but your aim is to avoid worse consequences (ie their death) and you took no more action and applied no more force than was necessary to achieve that objective, then you may be able to rely on the defence of necessity.

But to return to Lord Goff and In Re F, necessity can’t justify action contrary to the known rational wishes of the informed person.  Rational does not mean you have to agree with them.  A person, in my view, could be quite rational if they say they would rather stay in their home and try to preserve the lives of their pets rather than evacuate and leave them to certain death. You may not agree but that doesn’t make the decision irrational.

What it’s going to come down to is the urgency of the situation.  Pulling someone from a burning building because it’s necessary to not only save their life but because the rescuer also doesn’t have time to debate the issue is one thing.  Pulling someone from a building that is likely to flood in the next few hours when they have quite rationally explained their desire to stay and given their reasons for the decision is another.

So let’s return to the video that my correspondent gave a link to.  The issue here is not the law. I would infer that the people in that video couldn’t have dragged the driver out of the car even if they’d wanted to but I’m sure if they had there would have been no legal wrong. The issue here is much more basic and it’s about the first rule of rescue, don’t put yourself in danger.   A number of those rescuers were washed away and we’re not told if they lived or died.  But it would have been quite reasonable to simply leave her, if she didn’t want to get out there’s no point killing yourself trying to force her.

Emergency services have various statutory defences that would protect their members but I haven’t discussed those as the video that was the stimulus for this question was about citizen rescuers.  But even so the cost in resources is, I suggest, a major reason why the Australian emergency (and in particular fire) services have resisted forced evacuations.  They all have various legislative powers to require people to evacuate but why would you want to divert resources and expose emergency service workers to heightened risk forcing people to leave who don’t want to?   For further discussion, see:

Conclusion

The question I was asked was ‘to what extent can a forceful entry be conducted to save a life that either doesn’t want to leave or doesn’t want to live. This would also include forcefully handling the victim?’   The answer has to depend on the circumstances.  There is a difference between pulling a person from a building that may in due course, be in the path of the oncoming bushfire or flood, particularly when they have a clear and articulated desire to stay;  and pulling someone from an apartment where the fire is well engaged.

For them the doctrine of necessity would be expected to provide a defence if in the circumstances both potential rescuers and the person needing to be rescued face an imminent peril (in the case of the video, being washed away by flood water) and the actions taken were reasonable and proportionate to avoid that peril and the harm done (an unlawful touching) was not disproportionate to the harm avoided (in this case death).

 

 

 


Categories: Researchers

Turning out when under the influence of alcohol

31 May, 2016 - 21:00

A correspondent asks for advice on the possible implications

… from a member of a volunteer fire service turning out under the influence of alcohol to an emergency call.  The scenario is that they did not drive to the station or drive the emergency vehicle.  I see responding to an emergency as a workplace even though a volunteer is not paid.  Besides the straight forward implications such as putting colleagues at risk.  Also What could be the implications for the officer in charge of the truck? Any advice would be greatly appreciated.

Being ‘under the influence of alcohol’ or having in the blood the prescribed concentration of alcohol are offences for drivers, but we’re asked to assume that this volunteer neither drove to the station nor did they drive the appliance so the relevant road rules are not the issue.

Even so if a person is ‘under the influence’ of alcohol, that is affected by alcohol they should not turn out.  The first implication is that they can be subject to the disciplinary proceedings of their service, provided the service has a policy on the issue.    So, for example, NSW Fire and Rescue’s Alcohol and other Drugs Policy says, at paragraph 3(1) ‘A firefighter must not: (a) come on duty while under the influence of alcohol or a drug…’ (Note my correspondent does not say he’s from NSWFR, I’ve just used their policy as an example).

It is well established that for the purpose of the Work Health and Safety legislation that has been adopted across all jurisdictions other than WA and Victoria, the term ‘worker’ includes a volunteer (see for example, Work Health and Safety Act 2011 (NSW) s 7).    As a worker, a volunteer must (s 28):

(a) take reasonable care for his or her own health and safety, and

(b) take reasonable care that his or her acts or omissions do not adversely affect the health and safety of other persons, and

(c) comply, so far as the worker is reasonably able, with any reasonable instruction that is given by the person conducting the business or undertaking to allow the person to comply with this Act, and

(d) co-operate with any reasonable policy or procedure of the person conducting the business or undertaking relating to health or safety at the workplace that has been notified to workers.

That imposes obligations, enforced by the criminal law, to follow policy statements such as the relevant service’s alcohol policy and also not to undertake work that can impose a risk to others if the worker/volunteer is aware that they are affected by alcohol.

As for the ‘officer in charge of the truck’ I assume we’re talking about the crew leader/officer in charge.  Under WHS laws and no doubt service policy, people in the chain of command have obligations to both ensure that the policies are applied and also obligations to exercise their duties to reduce risks. It follows that a senior officer who failed to discharge his or her duties could also be subject to disciplinary action and, possible work health and safety prosecution (though to be fair, that is unlikely).

Conclusion

Not only a senior officer, but any member, should tell a member who is under the influence that he or she is not to turn out.

 


Categories: Researchers

New Zealand fire fighter charged over collision

31 May, 2016 - 20:23

A correspondent has drawn these two stories from New Zealand to my attention:

The story relates to reaction from the fire service after a volunteer was charged with ‘careless driving’ after a collision when responding to a fire call – ‘The driver of the car involved in the collision had to be cut from it, and was taken to hospital with broken ribs after the vehicle spun 180 degrees on impact’.   The article by Manch and Shadwell quotes the defendant’s solicitor saying:

“What more [he] could have done is beyond me, aside of course from just completely stopping at the intersection and not going through it.

“We want our emergency responders, such as ambulance drivers, police, fire, to get to the scene of an emergency as quickly as possible.

“If they’re paranoid about being charged with offences such as going through red lights, carefully, then they are not going to get to the scene of emergencies as quickly as they should do.”

A senior Wellington firefighter, who declined to be named, has confirmed that some firefighters in his brigade would now stop at red lights, fearing they might cause a crash.

“From instances in our brigade, drivers are taking particular care, even to the point that, when they get stuck in traffic, they’re turning their lights and sirens off and waiting for traffic to clear,” he told RNZ.

Of course we want emergency services ‘to get to the scene of an emergency as quickly as possible’ but as ‘quickly as possible’ has to take into account the driving conditions and the presence of other road users. No matter what the emergency, it can’t warrant killing or injuring other road users.    Further, an accident will delay the emergency services more than turning off the lights and sirens or stopping at a red light.    As a police spokesperson, quoted in the article says:

“No emergency justifies causing an accident. All responders should be aware that, if they crash, they do not get to the emergency, and they put other road users at risk.

But what else could the driver do?  Perhaps nothing but that is not for either his lawyer, or the police to determine.  People overlook the fact that the arbiter of what is ‘reasonable’ or ‘justifiable’ or ‘necessary’ (or whatever the relevant legal test is) is not the police but the court.  There is the idiom that ‘Not only must justice be done; it must be seen to be done’ – that is not that (or just) that outcomes should have the appearance of justice, but that people can see the process – that the process is open and public.  Courts are open to the public, anyone can sit in and watch proceedings and the judicial officer must hear both sides and must deliver the reasons for the decision in public.  That decision is then subject to review by the appeal courts, again in public.

Imagine if your loved one had been killed or injured in an accident involving an emergency service vehicle, and imagine too if the police said ‘we’ll they were proceeding to an emergency and we want to encourage our heroes so no charges will be laid’.  Whatever the merits of the case that would be outrageous.  The idea of the rule of law is that we are all ruled by law – including the emergency services.  The police can’t have a special rule or an attitude that ‘the firies or paramedics are part of the thin ‘blue line’ so there are special rules for them’.  There are indeed special rules, in Australia we’ve talked often about r 306 of the Australian Road Rules, but these are still part of the law, and the law still says that drivers must take care to avoid injury to other road users.    So if the circumstances suggest negligence (or worse) emergency service drivers can expect to be charged because it is the role of the police to put that sort of case before a court.  It is open to the defendant to put to the court the facts and arguments to the effect that the driving was not negligent and that the driver was taking all due care and did all that he or she could have done.  The answer to the question – was the driver guilty of the offence charged? – is then left to the community’s representatives, the jury.

Conclusion

The police spokesperson is correct ‘All responders should be aware that, if they crash, they do not get to the emergency, and they put other road users at risk’ and they can expect to face criminal charges particularly if someone is killed or injured.  If that reality causes drivers to go ‘…through red lights, carefully…’, ‘stop at red lights’ or ‘when they get stuck in traffic, … [turn] their lights and sirens off and waiting for traffic to clear’ then that has to be for the good.

 

 

 


Categories: Researchers

Legal action over Parkville fire

30 May, 2016 - 00:24

A correspondent who is a land surveyor:

… has a very big interest in both land law and emergency service law.  I was just reading this (https://au.news.yahoo.com/thewest/wa/a/31696560/woman-83-sued-over-parkerville-bushfire/?cmp=st (Amanda Banks, ‘Woman, 83, sued over Parkerville bushfire’ The West Australian (Online) 26 May 2016).  I’m not sure on WA land laws but I am assuming that there was an easement on this property? How is it possible to sue the servient tenement for this? Have you heard of this before? I’d love to find out more about this case, do you know where I can find out more information?

The gist of the story is that there is legal action over the Parkerville bushfire where, it is reported, 183 residents are suing for the loss of homes that were destroyed or damaged in the fire.  The article says

They are suing Western Power as owner of the allegedly defective pole where they claim the blaze started… The residents allege Western Power had a duty to maintain the pole in a safe condition.

They claim Thiess Services owed a duty of care under its contract for maintaining and inspecting the pole.

The amended writ also claims further and alternatively that Ms Campbell, as owner-occupier of the property on Granite Road, owed the plaintiffs a duty to take care to make sure the pole was in a safe and fit condition.

My correspondent refers to an ‘easement’ which is a right to use land for a particular purpose, in this case one would infer to run the power line across the land.  The ‘servient tenement’ is a fancy way of saying the owner of the land that was subject to the easement.   The fact that the new defendant is 83 is of course irrelevant but it makes the story more dramatic.

So how can this happen?  The answer is I can sue anyone simply by going to the court house and completing the relevant form and paying the relevant fee.  The Registrar isn’t there to review my claim and decide whether or not it is legally tenable, that is the role, ultimately, of the judge.    So the relevant plaintiffs can sue her simply by naming her on the claim. Equally the other defendants could have joined her as a defendant.

We don’t know if the defendant holds a ‘servient tenement’, may be Western Power say they don’t have an easement and it wasn’t their pole, but hers.  We don’t know what the defence has been but if that is the case, the parties may have wanted to join this defendant in case that was indeed the case.

Why would they do that?  Academics and High Court judges may like to think tort law is all about principle and apportioning liability where it should fall.  Others would realise it’s all about trying to find defendants with money.  Further defendants with money (insurance companies) try to find other defendants to share the losses.  Remember that the primary obligation of the board of an insurance company is to earn an income for their shareholders, not to waste money on issues of principle.    So Western Power and Thiess are being sued and they claim they are not liable; a prudent plaintiff joins the land owner just in case it turns out Western Power and Thiess are correct.

So what that she’s 83.  She owns a property that is worth something and more importantly, and I’m sure no doubt, she has an insurance policy and it is that insurer who the plaintiffs and other defendants want to bring into the action.  It’s nothing personal.

Now if she wins, and if she wins because the pole really did belong to Western Power and she was just the owner of the ‘servient tenement’ and if that’s decided by a Court of Appeal or the High Court, then lawyers and academics will say ‘you can’t sue the servient tenement’ but we don’t mean ‘you can’t name someone on the writ’, we mean ‘you can’t win if you do’. It’s like saying to someone ‘you can’t swim the English channel but you can try if you want to’.   It’s not that “can’t” means ‘not allowed to’ it means ‘you won’t actually succeed’.  Of course most people can’t swim the English channel, but some can and equally one might say ‘you can’t [successfully] sue’ but the right facts and the right lawyer, and the right judge in the right circumstances may well mean that there is success and perhaps a change in the law and sometimes just a sufficient difference from the ‘norm’ that the outcome is different.

It’s really important to distinguish the allegation from the outcome.  Starting court proceedings is simply to make an allegation. The plaintiffs here are alleging negligence by various parties.  They can do that but it doesn’t mean the claims are well founded.   Where can one find out more about the allegations?  At this stage the only place would be to approach the lawyers, who no doubt would not be willing to discuss it, or seek access to the files in the Supreme Court which are also unlikely to be given out to someone who happens to be interested.  If the matter goes to court, and if a judge makes a ruling on it, the judgment will be publically available, but this is clearly early days yet and there is much to go through before the matter ever gets near a judge.

Conclusion

Like most litigation in these circumstances this will turn out to be a fight between insurance companies.  Of the 183 plaintiffs most, if not all, are probably actually represented by an insurance company, an insurance company that has paid out and now stands in the shoes of the insured. They are not suing ‘on behalf’ of the insured, they are suing ‘as’ the insured and their aim is to get back money they have paid.  Thiess and Western Power and, no doubt, the new defendant will also not really be the defendants it will be their insurers.  It’s all about shifting the money.  Having a headline ’83-year-old woman gets sued’ sounds dramatic, but doesn’t begin to tell anything relevant about the story, and assuming facts (such as that there was an easement) also doesn’t help.  We’ll have to wait for the matter to be resolved to learn anything and of course, if it settles (as most cases do) there will never be any public exposition of what happened.

 


Categories: Researchers

Road Rule exemptions for Victorian ‘enforcement vehicles’

24 May, 2016 - 15:30

Today’s news from Victoria involves a tragic, fatal, multiple vehicle accident on a Melbourne freeway – see ‘Petrol tanker crash, rollover on Calder FreewayHerald Sun; and; see also ‘Calder Freeway crash: One dead after petrol tanker rolls, fuel spiltABC News (Online).

A correspondent who was there says:

I was in the vicinity of the area and on my drive into work I observed 2 VicRoads vehicles attempting to get to the scene.   In this instance, both were unmarked (Though they do have marked vehicles as well). They were both using their purple and white strobe lights, but I didn’t hear any sirens.  There seemed to be confusion among other drivers- they’re not red and blue as people would expect, and I noticed a lot of people seemed to just ignore them.

Where do VicRoads fit in with the Regs in relation to emergency vehicles and the use of lights and sirens?

The relevant rules are the Road Safety Road Rules 2009 (Vic).   On this blog we have often discussed the application of the road rules to emergency vehicles (ambulances, fire appliances etc) but a VicRoads vehicle is not an emergency vehicle.  For the purposes of the Victorian rules it is an ‘enforcement vehicle’ (Road Safety Road Rules 2009 (Vic) r 4).

Drivers of other vehicles have an obligation to move out of the path, to keep out of the path and to give way to an enforcement vehicle that is displaying a flashing ‘magenta’ (ie purple) light (Road Safety Road Rules 2009 (Vic) rr 78 and 79).    The driver of an enforcement vehicle has the same exemption from the road rules as a police officer or the driver of an ambulance (Road Safety Road Rules 2009 (Vic) r 306A), that is

A provision of these Rules does not apply to the driver of an enforcement vehicle … if –

(a) in the circumstances—

(i) the driver is taking reasonable care; and

(ii) it is reasonable that the rule should not apply; and

(b) if the vehicle is a motor vehicle that is moving—the vehicle is displaying a magenta flashing light or sounding an alarm.

Rules relating to parking and pedestrians also do not apply to enforcement workers when on the road in the course of their duties (Road Safety Road Rules 2009 (Vic) rr 307 and 308).

An enforcement vehicle may be fitted with a siren (Road Safety (Vehicles) Regulations 2009 (Vic) Schedule 2, cl 34) and ‘may be fitted with any light or reflector’ (Road Safety (Vehicles) Regulations 2009 (Vic) Schedule 2, cl 118).

Conclusion

The driver of an enforcement vehicle operating its magenta light and/or siren has the same right of way and exemptions as the driver of an ambulance, police vehicle or fire appliance.  It follows that ‘to just ignore them’ is to commit an offence. Having said that, however, I don’t mean to suggest that anyone at this accident did commit an offence.  Making way for the vehicles given the congestion would not have been easy, if it was possible at all and I certainly don’t know and can’t imagine the circumstances that everyone was facing.   I would also expect that even if there was an offence, a police officer at the scene had more important things to do that try to write an infringement notice.


Categories: Researchers

Road traffic exemption – Who determines if it is reasonable that the provision should not apply?

22 May, 2016 - 19:38

A correspondent from WA asks for an opinion regarding the Road Traffic Code 2000 (WA) and, in particular, its application to the driver of an emergency ambulance.  Rule 281 says:

A provision of these regulations does not apply to the driver of an emergency vehicle that is not being used for official duties by a police officer if –

(a)  in the circumstances –

(i) the driver is taking reasonable care; and

(ii) it is reasonable that the provision should not apply;

and

(b)  the vehicle is a motor vehicle that is moving and the vehicle is displaying a blue or red flashing light or sounding an alarm.

My correspondent asks:

Who determines if it is reasonable that the provision should not apply?

For example: An ambulance crew is instructed to drive under emergency conditions – lights and sirens – from an ambulance station to a nearby hospital in order to transfer a patient to another hospital.  Under normal driving conditions this journey, from the ambulance station to the hospital, would take approximately three minutes.  The patient is in a medical facility being treated by doctors and nurses. Can claiming this exemption be considered reasonable particularly if the patient is not ready for immediate transportation.

On raising this scenario with my employer the feedback received was that if a Doctor instructs an ambulance to drive under emergency conditions this removes the liability from the driver of the ambulance. In your opinion is this interpretation by my employer correct?

I’m not sure what my correspondent means by ‘liability’; so I’ll address the first question – Who determines if it is reasonable that the provision should not apply?

The first ‘person’ who has to make that determination is the relevant service.  Each service must have a policy (stated or unstated) as to when a ‘response’ is required.  In the context of an ambulance service it might be ‘respond to every triple zero call’ or perhaps ‘response’ driving is only authorised to calls that have gone through some triage process and the coordinator has determined the urgency of the required response.    The policy may be general, requiring officers in each case to determine how the policy applies to the given job, or it may be specific where the response status is actually given by the ComCen or supervisor when the job is allocated.   Whatever the policy it will be the first benchmark.  If a traffic ticket (for example a speed camera ticket) is issued the service is likely to, or I would say should, ask the driver what was happening.  If the driver confirms that they were ‘responding’ to the job the service should consider whether that accorded with their policy and if it did, write to the police to have the infringement notice withdrawn.

The second, but beyond doubt the most important judge of whether ‘it is reasonable that the provision should not apply’ is the driver.  Regardless of the response policy, regardless of the direction from ComCen, regardless of the pressure from the other crew members, it is the driver who has to decide whether or not he or she should take advantage of the exemption.   If the driver is approaching red traffic lights and considers that he or she should not proceed, the he or she should stop, turn off the warning devices and wait for the green traffic light.  The driver is always responsible for the safety of the vehicle, the other crew members, other road users etc.  I shall return to this later.

The next person called upon to decide whether or not ‘it is reasonable that the provision should not apply’ is a police officer.   A police officer who sees an ambulance drive contrary to the road rules, or is reviewing the speed or traffic light camera photo must decide whether or not, in that officer’s view, the conduct was ‘reasonable’.  To make that decision he or she should consider any representations as to the service policy and training and the task that had been assigned, but ultimately it is their call.  If they think that the driver was not taking reasonable care or the rule that driver ignored should not have been ignored, then they will issue a Traffic Infringement Notice and further, would decline to withdraw it when asked to do so.

Anyone who receives a traffic infringement notice can pay it, or they can declare that they are not guilty of the offence and elect to have the matter dealt with by a court.  That applies to the driver of an ambulance too, so if the driver thinks that the police officer was wrong they can elect to have the matter determined by a court.    In that case the matter will be heard by a Magistrate.  The magistrate will hear from police as to why they think the conditions necessary for r 281 were not met, and then hear from the driver and, if he or she is supported by the ambulance service the magistrate would also hear from the service officers, as to why they think what the officer was doing was reasonable.  The magistrate will explain what he or she thinks are the relevant facts and legal considerations and will determine whether or not r 281 does provide a defence in that particular case.

If either party, the driver or the police, disagree with the Magistrate’s ruling on what the law requires they could appeal.  In most jurisdictions an appeal from a Magistrate goes to a single Supreme Court Judge.  If that occurred the Judge would have to determine whether or not, in the circumstances, r 281 did apply to give the driver a defence.

If one of the parties thinks that the judge got the law wrong they may appeal to the Court of Appeal in which case three judges will review the decisions of the lower courts and give a statement as to what factors should be considered when deciding whether or not a provision of the Road Traffic Code should be applied to the driver of an emergency service vehicle.

Finally, if there is still disagreement, and if the disgruntled party can convince the High Court of Australia that there is a real, complex issue of law, and that perhaps courts in different states are taking different approaches to what is meant to be a scheme of national road rules, then there could be an appeal to the High Court.  The judges of that court will give the final answer of what are the relevant considerations that a service or police officer has to consider when deciding whether ‘it is reasonable that [a] provision should not apply’.

It should be noted that appeals to a Court of Appeal or the High Court of Australia are incredibly unlikely.  The value of a traffic infringement notice means such a fight just isn’t worth it and the High Court is unlikely to be very interested in sitting as the 4th court to determine a road traffic matter.  So appeals to that level of court are unlikely, but they are theoretically possible.  Most people, of course, don’t take these matters further than asking the police to withdraw the traffic infringement notice, and if they refuse to do so, they just pay the fine.

Where does the caller, whether it’s a citizen who calls triple zero or a doctor fit into that list?  The answer is ‘they don’t; they don’t get to decide what response is required’.    This goes back to my first decision make, the relevant service. They should have a policy and it may be that they have a policy that a doctor can request an ambulance and if the doctor says the request is ‘urgent’ then the ambulance service will direct its officer to ‘respond’ with lights and sirens. But it’s the service, not the doctor that is making that decision.    If a doctor is travelling with the patient and paramedics and expresses the view that the urgent nature of the patient’s condition requires an expedited response, he or she can ask for that to happen, but the doctor cannot direct the driver as to how to drive or to ‘turn on the lights and sirens’.

Let me then turn to the scenario – is it ‘reasonable’ for an ambulance to rely on r 281 and use lights and sirens to require other vehicles to give way and perhaps travel contrary to the normal road rules to travel 3 minutes to a place where the person is already receiving medical care?  I can’t answer that (I’m not one of the people listed above) but I can have some thoughts on how police or a magistrate may answer it.  The first thing to consider is that the treating doctor, who is with the patient, has requested an urgent ambulance response.   That would certainly be a factor to consider.  Then one would want to consider the traffic conditions and the time of day, is ‘response’ driving really going to make a difference to the response time? It’s going to cause other drivers to take steps to get out of the way, it will increase the risk.  If you’re driving through a congested area that’s full of cars and pedestrians your claim that you did not need to honour the 40km/h speed limit may not be ‘reasonable’.  On the other hand, if it’s a 3-minute drive in normal conditions but normal conditions are on a road with an 80km/h speed limit, it may be quite reasonable to put the lights and sirens on and travel at 100km/h.

Let me now turn to the second question – “On raising this scenario with my employer the feedback received was that if a Doctor instructs an ambulance to drive under emergency conditions this removes the liability from the driver of the ambulance. In your opinion is this interpretation by my employer correct?”   As I said I’m not sure what they mean by liability, so I’ll address a couple of possible interpretations.

  1. Will the doctor’s request mean that the paramedic can’t get a traffic infringement notice? Answer, ‘No’. As noted above that a treating doctor has requested an urgent response may mean that the paramedics and the service can have more confidence that they are required – more than when responding to a call from an untrained citizen who’s rung triple-zero, but that is only one factor to be considered.  The issue is about the nature of the driving; What rule the driver is seeking to ignore? What are the driving conditions? The requesting doctor knows none of those things.   A request for an urgent response means ‘as soon as you can safely get here’ but it can’t be a binding direction.
  2. Will the doctor’s request mean that the paramedic isn’t liable if there is an accident? No. The driver of the ambulance is the person responsible for how that ambulance is managed in traffic.  If there is a collision or if, at the end of the day, the police (or magistrate, or judge, or court of appeal or High Court of Australia) think that in the circumstances r 281 did not apply, then it is the driver who will pay the fine, or worse.
  3. Will the doctor’s request mean that the paramedic or ambulance service isn’t liable to pay damages to anyone injured in an accident? Again the answer is ‘no’. It is the driver who must take ‘reasonable care’ and no-one can relieve him or her of that obligation.  The paramedic is not the doctor’s servant acting under the doctor’s direction or control.

Conclusion

The status of the doctor’s request that an ambulance attend as a matter of urgency is just one factor to be taken into account in deciding, in any given case, whether or not response driving is justified and, if it is, whether the application of any particular rule should be waived.   The doctor’s request for an urgent response in no way relieves either the ambulance service, or the paramedic driver from the need to consider the particular circumstances and whether or not response driving is ‘reasonable’.


Categories: Researchers

Road traffic exemption – Who determines if it is reasonable that the provision should not apply?

21 May, 2016 - 15:57

A correspondent from WA asks for an opinion regarding the Road Traffic Code 2000 (WA) and, in particular, its application to the driver of an emergency ambulance.  Rule 281 says:

A provision of these regulations does not apply to the driver of an emergency vehicle that is not being used for official duties by a police officer if –

(a)  in the circumstances –

(i) the driver is taking reasonable care; and

(ii) it is reasonable that the provision should not apply;

and

(b)  the vehicle is a motor vehicle that is moving and the vehicle is displaying a blue or red flashing light or sounding an alarm.

My correspondent asks:

Who determines if it is reasonable that the provision should not apply?

For example: An ambulance crew is instructed to drive under emergency conditions – lights and sirens – from an ambulance station to a nearby hospital in order to transfer a patient to another hospital.  Under normal driving conditions this journey, from the ambulance station to the hospital, would take approximately three minutes.  The patient is in a medical facility being treated by doctors and nurses. Can claiming this exemption be considered reasonable particularly if the patient is not ready for immediate transportation.

On raising this scenario with my employer the feedback received was that if a Doctor instructs an ambulance to drive under emergency conditions this removes the liability from the driver of the ambulance. In your opinion is this interpretation by my employer correct?

I’m not sure what my correspondent means by ‘liability’; so I’ll address the first question – Who determines if it is reasonable that the provision should not apply?

The first ‘person’ who has to make that determination is the relevant service.  Each service must have a policy (stated or unstated) as to when a ‘response’ is required.  In the context of an ambulance service it might be ‘respond to every triple zero call’ or perhaps ‘response’ driving is only authorised to calls that have gone through some triage process and the coordinator has determined the urgency of the required response.    The policy may be general, requiring officers in each case to determine how the policy applies to the given job, or it may be specific where the response status is actually given by the ComCen or supervisor when the job is allocated.   Whatever the policy it will be the first benchmark.  If a traffic ticket (for example a speed camera ticket) is issued the service is likely to, or I would say should, ask the driver what was happening.  If the driver confirms that they were ‘responding’ to the job the service should consider whether that accorded with their policy and if it did, write to the police to have the infringement notice withdrawn.

The second, but beyond doubt the most important judge of whether ‘it is reasonable that the provision should not apply’ is the driver.  Regardless of the response policy, regardless of the direction from ComCen, regardless of the pressure from the other crew members, it is the driver who has to decide whether or not he or she should take advantage of the exemption.   If the driver is approaching red traffic lights and considers that he or she should not proceed, the he or she should stop, turn off the warning devices and wait for the green traffic light.  The driver is always responsible for the safety of the vehicle, the other crew members, other road users etc.  I shall return to this later.

The next person called upon to decide whether or not ‘it is reasonable that the provision should not apply’ is a police officer.   A police officer who sees an ambulance drive contrary to the road rules, or is reviewing the speed or traffic light camera photo must decide whether or not, in that officer’s view, the conduct was ‘reasonable’.  To make that decision he or she should consider any representations as to the service policy and training and the task that had been assigned, but ultimately it is their call.  If they think that the driver was not taking reasonable care or the rule that driver ignored should not have been ignored, then they will issue a Traffic Infringement Notice and further, would decline to withdraw it when asked to do so.

Anyone who receives a traffic infringement notice can pay it, or they can declare that they are not guilty of the offence and elect to have the matter dealt with by a court.  That applies to the driver of an ambulance too, so if the driver thinks that the police officer was wrong they can elect to have the matter determined by a court.    In that case the matter will be heard by a Magistrate.  The magistrate will hear from police as to why they think the conditions necessary for r 281 were not met, and then hear from the driver and, if he or she is supported by the ambulance service the magistrate would also hear from the service officers, as to why they think what the officer was doing was reasonable.  The magistrate will explain what he or she thinks are the relevant facts and legal considerations and will determine whether or not r 281 does provide a defence in that particular case.

If either party, the driver or the police, disagree with the Magistrate’s ruling on what the law requires they could appeal.  In most jurisdictions an appeal from a Magistrate goes to a single Supreme Court Judge.  If that occurred the Judge would have to determine whether or not, in the circumstances, r 281 did apply to give the driver a defence.

If one of the parties thinks that the judge got the law wrong they may appeal to the Court of Appeal in which case three judges will review the decisions of the lower courts and give a statement as to what factors should be considered when deciding whether or not a provision of the Road Traffic Code should be applied to the driver of an emergency service vehicle.

Finally, if there is still disagreement, and if the disgruntled party can convince the High Court of Australia that there is a real, complex issue of law, and that perhaps courts in different states are taking different approaches to what is meant to be a scheme of national road rules, then there could be an appeal to the High Court.  The judges of that court will give the final answer of what are the relevant considerations that a service or police officer has to consider when deciding whether ‘it is reasonable that [a] provision should not apply’.

It should be noted that appeals to a Court of Appeal or the High Court of Australia are incredibly unlikely.  The value of a traffic infringement notice means such a fight just isn’t worth it and the High Court is unlikely to be very interested in sitting as the 5 court to determine a road traffic matter.  So appeals to that level of court are unlikely, but they are theoretically possible.  Most people, of course, don’t take these matters further than asking the police to withdraw the traffic infringement notice, and if they refuse to do so, they just pay the fine.

Where does the caller, whether it’s a citizen who calls triple zero or a doctor fit into that list?  The answer is ‘they don’t; they don’t get to decide what response is required’.    This goes back to my first decision make, the relevant service. They should have a policy and it may be that they have a policy that a doctor can request an ambulance and if the doctor says the request is ‘urgent’ then the ambulance service will direct its officer to ‘respond’ with lights and sirens. But it’s the service, not the doctor that is making that decision.    If a doctor is travelling with the patient and paramedics and expresses the view that the urgent nature of the patient’s condition requires an expedited response, he or she can ask for that to happen, but the doctor cannot direct the driver as to how to drive or to ‘turn on the lights and sirens’.

Let me then turn to the scenario – is it ‘reasonable’ for an ambulance to rely on r 281 and use lights and sirens to require other vehicles to give way and perhaps travel contrary to the normal road rules to travel 3 minutes to a place where the person is already receiving medical care?  I can’t answer that (I’m not one of the people listed above) but I can have some thoughts on how police or a magistrate may answer it.  The first thing to consider is that the treating doctor, who is with the patient, has requested an urgent ambulance response.   That would certainly be a factor to consider.  Then one would want to consider the traffic conditions and the time of day, is ‘response’ driving really going to make a difference to the response time? It’s going to cause other drivers to take steps to get out of the way, it will increase the risk.  If you’re driving through a congested area that’s full of cars and pedestrians your claim that you did not need to honour the 40km/h speed limit may not be ‘reasonable’.  On the other hand, if it’s a 3-minute drive in normal conditions but normal conditions are on a road with an 80km/h speed limit, it may be quite reasonable to put the lights and sirens on and travel at 100km/h.

Let me now turn to the second question – “On raising this scenario with my employer the feedback received was that if a Doctor instructs an ambulance to drive under emergency conditions this removes the liability from the driver of the ambulance. In your opinion is this interpretation by my employer correct?”   As I said I’m not sure what they mean by liability, so I’ll address a couple of possible interpretations.

  1. Will the doctor’s request mean that the paramedic can’t get a traffic infringement notice? Answer, ‘No’. As noted above that a treating doctor has requested an urgent response may mean that the paramedics and the service can have more confidence that they are required – more than when responding to a call from an untrained citizen who’s rung triple-zero, but that is only one factor to be considered.  The issue is about the nature of the driving; What rule the driver is seeking to ignore? What are the driving conditions? The requesting doctor knows none of those things.   A request for an urgent response means ‘as soon as you can safely get here’ but it can’t be a binding direction.
  2. Will the doctor’s request mean that the paramedic isn’t liable if there is an accident? No. The driver of the ambulance is the person responsible for how that ambulance is managed in traffic.  If there is a collision or if, at the end of the day, the police (or magistrate, or judge, or court of appeal or High Court of Australia) think that in the circumstances r 281 did not apply, then it is the driver who will pay the fine, or worse.
  3. Will the doctor’s request mean that the paramedic or ambulance service isn’t liable to pay damages to anyone injured in an accident? Again the answer is ‘no’. It is the driver who must take ‘reasonable care’ and no-one can relieve him or her of that obligation.  The paramedic is not the doctor’s servant acting under the doctor’s direction or control.

Conclusion

The status of the doctor’s request that an ambulance attend as a matter of urgency is just one factor to be taken into account in deciding, in any given case, whether or not response driving is justified and, if it is, whether the application of any particular rule should be waived.   The doctor’s request for an urgent response in no way relieves either the ambulance service, or the paramedic driver from the need to consider the particular circumstances and whether or not response driving is ‘reasonable’.

 


Categories: Researchers

Rural Fire Service volunteer on trial for fatal collision

19 May, 2016 - 10:19

I have previously commented on the case of the RFS volunteers who has been charged following a fatal collision between an RFS appliance and another car (see Tragic outcome from RFS response (April 4, 2013)).   The trial has now commenced in the District Court of New South Wales; see:

Of course I make no comment on the merits of the prosecution or the Crown case, they will be matters for the jury but no doubt the outcome will be a matter of great interest to those in the emergency services.

A reminder that the decision of a jury in a criminal trial, whatever they decide, does not create a ‘precedent’.  Juries determine the facts of the case but do not make decisions on law.  The facts of each case are different so whether this jury finds the accused guilty, or not guilty, it will not be relevant to the next driver who is involved in a fatal collision.

No doubt there will be more to report on this case when the trial has concluded and the jurors have returned their verdict.


Categories: Researchers

Physiotherapy and first aid – some generic questions

15 May, 2016 - 17:57

I am a physiotherapist / first aider at Athletic events and I’d like to ask a few queries?

  1. Should a person be assessed prior to giving ice out? I think the answer is yes.
  2. Should we be keeping detailed notes for each person who presents not just the minimum? Again I think the answer is yes.
  3. How do we cover ourselves for verbal advice given, be it to follow up or to not compete? Write it and get them to sign and you sign and another witnesses? Normally you have two signatures but what if only one person is working?
  4. Do you recommend some good pro-forma for noting down findings/ assessment and treatment given?
  5. Last but certainly not least; should the AED be noted as to its location for each and every event? Currently it could be locked away, it could be at the warm up track or at the main stadium. It is of no fixed abode or easy to access or locate. I realise security for a $3000 piece of equipment is the underlying issue but I find it worrisome.
  6. Are the same laws applicable in NZ?

These questions are too specific to answer effectively here.  The answer in each case will depend on the circumstances in which the first aid is being provided,  the types of injuries that might arise etc.  This requires particular advice based on the particular circumstances rather than a discussion here.  In very general terms:

  1. I think I have previously answered this – see Don’t be bullied into inappropriate first aid treatment (November 14, 2015).
  2. This is a question of risk assessment. The more complex the issue the more detailed the notes but taking detailed notes takes time, they need to be stored and retrievable and what really is the risk?  In any event, see Completing paramedic case records (September 3, 2015) and First aid patient records – who and what are they for? (January 31, 2015).
  3. One should try to keep contemporaneous notes of the discussions and advice. Whether you can get the person to sign is an issue in each case.  Certainly ambulance services have forms for patients who decline treatment and they ask them to sign those forms, but of course the person doesn’t have to.  There is no ‘rule’ that you have to have multiple witnesses or indeed any.   Again consider what are the records for, and what is the risk.
  4. No I can’t recommend a particular ‘pro forma’.
  5. Again it’s a question of risk – who’s going to use it and what processes are in place to call for it? If people don’t know where the AED is or how to access it then there is no point having one.  There should be some way to get it, or summons it; but as for how that is managed at a  particular event or venue that again requires specific advice.
  6. No, the law in Australia is not the same as in New Zealand, in particular New Zealand has the Accident Compensation Commission which provides no fault personal injuries compensation. A person cannot sue another for negligently inflicted injuries so issues of negligence law are not directly applicable in that jurisdiction.

 

 


Categories: Researchers

Student doctors and scope of practice

15 May, 2016 - 16:47

I have previously written about how the law might view limitations on a registered health practitioner’s ability to treat people when they are working for a volunteer health organization.  See:

See also:

Those posts all deal with qualified health professionals – medical practitioners, nurses and paramedics – but what of students?  A first year medical student and a volunteer with St John (WA) can see the potential for role conflict and asks:

… a question about the responsibilities of student doctors who volunteer with St John Ambulance (WA) (“SJA”). All members are required to treat according to their SJA scope of practice and according to the clinical practice guidelines (CPGs) when with SJA.

My understanding is that in the case of doctors SJA cannot discharge them of their responsibility to a patient, and cannot prevent that responsibility from extending beyond what is covered by the CPGs. However, what of student doctors? Obviously the entire premise of being a student doctor is that one eventually becomes a doctor, and so may in some situations may have a greater understanding of a medical situation than can be covered in a CPG.

For example, consider a situation where a complex patient requires attention and the treatment prescribed by the CPGs differs from the ideal management in that case. Would it be permissible for student doctor to rely on the CPGs rather than forming an independent clinical judgement? Would it be permissible to disregard the CPGs in favour of an independent clinical judgement?

There are two types of situations where I see there might be a conflict:

  1. Acting expressly against the CPGs: One of our GPGs states that adrenaline auto-injectors “must not be used for treatment of asthma.” There is evidence, however, that adrenaline may be helpful in severe asthmatic cases. One could hypothesize that this requirement is in the CPGs to prevent overzealous use of adrenaline, a drug that requires caution. What is the student doctor, who has come to the decision that adrenaline would be appropriate for this patient, ought to do?
  2. Acting outside of scope: In addition to the CPGs, we have a skills matrix which outlines the skills that each clinical qualification has access to. For example, no volunteers are permitted to cannulate or administer IV fluids. The equipment is, however, sometimes stocked in our vehicles and kits. Would it be permissible for a student doctor who has been taught cannulation skills, faced with a severely dehydrated patient, to cannulate and begin IV fluids?

In each of these situations assume, for sake of argument, that there is no person better qualified (paramedic, doctor) immediately present, and that it is either inexpedient or impossible to call for clinical advice from an appropriately qualified health practitioner.

Further, if something went wrong in the course of such a treatment, who would be liable? Does St John remain vicariously liable? Many student doctors hold professional indemnity insurance which includes cover for Good Samaritan acts, would they need to rely on this?

This is the sort of question where the answer will depend entirely on the circumstances and, unhelpfully, on the outcome.   Assume at first instance that the student doctor does use an ‘adrenaline auto-injector’ or cannulates and administers IV fluid and in either case saves the patient’s life or at least improves the outcome.  Assume also that in a review the expert medical opinion is that what the student doctor did was entirely appropriate and represented best quality care in the circumstances.  That’s all well and good – even if SJA wanted to counsel the student they would have some difficulty in counselling someone for not following the rules but by so doing, advancing the patient’s best interests.  That’s the sort of conduct that gets a person labelled a ‘hero’ and is portrayed on TV shows (like ‘Chicago Fire’) as being virtuous and putting good practice and best interests above petty rules, but that doesn’t mean there won’t be repercussions.

There is another alternative here, and that that is where the student administers appropriate treatment using appropriate skill but there is still a poor outcome, for example the patient dies, but as a result of their injuries, that is the treatment although appropriate just wasn’t effective. Not everyone can be saved even with the best treatment.  That is not negligence so the legal issues would be the same as if the student does act and there is a good outcome

What if there is a bad outcome because of the student’s decision?  There are, again, two possible alternatives.  The first is that the treatment does improve the patient’s condition, or at least does not make it worse, but on review it is agreed that it was the wrong thing to do and the good outcome was the product of ‘sheer dumb luck’ rather than good practice.  The second alternative is that the patient suffers an adverse outcome, either because the treatment was not in fact called for or even if it was good treatment, it was poorly administered, eg the cannula misses a vein and instead sees the IV fluid pumped into muscle tissue.

The final scenario is where the medical student does not give the treatment he or she thinks is called for in circumstances where the equipment is available and the student believes that he or she would be competent to administer it.  Further, on review, it is found that the student was correct, the treatment was called for and would have, on balance, led to a better outcome for the patient.

We can summarise the scenarios that will be discussed as:

  1. The student does act and the action is appropriate and competent, regardless of the outcome;
  2. The student does act and there is a bad outcome because the action was either inappropriate or not competently delivered; and
  3. The student does not act and there is a bad outcome.

Scenario 1: The student does act and there is a good outcome;

The patient’s not going to sue if they suffered no harm or, better yet, got a better outcome but there could still be repercussions.  First adrenaline is a scheduled drug.  “ADRENALINE in preparations containing 1 per cent or less of adrenaline except in preparations containing 0.02 per cent or less of adrenaline’ is listed in Schedule 3 of the Poisons Standard 2009.  All other preparations of Adrenaline are listed in Schedule 4.

It is an offence for a person who is not authorised to supply scheduled drugs (poisons) – Poisons Act 1964 (WA) s 32(d).    A medical student is not a medical practitioner and we can infer that a student has no authority to supply a scheduled drug.  It follows that ‘supplying’ adrenaline may be an offence.

A student medical practitioner must be registered and is subject to disciplinary proceedings, that is a student can be disciplined or have his or her student registration cancelled if they engage in professional misconduct.  Professional misconduct means:

(a) unprofessional conduct by the practitioner that amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience; and

(b) more than one instance of unprofessional conduct that, when considered together, amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience; and

(c) conduct of the practitioner, whether occurring in connection with the practice of the health practitioner’s profession or not, that is inconsistent with the practitioner being a fit and proper person to hold registration in the profession.

A student doctor is not a doctor so acting contrary to guidelines which the person has agreed to follow and supplying a drug contrary to law might be unprofessional conduct.  On the other hand, administering a drug that is in fact required and in the client’s best interests, in circumstances where the student did not have the opportunity to seek guidance from a more experienced or qualified person and where the judgement was indeed correct, sounds like it is meeting the highest ideals of the profession.   Such action would also be justified by the common law doctrine of ‘necessity’ that justifies action that is, prima facie illegal, if on balance the (illegal) action taken is intended to prevent a serious harm and is proportionate to the harm avoided.  Giving a drug that a person is trained to use, in circumstances where it is warranted in order to save a life (not just because it is convenient or might be ‘nice’) and where the legal problem is a lack of licence, is likely to be accepted as ‘necessary’.

Getting it wrong of course, sounds like a failure to exercise proper judgment and action below that expected of other medical students.

This is how law, and lawyers work.  The lawyer for the Medical Board (if they were seeking to punish the student) would make the arguments in favour of a finding of unprofessional conduct.  The lawyer for the student would make the arguments in favour of the student.  How the disciplinary tribunal would see it would depend on all the circumstances surrounding the student’s knowledge, level of training, thought processes and ultimately what happened.  As I say the legal outcome will depend on the actual outcome, which makes it hard for anyone to predict what would happen.

Scenario 2: The student does act and there is a bad outcome

This has got to be negligence.

The first question is what is the standard of care of the ‘reasonable medical student’?  According to decision of the High Court of Australia in Rogers v Whitaker (1992) 175 CLR 479, [6] ‘The standard of reasonable care and skill required is that of the ordinary skilled person exercising and professing to have that special skill.’   A court may well think that a medical student who chooses to go against the CPG’s of the organisation that he or she volunteers for is holding him or herself out as have the skill of a medical practitioner in which case the standard he or she would be judged against is the standard of the ‘reasonable medical practitioner’ not the ‘reasonable medical student’.  (See also Imbree v McNeilly [2008] HCA 40 where the High Court said, in quite a different context, that the standard of care expected from a learner (driver) was that of a reasonable driver: ‘Knowledge of inexperience can thus provide no sufficient foundation for applying different standards of care…’[54]).

The reasonable doctor and even the reasonable medical student is not going to administer treatment that is not warranted by the patient’s condition or do so badly.

Scenario 3: The student does not act and there is a bad outcome.

This is the toughest case.  The patient, or his or her family, are likely to be aggrieved if they believe they, or their loved one, could have benefited from treatment that the student recognised they needed, had the means to administer, but chose not to deliver.  But what could their remedy be?

In the scenario painted by my correspondent they’ve come to the St John first aid post to be treated by St John first aiders.  My correspondent tells me that doctors have the word ‘Doctor’ on their uniform but there is nothing to identify a medical student.  A medical student is not a doctor.  Like a doctor they will have obligations to persons who come into their care but in a clinical placement that is a duty to act subject to supervision rather than entirely on their own initiative (though not doubt their power to exercise their initiative grows with their experience and standing).   There will always be a duty to act in the patient’s best interests but that is limited by the phrase ‘to the best of their ability’.    A medical student who is a volunteer with St John agrees to act in accordance with their clinical practice guidelines and can’t be under a duty to administer treatment that they are not generally authorised to administer on their own initiative.

On the other hand not all treatment requires authority.  Adrenaline may be a scheduled drugs, but there is no law on who can or cannot cannulate or administer non-scheduled IV fluids.  In this case the medical student is there, has the knowledge and the capacity to administer the treatment.  And let us assume the case is extreme and the patient dies but would have been saved if that treatment had been given. In that case the person had come to St John for care so St John owed them a duty of care.  The person administering the care knew what was required, knew they could give the treatment, had the resources to give that treatment in circumstances where the risk to the patient was catastrophic, they could take no further action to protect themselves but the person who was providing the care could take appropriate action.  In the circumstances it would be reasonably easy to argue that the failure to give that treatment was negligent.

St John doesn’t really have the capability to assess each person’s skills, rather it might accept that a ‘doctor’ has certain skills that a first aider does not, but medical students range from those in their first week of study to those in their last week.  Trying to work out when they acquire particular skills seems impracticable.  And a policy that says ‘administer treatment you think you are competent in’ is hardly reasonable as that would invite people to say ‘well I looked it up on Google and thought I could do it’.  So it would also be possible to argue that a policy banning everyone other than a registered nurse, doctor or paramedic (when they are registered) from performing certain treatments is quite a reasonable response to the various risks that could occur with untrained people applying treatment.

There may be cases where it is appropriate for a medical student to go beyond first aid, a senior student, in a remote area who can cannulate a patient who will otherwise dehydrate is in a different position to a student at a first aid post in an urban centre with an ambulance 10 minutes away.    Even in that urban environment there are things that a medical student can and should do that perhaps a first aider may not.  The medical student may well recognise that a case is more complex than others and so may be the one who says ‘we need to call an ambulance for this person’ when first aiders may think the person can be treated in the first aid post.  The medical student who gives the handover to paramedics as he or she is able to explain the circumstances and the signs and symptoms that cause them to suspect that certain treatments are required.

As always the answer to what should the student do will come down to what is ‘reasonable’.  What’s going to happen with no action?  What could happen if the action is wrong?  What alternatives are there?  Would waiting for an ambulance make a critical difference (it might in remote WA, less likely in urban Perth) etc.  How experienced is the student? How certain are they of their diagnosis, prognosis and treatment decision?  A medical student would, I suggest, want to be very sure that the decision they were going to make was necessary to save the patient’s life, not just convenient or even optimal.  It should not be ‘but this is what we’d do in hospital’ because he or she is not in a hospital.

Who would be liable

The person who comes to a St John first aid post is looking for help from St John Ambulance, not from the particular members on duty.  St John is representing by its corporate badging, both on the post and on the members’ uniforms that they are St John.  If the members are negligent then it would be St John that would be liable for the sub-standard care that the patient receives at the hands of ‘St John’.  They would be entitled to seek any remedy from St John.

St John would not normally seek recompense from its volunteers partly because they couldn’t afford it and St John, like any organisation that depends on volunteers, must realise that to do so would mean that tomorrow there would be no volunteers.  Where the volunteer does carry private insurance however, the St John insurer (rather than St John) may well take a economic view that it would like to shift its losses to the other insurer so that might happen. The presence of insurance will no doubt increase the chances of being sued (see Insurance for first aiders (August 13, 2014)).

I presume personal indemnity insurance for medical students is a condition of their student registration.  Insurers would extend that to ‘good Samaritan’ acts because it sounds good whilst being virtually no risk.  To be a good Samaritan however is to provide emergency care without expectation of fee or reward.  I have argued elsewhere that I don’t think those Acts are intended to apply to members of an organisation like St John who are in uniform, holding themselves out as experts in first aid and where both St John and the members do get a reward for their service (see Who to treat? A question for St John first aiders (June 30, 2013)).  The more interesting question would be whether or not the insurance medical students have does actually apply if they are volunteering for a service like St John.  I imagine it would but one would need to see the exact terms of the policy.

Conclusion

In earlier posts I’ve discussed restrictions on medical practitioners, nurses and paramedics.  I have argued that those professionals should not be restrained from providing care that they know is required, they are trained to provide and where they have the resource available.  To do so would be to fail to act in the patient’s best interests and fail to allow that professional to meet his or her professional obligations.  If the agency insists that a health professional does not provide care to the best of his or her ability, consistently with their professional standards and the expectations of their peers, then the health professional should reconsider their volunteering.  In all those discussions I was working on the premise that the care the health professional wanted to provide was warranted and was delivered with proper professional competence.

This discussion raised a new issue – the student health professional.  There were 3 scenarios raised:

  1. The student does act and the action is appropriate and competent, regardless of the outcome;
  2. The student does act and there is a bad outcome because the action was either inappropriate or not competently delivered; and
  3. The student does not act and there is a bad outcome.

In each case there could be legal consequences for the student.   The critical issue is that although a medical student may have knowledge and skills, a medical student is not a medical practitioner.  They will still owe duties to those that come into their care consistent with the professional expectations of their peers, but that is still to be a student, not a doctor.

One cannot give a definitive answer.  As noted at the start, this is the sort of question where the answer will depend entirely on the circumstances and, unhelpfully, on the outcome.   A medical student, like any St John first aider or doctor, has to ask, fundamentally ‘what can I do that is in this patient’s best interests?’   If they genuinely believe the patient will die or suffer serious and permanent complications without their intervention and they feel competent to perform that intervention and are sure that it is required, then I think anyone would expect them to act.  Refusing to act because ‘St John says I can’t but I know what to do and know that the person will die if I don’t’ (and they do in fact die) is never going to go down well, but most courts would accept ‘I applied my advanced knowledge, I knew the circumstances were dire and this was the best and only option’ and if that is confirmed by post-event opinion, then that is likely to be accepted as both reasonable and justified – certainly if the patient survives but even if they do not.

If, on the other hand, the thought process is ‘well the optimal treatment that we’ve talked about in class is ‘x’, but we don’t do that here, but I could because it would be ‘nice’; or I could wait for an ambulance which is nearby and it won’t really make any difference to the outcome’ then I think no-one would expect the medical student to act.  Between those two extremes are an infinite number of variables.


Categories: Researchers

Speaking out on social media

9 May, 2016 - 19:55

A correspondent has drawn my attention to a program introduced on Radio National’s ‘Breakfast’ on 6 May (http://www.abc.net.au/radionational/programs/breakfast/background-briefing:-silencing-public-servants/7389700) and then broadcast on ‘Background Briefing’ (May 8 and May 10).   I haven’t listened to the full program but I have read the cases that they were discussing, that is Gaynor v Chief of the Defence Force (No 3) [2015] FCA 1370 and Starr v Department of Human Services [2016] FWC 1460.    In both cases the applicants (Gaynor and Starr, respectively) were dismissed from their jobs because of comments that they made on social media in their private capacities but in both cases when it was clear, and admitted that, in Gaynor’s case he was a member of the Australian Army Reserve and formally a full time soldier, and in Starr’s case that he was an employee of Centrelink.   In both cases the tribunal (the Federal Court and the Fair Work Commission respectively) determined that the termination of employment was not appropriate.

The reason this has been brought to my attention was to ask whether it had implications for emergency service volunteers, ie members of a uniformed organisation who might take to social media to make comments both about matters of social interest generally, or issues relating to their service in particular.  (For related discussions see

Linking these decisions with volunteers and their rights isn’t obvious.  The difference is that these people were employees and there really is a difference between employees and volunteers but there will be some relevant overlap.

Gaynor v Chief of the Defence Force (No 3) [2015] FCA 1370

Major Gaynor was a decorated army officer who had served in Iraq and Afghanistan.  He had transferred to the Army Reserve and been promoted to the rank of Major.  He embarked on a short lived political career nominating as a candidate for ‘Katter’s Australian Party’.   On a variety of social media sites (Facebook, Twitter, websites etc) he made comments where he was critical of the ADF’s moves to effect cultural change by inter alia, opening combat positions to women and allowing ADF members to march in uniform in the Sydney Gay and Lesbian Mardi Gras parade.  He expressed views that criticised both defence and the Australian government policies in Afghanistan and to allowing Muslim believers to enter Australia.     In those posts it was apparent that he remained a member of the ADF but in a reserve, rather than full time capacity.

Without going into all the details (of a 125-page judgment) Buchanan J found (at [277]):

…  the applicant’s commission was, in substance, terminated for two reasons.  The first was that he made public comments critical of the ADF while a member of the ADF.  Those comments were in contravention of Defence instructions but much more important to their assessment was their tone and content, which was viewed within the ADF, and by CDF, as wholly unacceptable.  The second reason was the applicant’s defiance of direct orders by his superiors, a circumstance which is anathema in military service.

This all occurred at the time of various scandals within the ADF and the then CDF’s famous speech on ‘the standard you walk past is the standard you accept’.  In dealing with the matter the CDF told Major Gaynor ([145]) that he, the CDF:

… was less interested in whether any “technical” breach of specific instructions had occurred and would place greater weight on whether the public comments revealed inappropriate attitudes and intolerance contrary to current ADF policies and demonstrated an irreconcilable conflict.

The beliefs expressed by Major Gaynor were, in the CDF’s view, incompatible with continued service in the ADF.

Major Gaynor challenged the decision to terminate his commission on many grounds to do with procedural fairness and the ability of the Army to issue orders that applied when he was not on duty and not in uniform.  The court rejected all of those grounds.  The court accepted however that service in the ADF did not deny a citizen the right to hold, and express, political views.   The Australian Constitution established a representative democracy so to allow that to function people have to be able to express their political views.   His Honour traced the case law on the implied freedom of political communication and said that there were three questions to be answered (see [240]).  They are:

  1. Does the law effectively burden the freedom of communication?
  2. If “yes”, are the purpose of the law and the means adopted to achieve that purpose legitimate, in the sense that they are compatible with the … system of representative government?
  3. If “yes” to question 2, is the law reasonably appropriate and adapted to advance that legitimate object? This question involves a “proportionality test” to determine whether the restriction on freed political speech is justified.

Major Gaynor was terminated for the expression of views on matters of politics, at [248] Buchanan J said:

The subject matter of the applicant’s comments are ones upon which many people may differ for reasons of religion, morality, social conscience or practical politics.  I do not accept the suggestion … that some matters fell outside the field of political discourse.  They cannot be seen as falling outside, or even at the fringe of, political discourse.  The better view, it seems to me, is that they were all within that field of discourse, even when directed at personal insult or condemnation…  Even in that case, it appears to me that the applicant was attempting to make a public statement of a political kind.

So the termination, or the attempt to direct Major Gaynor to refrain from making such statements, was a burden on the freedom of political communication.  The need to maintain discipline within the ADF meant that the action of the CDF was to achieve a legitimate purpose but it was not, in his honour’s view a proportionate response.  At [285], [287] and [289] he said:

In my view, the burden on the exercise by the applicant of his freedom of political communication was considerable …  I cannot accept that the right to exercise that freedom was lost only because the applicant remained a member of the ADF  …

Membership of the ADF, while on service in one form or another, undoubtedly carries with it obligations of obedience to lawful commands, and all the rigour and restrictions of military service but it does not seem to me that it extinguishes either freedom of belief or, while free from military discipline, freedom of expression.  It may be the case that members of a full time regular service are rarely (if ever) free to publicly express opinions against the policies of the ADF or the decisions of their superiors but the same cannot always be said about members of Reserves.  Such persons are often not on duty.  They are private citizens, in substance, when not on duty and not in uniform… In my view, their freedom of political communication cannot be burdened at those times…

I conclude that the applicant’s commission was terminated because of the publication of his private views about political matters.  The fact that those publications were at variance with ADF or government policy, or were in terms of which some may strongly disapprove, or were critical of ADF policies or instructions, does not appear to me to be sufficiently connected with any legitimate legislative aim to displace the freedom of political communication implied in the Constitution.

The ADF has appealed this decision (Chief of the Defence Force v Gaynor [2016] FCA 311).

Starr v Department of Human Services [2016] FWC 1460

Mr Starr was an employee of the Department of Human Services (Centrelink) and had been for over 21 years.  He also engaged in discussion over many years on social media using a pseudonym.  On some of those discussions issues of Centrelink and government policy and action had been discussed and he had joined in those discussions, at time admitting that he was an employee of Centrelink.  Various criticisms of Centrelink and the government came to the attention of superior officers and his employment was terminated on the basis that his actions were contrary to the Public Service Code of Conduct and specific social media policies.   Some of his comments were particularly inappropriate, referring to Centrelink clients as ‘spastics and junkies’.

Mr Starr, having had the various policies brought to his attention admitted that his conduct did constitute valid grounds for dismissal but he sought a ruling that the dismissal was ‘unfair’.   Vice President Hatcher in the Fair Work Commission agreed. Many of the grounds for termination could not be justified, in particular one complaint was that he was bringing the social media team into disrepute when he kept pointing out that the information they were providing was indeed wrong.  It could hardly be grounds for dismissal if Centrelink was putting out information that they must have wanted people to know, but it was in fact and in law, wrong so another member sought to correct it!

The decision to dismiss failed to take into account Mr Starr’s many years of excellent service, there was no evidence that his criticism of Centerlink or its clients in any way affected his work or the way he dealt with clients which had been exemplary, he had taken steps to remove the offensive posts, there was no evidence that he intended to damage the reputation of Centrelink (the allegation that his use of a pseudonym was evidence of his knowledge and intention was rejected as he’d been using that for many years before any of the comments that were the subject of the complaint).

Discussion

So what’s the implication for volunteers who want to put comments on social media?  Like Major Gaynor volunteers agree to be part of an organisation and are subject to its discipline and authority (albeit not to the same extent a soldier is).   Like Major Gaynor’s reserve service, that membership is ‘part time’ and when members are off duty and out of uniform they retain the right to hold and express political views.    It is essential in a democracy that people are able to express them so people are free to express their views even if they are critical of the service to which they belong and even if it is apparent that they are members of the relevant service but not perhaps if they ‘tie’ their comments to that service or make those comments when serving.  A person who is identified as a member of the RFS could make comments on his or her web page, but not to the media on the fire ground when part of a strike force.

The most obvious exemplar is of course the former Prime Minister and still serving Member of the House of Representatives, Tony Abott.  He is a well-known member of the RFS and also, clearly political. But I’ve never seen him attempt to link the two even when news media took photos of him in his RFS uniform.  I don’t suppose he was overtly critical of the RFS when he was Prime Minister but even so he was clearly expressing political views and was a known member of the RFS.  The RFS couldn’t do anything to stop him on the basis that he was somehow linked to the RFS, but it might well have done so if, say, during an election he was seen wearing his RFS uniform to the polling place or when giving a political speech.

As for Starr’s case, that doesn’t say much given Mr Starr did admit his action did give grounds for dismissal.   Further the court noted that governments have more control over public servants than perhaps other employers.  Volunteers with the emergency services are not public servants even if they do volunteer for government agencies, but one can still imagine that a career in the RFS may be short lived if a volunteer were to get online after a fire and be critical of home owners that stayed to defend and used pejorative terms to describe them.

Finally employees really do have more rights than volunteers.  The law is concerned, perhaps over concerned, with economic interests and employment and the associated payment of a salary is important.  Volunteers can’t go to the Fair Work Commission and may have limited chances of a remedy if their volunteer service is terminated (see Natural Justice and the SES (September 28, 2015)).  If you volunteer to join an organisation and you don’t like its management or its policies, you’re free to stop volunteering in a way that an employee is not so free to stop working there.   It means the decision to terminate a volunteer’s service may not need quite the same balance as the decision to terminate a person’s employment and all that comes with having a job and an income.

Conclusion

One can’t really draw too much from these cases to volunteers.  I have no specific case where a volunteer has been disciplined for speaking out on social media with which to draw parallels.  The inference is that just because one is a member of an emergency service one retains the right to have political views and take part in the political process.  What is permissible, as in so many cases, is really a question of context and proportion.  Expressing views, even critical views, is ok but deliberately doing that whilst subject to the discipline of the service, ie when in uniform and on duty, is not.  The problem in Gaynor’s case was that the real issue for the ADF was that he was a member of the ADF, not that he did what he did when in uniform and on duty.  That was not enough for the court.  One might expect a similar result for a volunteer.

I don’t think that is inconsistent with my discussion in Political discussion on a NSW RFS closed Facebook Group (April 14, 2016).  In that case membership of the group was intended to be for RFS members so by virtue of being in that group one was, in effect, putting on the uniform, and therefore subject to the RFS service standards.

The issue for Starr’s case was the failure to properly balance the mitigating factors.  It says little about what can be said, but I suppose a volunteer with 21 years exemplary service might not expect to be terminated if he or she says something to the detriment of the service but which, on balance, is better dealt with by alternative means.  The volunteer, however, can’t go to the Fair Work Commission to have the issue tested.

 

 

 

 

 

 

 


Categories: Researchers

‘Establishment of a national registration system for Australian paramedics to improve and ensure patient and community safety’

9 May, 2016 - 17:03

The Senate has been dissolved to allow for the forthcoming federal election.  As part of the finalisation of Senate business, the Constitutional and Legal Affairs Committee handed down it’s report into the ‘Establishment of a national registration system for Australian paramedics to improve and ensure patient and community safety’.  The committee recommended:

  1. That the paramedic profession be nationally registered and accredited throughout Australia, and that such a scheme give consideration to ‘grandparenting’ arrangements for current paramedics, while ensuring that they meet the agreed professional standards.
  2. The establishment of a paramedic board, operating in conjunction with the National Registration and Accreditation Scheme (NRAS) and administered by the Australian Health Practitioner Regulation Agency (AHPRA); and.
  3. That all Australian states and territories participate in a national registration and accreditation system for paramedics.

That is, they recommended that the paramedic profession join the other 14 registered health professionals which will bring such things as protection of title, transferable qualifications and the ability of the profession to determine standards of practice through the yet to be established Paramedic Board.

The recommendations of the Committee are not binding, and it has already been noted that the Council of Australian Governments had also recommended national registration (see National Registration for Paramedics – or perhaps not (November 6, 2015)).  The important aspect of this recommendation is that it will bring pressure onto NSW, which is the only state currently resisting national registration, to join the scheme and make it truly national.   Whether that will happen remains to be seen.

You can download the final report here.


Categories: Researchers

Allowing wildfires to burn to enjoy a hazard reduction benefit

9 May, 2016 - 12:08

This is a complex question from NSW

I have a question about when brigades attend a grass or bush fire, they are to deal with that fire to mitigate fire activity. So I pose this scenario as the legalities.

A RFS brigade is responded to a fire and the fire is in a safe assessable area where the brigade can extinguish the fire and the emergency is over. They request permission from the paid duty officer to extend the fire to ‘tidy up the fire’, making it larger and possible environmental damage and do so.

The question is if permission is sought from the duty officer to extend the fire, to take out an area to reduce further future fire activity, would it be

1)         A permissible action by the duty officer to give permission to extend the fire and would it be legal?

2)         Be an illegal hazard reduction, due to the emergency not existing, that brigades are in attendance with no threat to people and property?

3)         Does the brigade officer have authority under the act to complete these extensions to the fire without authority of the duty officer?

4)         Should the Environment Protection Act also be encompassed in some sort of decision making process as to actually increasing the size of the fire?

I pose these questions as paid staff have made comment about extending fire as being illegal hazard reductions.

I’ll rephrase that question to make clear what I understand it is about as that will also make clear what questions I’m answering. What I infer from this is that in some circumstances the RFS will turn out to a bushfire and, rather than extinguish it, they’ll allow it to burn perhaps even adding ignition points, in order to take advantage of the unplanned fire to gain a hazard reduction benefit.  The question is, ‘is that legal?’

It is well understood that conducting a hazard reduction burn takes significant planning to ensure that firefighting resources in place to minimize the risk of escape, that the weather is favourable both to control the burn and to limit the risk to others from smoke and fire, that appropriate notices are served, that consideration is given to potential damage to the environment including important environmental assets such as habitats and water courses.   An unplanned fire, by definition, occurs but even so it can have a hazard reduction benefit by reducing fuel loads.   There is a concern that taking steps to fight every fire does lead to a build-up of fuel and creates a risk for later mega-fires.

Turning then to the questions and assumptions, above. The first thing to note is that the Rural Fires Act 1997 (NSW) does not say that the RFS is required to extinguish every fire it goes to.  One of the functions of the Rural Fire Service is to ‘provide rural fire services’ (s 9(1)). Rural Fire Services include ‘services for the prevention, mitigation and suppression of fires in rural fire districts’ (s 9(4)).   Supressing fires is a function of the RFS but not surprisingly the Act doesn’t say that they have to supress all fires, because if it did it would be setting them up to fail – they simply can’t extinguish all fires.   Services for ‘mitigation’ is also a function of the RFS and this covers hazard mitigation work (see Rural Fires Act 1997 (NSW) Part 4).

For bushfire hazard reduction work there generally needs to be in place a bushfire hazard reduction certificate (s 100D).  Further “Part 5 of the Environmental Planning and Assessment Act 1979 does not apply to or in respect of managed bush fire hazard reduction work carried out on land other than excluded land if: (a) the work is carried out in accordance with a bush fire risk management plan that applies to the land… (s 100C).   Further:

(1) Before a certifying authority carries out any bush fire hazard reduction work on land, the certifying authority must certify:

(a) that a bush fire risk management plan applies to the land, and

(b) that the certifying authority has taken into consideration the provisions of any bush fire code applying to the land and determined which of them should be complied with in carrying out the work and whether any conditions should be imposed having regard to any provisions of that code, and

(c) if the certifying authority is a local authority or a public authority, that the notice will be given to the fire control officer for the district in which the land is situated before the work is carried out and to any other person prescribed by the regulations.

The “certifying authority” for fire hazard reduction work to be carried out by the RFS is the Commissioner of the RFS (s 100E(2)).

It stands to reason that, except in the most bizarre set of circumstances, where there is an unplanned fire it will not be burning in accordance with the terms of any certificate or bushfire risk management plan, nor has the Commissioner of the Rural Fire Service taken into account the terms of any bush fire code applying to that land.

There are provisions that require that a person seeking to conduct a hazard reduction burn must have an appropriate bush fire hazard reduction certificate and must also give notice of the fire (s 86). During a declared bush fire danger period the person must also have a fire permit (s 87).  Neither s 86 nor 87 apply to the Rural Fire Service if it is lighting a fire for the purposes of ‘back burning’ (ss 86(2) and 87(2)).  Back burning “means the application of fire to combustible matter so as to provide a fire break to control or suppress a fire or protect persons, property or the environment from an existing or imminent danger arising out of a fire, incident or other emergency” (s 4).

Discussion

Hazard reduction burns are dangerous.  Because of that there are extensive provisions in place regarding the development of plans and the issue of notices.  The complexity involved in their planning means that often areas that are the subject of a planned burn cannot be burned for a long time (see for example, the discussion in Southern Properties (WA) Pty Ltd v Executive Director of the Department of Conservation And Land Management [2012] WASCA 79 discussed in No liability for damage to grapes caused by WA hazard reduction burn (April 25, 2012)).   Taking advantage of a naturally occurring wildfire to obtain a hazard reduction benefit, without going through all that planning process must be an attractive option but it still carries risks to people, the property and the environment.

In my view the legality of the situation will really turn on the difference between ‘action’ and ‘omission’ and what is intended.   If the fire is simply allowed to burn, that can’t be an unlawful action as the RFS didn’t light the fire and they aren’t under an obligation to extinguish every fire.  This is an ‘act of omission’, in this case the RFS are simply doing nothing.    An authority is only liable for an act of omission if there was some legal duty to do something, and as noted the RFS Act doesn’t say that the RFS has to extinguish all fires and the common law has also found no duty to take positive action (see Liability for fire – a review of earlier posts (January 8, 2016)).  Merely allowing the fire to burn without regard to risks to others could well be negligent because of the unique position of the RFS as the control authority, the limited ability of people to step in and fight the fire if the RFS won’t and the RFS knowledge of the risks.  The RFS would have to think about the risk to lives, property, and the environment so there could be negligence if they simply allowed a fire to burn but I can’t see that it would be contrary to the legislation surrounding hazard reduction burns.

If the RFS adds to the fire that is by setting fire to fuel around the fire, that is take positive steps with the effect of ‘actually increasing the size of the fire’ that would seem to be a breach.   If they are setting fires for the purposes of hazard reduction they need to comply with all the relevant provisions, the mere fact that there is already a fire burning there does not change the obligation to plan for a hazard reduction burn.  There may be limited liability for failing to extinguish a fire, but liability for the escape of a fire that is deliberately lit is quite strict (see Burnie Port Authority v General Jones (1994) 179 CLR 520).   It follows that if the intention is to simply by pass the normal planning processes to take advantage of a naturally occurring wildfire by adding to that fire by further ignition, that would be inconsistent with the Rural Fires Act and the need for planning for hazard reduction burns.

If, on the other hand, the intention behind lighting the further fires is to back burn, that is to use fire to ‘control or suppress a fire or protect persons, property or the environment from an existing or imminent danger arising out of a fire’ that is permissible.  The RFS then may set a defensive line at a convenient place and set fires there to stop the fire, and allow the fire to burn to that point with the added bonus that fuel hazards that in less benign conditions may cause a threat, are removed.

The question would really be one of ‘intent’; and that is actual motivation, not just claimed motivation.  Merely saying ‘it’s a back burn’ won’t determine the matter.  Further, ‘pretending’ to set a ‘back burn’ when really intending to take advantage of a hazard reduction opportunity is hardly acting ‘in good faith’ (s 128). To act in good faith is to act honestly.  If one honestly believes that the appropriate response to a fire is a ‘back burn’ and to allow the fire to burn to the area then that’s fine. If one honestly believes that the normal or routine response to the fire would be to take some other action, but if it’s allowed to burn there’s a hazard reduction benefit so a fire will be lit with the real motive of clearing fuel but with the stated motive of a ‘back burn’ that is not honest, and therefore not ‘in good faith’.

Conclusion

Without answering the specific questions asked, it is my view that where a fire is burning, an honest decision to set further ignition as a legitimate back burn, to control the fire, is lawful even if other firefighting options are also available.    Equally allowing the fire to burn rather than putting fire fighters ‘in harm’s way’ can be a legitimate decision.

A decision to set further fires simply to make the fire bigger and take advantage of the fire as a means of unplanned hazard reduction would be contrary to the provisions of the RFS Act.  It is unlawful to conduct hazard reduction burns without complying with the RFS Act and the presence of a naturally occurring fire in the area won’t change that.

A decision to simply let a fire burn, provided due consideration is given to protecting persons and property could well be lawful as it is up to the RFS to determine how it responds to fires.  If the fire did escape and cause damage to private property, a person may well be able to sue the RFS if it can be shown that the decisions were made were not a legitimate decision on how to approach the fire taking into account risk and benefit – that is if the decision to let the fire burn was so unreasonable that no fire authority would think it was a legitimate exercise of the discretion vested in the RFS (see Associated Provincial Picture Houses Limited v Wednesbury Corporation [1948] 1 KB 223 discussed in A Question on the ACT Emergency Services Authority Volunteer Charter (April 14, 2016)).


Categories: Researchers

Mean what you say; and say what you mean

8 May, 2016 - 14:04

 

This is a general question from a CFA volunteer but the answers must be applicable across all services.  It is a very general question so it will have a very general answer:

The local CFA brigade is having a few issues with crews turning out without the correctly trained members. For example, the trucks have turned out without properly trained or qualified Crew Leaders or inadequate personnel numbers.  Other members, especially higher ranking members are not seeing any issue with their actions and are dismissing any questions or concerns raised. Whilst these are clear breaches of the CFA’s policies, at what stage could these actions or decisions have legal implications for either the CFA as a whole, the local brigade or the members who made those decisions?

At what stage could these actions or decisions have legal implications?  Well that really depends upon what happens.  Imagine if a fire fighter is killed taking action in the absence of a ‘properly trained or qualified Crew Leader’ – then the question will be would a Crew Leader’s attendance have made a difference and if so why did the crew and the CFA allow the crew to turn out without the appropriate leader.

On the other hand, imagine a crew stand around and let someone die because there was no ‘properly trained or qualified Crew Leader’ present even though the task was easy and they felt and probably were quite competent to attend to it.  It will not be comfortable to say ‘we let someone die because we had to comply with a rule we didn’t think was relevant in the context’.   It is also uncomfortable, but justifiable, to say ‘we let someone die because the risk to our crew was too great’.   For further discussion in particular of the coroner’s response when Scottish firefighters failed to rescue a woman trapped in a disused coal mine in order to comply with the fire services’ standing orders and procedures, see:

The problem is that whilst an answer may be justifiable in law, it is harder to justify to the media.  The media like to promote fire fighters as ‘heroes’ and rushing in contrary to policy and in the face of danger not only accords with the hero myth, it’s the sort of thing TV responders do all the time so people get rewarded for that sort of action; but are unlikely to get rewarded for taking a cautious approach and saying ‘this was not our emergency, so we stood by until we had the resources we needed to do the job with due regard to our safety, even though that increased the risk to others’.

Further, the media would enjoy it even more if firefighters were willing to say ‘we could have saved the person but were hamstrung by WHS red tape’.  That statement is easy to make at the time because then the person speaking knows the ‘victim’ has died and can believe that had the responders been allowed to act they would have successfully rescued the victim.  That is of course a matter of pure fiction; one can’t have any idea what would have happened and whether or not compliance with the procedures just saved 3 fire fighters that would in fact have died had they attempted to act.  But ‘fire fighters act in accordance with policy and all go home; but couldn’t save innocent victim’ is not a good story.  Fire fighters die trying to be heroes is, I’m afraid, a fantastic story.  And ‘fire fighters die trying to be heroes but are unsupported by heartless central command that didn’t back them up with sufficient resources so that they turned out improperly crewed’ is an even better story.

So what’s the legal answer?  As with everything it comes down to ‘risk assessment’.  At the broad level, we might assume (hope? Trust?) that a risk assessment was done when the relevant policies were written to determine when a crew is ready to turn out, so that includes minimum staffing levels both in numbers and qualifications.   If that’s been done then the policy should say what the CFA intends, and if that is that a crew must not turn out, then say it, and mean it.   It might, on the other hand, mean a crew must not engage in active firefighting but it may be OK to turn out to start a reconnaissance and wait for more fire fighters before actually attacking the fire.   Perhaps there is a discretion in senior officers or ComCen to allow a crew to respond provided there is some review of what tasks they may or may not do.   That too should be in the policy.

The risk assessment, whether it’s at crew, region or state level has to answer ‘what do we do for a fire call if we don’t get sufficient numbers or sufficient numbers of relevantly qualified people?’ and in the cold calm of a non-emergency actually determine what the response to that will be.    And then put that in the policy and then apply the policy – say what you mean; and mean what you say.    That’s not going to deny there will be unpleasant questions when inevitable consequences occur, eg response times are delayed whilst there is a wait for sufficient crew numbers or, a crew at a scene does in fact not take action even if they think they could, but if the policy is well thought out and justifiable, then there will be answers for those unpleasant questions.


Categories: Researchers