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Discussion on the law that applies to or affects Australia's emergency services and emergency management, by Michael Eburn, PhD, Australian Lawyer. Email: meburn@australianemergencylaw.com
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Paying for Commonwealth assistance

4 January, 2020 - 11:15

This question was received as a comment to the post What is a ‘national emergency’? (December 25, 2019) but I thought it deserved a post in its own right.  The question is:

Under the existing arrangement where states declare the emergency situations, who pays for what? Are all federal provisions free? The reason I ask is that I’m a student of an emerging new economic school of thought known as modern monetary economics. An outcome of this economics is that it identifies that currency issuing governments, so our federal govt, can essentially afford anything that’s for sale in its currency, so Australian dollars. State governments however are still constrained by the normal having to get dollars and not spending more than they get. So I wonder if both NSW and Vic are at the moment going as hard as they can or do they have some fear of the costs. In a modern monetary economic world, being able to declare a national state of emergency would/should trigger the supply of money and resources to the states to fight these things that is far greater than any state would currently be game to attempt now, lest it runs up a big loan to the banks and is stuck with interest burden as well.

There are two relevant answers to that question. The first relates to the Disaster Recovery Funding Arrangements (formerly the Natural Disaster Relief and Recovery Arrangements (NDRRA)) and the second to the direct delivery of commonwealth support, such as military support as part of the response and recovery arrangements.

Disaster Recovery Funding Arrangements

Each jurisdiction has two thresholds (Department of Home Affairs, Disaster Recovery Funding Arrangements 2018 (Commonwealth of Australia, 5 June 2018; p. 12):

The first threshold is 0.225 per cent of the state’s total general government sector revenue and grants in the financial year two years prior to the relevant financial year; and the second threshold is 1.75 times the state’s first threshold.

Where expenditure on eligible relief and recovery assistance measures exceeds the first threshold, but is less than the second threshold, the Commonwealth reimburses 50% of that expenditure.  Once the expenditure reaches the second threshold the Commonwealth reimburses 75% of the expenditure over that threshold.

To trigger the Disaster Recovery Arrangements the jurisdictions do declare that an event is a ‘natural disaster’.  Paragraph [5.1] says:

When a natural disaster occurs and the relevant state knows, or expects, the natural disaster to be an eligible disaster the state must notify the department of that fact within three (3) months.

A declaration that an event is a ‘natural disaster’ for the purpose of the Disaster Recovery Arrangements is unrelated to a declaration of emergency or disaster.

Commonwealth physical assistance

The second answer relates to the delivery of commonwealth assistance eg the use of Australian Defence Force resources.  Providing direct commonwealth assistance is managed under the Commonwealth Disaster Response Plan (COMDISPLAN).  That plan says:

4.1.1    The Australian Government does not normally seek financial reimbursement from jurisdictions for assistance provided under COMDISPLAN. However, when Australian Government assistance is provided for tasks not directly related to the safety of life and property or that could be handled by jurisdiction resources (e.g. clean-up teams) the Australian Government may seek reimbursement from the affected jurisdiction.

4.1.2.   Unless the Task Request to the agency clearly states that costs are recoverable, costs incurred to fulfil the request will be absorbed by that agency…

Assistance by the Australian Defence Force is governed by the Defence Assistance to the Civil Community Manual (First ed, 2012).  (The manual is not restricted. I obtained a copy of the manual via an FOI request in 2016.  I can find no reference to suggest that there is an updated version but, equally, I cannot confirm that this is the latest issue.  In any event I have uploaded a copy of the DACC Manual, as amended to 17 April 2015, here – DACC Manual).  Paragraph [1.11] says that defence assistance to the civil community (DACC):

… is divided into two classes, emergency and non-emergency, and comprises six categories as follows:

a. Emergency Assistance:

(1) Category 1—local emergency assistance (DACC 1);

(2) Category 2—significant emergency assistance (DACC 2); and

(3) Category 3—emergency recovery assistance (DACC 3).

b. Non-emergency Assistance:

(1) Category 4—significant non-emergency assistance (DACC 4);

(2) Category 5—local non-emergency assistance of a minor nature (DACC 5); and

(3) Category 6—law enforcement non-emergency assistance (DACC 6).

(Further details of what is included in each category is provided at [2.12]).  Paragraph [2.31] says:

2.32     The policy for cost recovery is as follows:

a. DACC 1 and 2—no cost recovery (unless DACC recipient agrees to pay costs of support);

b. DACC 3, 4 and 6—direct cost recovery (unless a cost waiver/variation is approved);

c. DACC 5—no cost recovery for community or charitable groups up to a net additional cost of $2500, if amount exceeds the net additional costs of $2500 then the support must be categorised and processed as DACC 4.

The list of assistance that Defence is, and has been providing to the current fire emergencies identifies that nearly all of that assistance is DACC 1 or 2.

There has been some DACC 4 assistance provided in accordance with standing arrangements. These are identified as arrangements with the NSW government to allow the Large Aerial Tanker and other aircraft to use RAAF Base Richmond, RAAF Base Williamtown and the Naval Air Station Nowra and arrangements with Western Australian government and the use of RAAF Base Pearce.

It follows that one would expect that all the DACC 1 and 2 assistance (eg the use of the Navy to evacuate Mallacoota, the use of the Air Force to transport firefighters etc) is being provided at no cost to the states and territories.

There may be cost recovery for the DACC 4 assistance (ie the use of the RAAF air bases and Naval Air Station Nowra) if that is consistent with the pre-arranged agreement unless a cost waiver/variation has been approved.

Relationship between Disaster Recovery Funding Arrangements and COMDISPLAN and state declarations of emergency or disaster

Neither the Disaster Recovery Funding Arrangements nor COMDISPLAN require that the states make a formal declaration of emergency or disaster before they come into operation.  The declaration of emergency or disaster by the states and territories is to trigger special emergency powers vested in the Minister or State/Territory controller to manage the response. The declarations do not relate to the arrangements between the Commonwealth and the States.

Conclusion

Whilst I cannot conclusively confirm it, I anticipate that the current Commonwealth assistance to the states and territories arising out of the bushfire emergencies is being provided at no cost to the affected states in accordance with COMDISPLAN. Even if there is a cost, the Commonwealth is likely to meet 50-75% of that cost in accordance with the Disaster Recovery Funding Arrangements.

Categories: Researchers

Queensland joins scheme to compensate firefighters

2 January, 2020 - 23:23

It has been announced that Queensland has joined the scheme to pay volunteer firefighters $300/day during deployment to the current fire emergency – Stuart Marsh ‘PM Scott Morrison extends $6000 volunteer firefighter payments to Queensland9News (31 December 2019).

For discussion of the scheme see:

 

Categories: Researchers

State of disaster in Victoria

2 January, 2020 - 22:34

The Premier of Victoria has declared a ‘state of disaster’ pursuant  to the Emergency Management Act 1986 (Vic) s 23. The declaration applies to ‘six Local Government Areas and the Alpine Resorts’.

As a result of that declaration (s 24)

… the Minister [for Emergency Services] is responsible for directing and co-ordinating the activities of all government agencies, and the allocation of all available resources of the Government, which the Minister considers necessary or desirable for responding to the disaster.

The declaration allows the Minister to:

(a) direct any government agency to do or refrain from doing any act, or to exercise or perform or refrain from exercising or performing any function, power, duty or responsibility

And, in a provision that is I think unique to Victoria:

(b)     if it appears to the Minister that compliance by a government agency with an Act or subordinate instrument, which prescribes the functions powers duties and responsibilities of that agency, would inhibit response to or recovery from the disaster, declare that the operation of the whole or any part of that Act or subordinate instrument is suspended;

That is the Minister can direct any department to depart from ‘business as usual’ and can suspend any Act or regulation if compliance with that Act or regulation would inhibit the response to or recovery from the disaster.  That is significant executive power vested in a single Minister.

Categories: Researchers

Fire appliance as emergency vehicle in WA

2 January, 2020 - 22:13

Today’s question is about:

… the definition of a fire brigade vehicle as an emergency vehicle in the Road Traffic Code 2000 (Western Australia).  The use of the word “or” confuses me. How is it meant to be interpreted?

“Of a fire brigade on official duty in consequence of a fire or an alarm of fire or of an emergency or rescue operation where human life is reasonably considered to be in danger;”

Or where the last portion “where human life is reasonably considered to be in danger” refers also to the first part.  The reading of the definition strikes me as… vague?  Looking as a layman only of course.

And also, we are led to believe the exemptions in the Code do not apply where road works are present or on private property (where I would think none of the Code is relevant?).  Re: road works it is arguable of course that it is appropriate to use exemptions under 281(1)(a)(ii) but it is not unusual to be waved through onto a closed section of the road by roadworkers or the roads are not being worked on at the time (late night/morning/weekends for example).  Is it referred to (and technically not exempt) elsewhere?

Definition of emergency vehicle

The Road Traffic Code 2000 (WA) r 3 says:

emergency vehicle means a vehicle — …

(b) of a fire brigade on official duty in consequence of a fire or an alarm of fire or of an emergency or rescue operation where human life is reasonably considered to be in danger;

The question is, is the definition to be read as:

Interpretation A

a vehicle — …

(b) of a fire brigade on official duty in consequence of

(i) a fire; or

(ii) an alarm of fire; or

(iii) of an emergency; or

(iv) rescue operation where human life is reasonably considered to be in danger;

or as

Interpretation B

a vehicle — …

(b) of a fire brigade on official duty in consequence of

(i) a fire; or

(ii) an alarm of fire; or

(iii) of an emergency; or

(iv) rescue operation

 where human life is reasonably considered to be in danger

In other words does the requirement ‘where human life is reasonably considered to be in danger’ apply to all the matters listed in (i) to (iv) above, or only to a ‘rescue operation’.

Deciding what interpretation applies would be a matter for a court should the issue arise. Imagine a situation where a fire brigade has been called, during winter, to a fire in a garbage bin in a roadside rest area.  The brigade has to do a u-turn to pull up at the fire.  Rather than stop and give way to oncoming traffic the driver activates the warning beacons and siren and does a u-turn giving the oncoming driver of a police car to have to take evasive action to avoid a collision. The police officer issues an infringement notice for failing to make a u-turn with safety contrary the Road Traffic Code 2000 (WA) r 32.

If I was the lawyer for the driver, I would argue that the exemption for emergency vehicles (r 281) applies because the driver was responding to a ‘fire’ and therefore this was an emergency vehicle (relying on the interpretation at ‘A’, above).  If I was the lawyer for the prosecution, I would argue that the vehicle was not, at that time, an emergency vehicle as the driver was not responding to a fire where human life is reasonably considered to be in danger (relying on the interpretation given at ‘B’ above).

Driving under emergency response conditions (lights and sirens and asking other road users to give way and make way for emergency vehicles) imposes risk to the emergency vehicle driver and other road users.  That can be justified where ‘human life is reasonably considered to be in danger’.  If however the interpretation in ‘B’, above, is correct, that is however a significant limitation where the emergency is posing a risk to property only for example a call is to a fire in an unoccupied but important heritage building.

The issue may however never arise. In the fire-in-the-bin scenario described above, a judge may accept that the driver of the fire appliance is driving an emergency vehicle but given he or she was responding to a bin fire, in winter, where there is no risk to human live then it is not ‘reasonable that the provision [r 32] should not apply’ and/or given the oncoming driver had to take evasive action the fire appliance driver was not taking reasonable care and so the exemption in r 281 does not apply.

Ultimately in the absence of a reported decision by a court, the interpretation to be applied is open to argument.

Exemption for emergency vehicles at road works

I have no idea why my correspondent is ‘led to believe the exemptions in the Code do not apply where road works are present …’  There is nothing in the Road Traffic Code to say that.  It may be a direction from the fire service that in the view of the service it is not reasonable to rely on the exemption in 281 in those circumstances.  Remember however that the exemption in r 281 only refers to other rules in the Road Traffic Code.  If entering a closed road or doing other things in road work areas is an offence under other legislation, then the r 281 exemption won’t apply.

Private Property

As for private property, the Road Traffic Code 2000 (WA) only applies on a road (r 4).  A road is ‘any highway, road or street open to, or used by, the public and includes every carriageway, footway, reservation, median strip and traffic island on it’ (Road Traffic (Administration) Act 2008 (WA) s 4).  The critical issue is whether the road is ‘open to, or used by, the public’ not who owns it, so a private road is still a road; but driving on say farmland behind a closed gate is not a road and the Code does not apply.

Conclusion

How the definition of emergency vehicle as it applies to a fire brigade appliance is not clear.  One can imagine scenarios where interpretation A or B, above makes sense. It would, ultimately be a matter for the court of appeal to decide but it unlikely to ever get before the court, but it might – see for example, Court of Appeal dismisses appeal by RFS tanker driver involved in fatal collision (October 13, 2017).

There is nothing in the Road Traffic Code to say the exemption in r 281 does not apply where road works are present.

The Road Traffic Code only applies on a road.  A road may be on private property but in the way most people think about private property (eg on a farm paddock) then it’s true that the Code does not apply.

 

Categories: Researchers

Emergency controller appointed, and state of alert declared for the Australian Capital Territory

2 January, 2020 - 19:37

The Emergencies Act 2004 (ACT) provides for the appointment of an emergency controller, a declared ‘state of alert’ (s 151) and a declared ‘state of emergency’ (s 156).

Appointment of emergency controller – no state of emergency

Pursuant to the Emergencies Act 2004 (ACT) s 150A, the Acting Chief Minister has appointed the Commissioner of the Emergency Services Agency (ESA), Georgeina Whelan as the Territory Emergency Controller.  This appointment is made even though there is, as yet, no declared state of emergency.

As the Emergency Controller, Ms Whelan is to

(a) to manage the response to, and the recovery from, the emergency by ensuring that entities dealing with the emergency are appropriately deployed;

(b) to coordinate the disposition of other resources to manage the emergency;

(c) to advise the Minister and the Chief Minister about the emergency;

(d) to advise the community on anything relating to the emergency that the emergency controller considers appropriate; [and]

(e) any other function given to the emergency controller under this Act or another territory law.

In this role she can exercise emergency powers (s 150C) including commandeering private assets and performing all the emergency management functions of the chief officers of the ACT emergency services (Fire and Rescue, Rural Fire Service, SES and ACT Ambulance).

State of Alert

A state of alert has also been declared for the ACT.  The declaration by Mick Gentleman MLA, Minister for Police and Emergency Service says:

Pursuant to s 151 of the Emergencies Act 2004 being satisfied an emergency is likely to happen and the Acting Chief Minister has not declared a state of emergency exists in relation to the emergency I DECLARE that a state of alert exists in the whole of the Australian Capital Territory

A state of alert is made in the absence of a declared state of emergency and comes to an end if a state of emergency is declared.  As the name suggests, a state of alert is intended to warn the community of risk.  It does not give anyone emergency powers or authority.  During the period of a state of alert ‘… the Minister must give the community regular situation reports, and other reports, in accordance with the community communication and information plan’ (s 154).

State of Emergency

A state of emergency is declared by the Chief Minister.  If a state of emergency is declared (s 159) ‘The Chief Minister must appoint a person to be the emergency controller for a declared state of emergency.’  Unlike other jurisdictions the person who takes on the role of emergency controller is not pre-defined.  That is in many jurisdictions the state controller is an office holder, for example the Commissioner of Police. In the ACT the Chief Minister can appoint whoever is the most appropriate person given the nature of the emergency.

An emergency controller appointed under s 150 is taken to be the emergency controller unless another person is appointed to that role (s 159(2) and (3)).

The emergency controller is ‘required to manage the response to, and the recovery from, the emergency by ensuring that entities dealing with the emergency are appropriately deployed’ (s 160). The emergency controller may exercise various emergency powers (s 160A).  Interestingly s 167 says:

During an emergency for which an emergency controller is appointed, a person must not deploy Territory resources outside the ACT, in relation to an emergency outside the ACT, without the approval of the emergency controller.

In other words if, for example, a state of emergency were declared the Chief Officer – Rural Fire Service could not deploy ACT resources to assist in NSW without the emergency controller’s approval.

 

 

 

 

 

Categories: Researchers

Compensating volunteer firefighters

31 December, 2019 - 11:09

I have previously reported on the Commonwealth’s scheme to compensate firefighters for lost income during the current fires in New South Wales – see Commonwealth to pay NSW to reimburse firefighters (December 29, 2019).

It has been reported that this is not the first time this has happened. 9News said (‘Morrison under pressure to offer income payments to volunteer firefighters’ (27 December 2019)), before the announcement was made:

Prime Minister Scott Morrison is under pressure to follow in the wake of former Prime Ministers by offering relief payments to volunteers fighting the country’s bushfires.

Under the Social Security Act of 1991, an Australian government can provide a form of income support for firefighters if a major disaster is declared.

In 1994, then-PM Paul Keating used the law to pay firefighters after bushfires in Sydney saw more than 200 home lost and four people killed.

In 2001, Liberal PM John Howard used the law to compensate volunteers who suffered a loss of income following the devastating Black Christmas fires.

I have tried to find some reference to those earlier payments.

1994

In an interview on 10 January 1994, then Prime Minister Keating said:

The Government has today substantially increased the disaster relief payment under the social security system, which will triple it in many cases for families, to just under $2000 and over $1000 for a single person. Now, this will be paid to people who have had their homes damaged or whose income has been severely dislocated – for instance firefighters who’ve not been paid by their employers would qualify.

During the interview he was asked:

J: How will people be assessed?

PM: This payment is not income tested or asset tested. It Is only on the basis of whether their homes have been damaged or destroyed, whether they have suffered material income loss in the course of the fire or fighting the fire. So, for instance, it won’t be paid to somebody who has simply been evacuated and is coming back t0 their house which is undamaged. But it would be paid to others who have suffered an employment loss or loss of Income.

J: will this include volunteer firefighters who have lost income?

PM: It will include volunteer firefighters who have lost income. Volunteer firefighters who’ve income or have not been paid by their employer – we would be able to pay them this payment.

(I infer “J”, in infer, means ‘journalist, as the person conducting the interview is not named).

The Disaster Relief Payment was provided for in the Social Security Act 1991 (Cth). In 1994 the Act provided a person qualified for a disaster relief payment if, as a result of a major disaster, ‘there is a significant interruption to a person’s source of livelihood’ (s 1061K; as at 10 January 1994). As the Prime Minister noted, the value of the payment was based on ‘a formula and It would depend on whether someone is single, married or with children and it rises accordingly. With two children under 13 it’s about $ 2000, roughly.’

It would appear that in 1994 there was no a specific move to ‘extend’ payments to firefighters. Once the fires were declared to be a major disaster, firefighters were eligible to claim the money if they could show a significant interruption to [their]… source of livelihood’. In the interview cited above, the Prime Minister was announcing an increase in the value of the payment, not an extension of who was eligible.

2001

The only reference I can find to these payments is in a ruling, issued on 13 June 2003 by the Australian Tax Office (the ATO), on whether benefits paid under the Volunteer Firefighters Emergency and General Assistance payment were taxable. That ruling says (emphasis added):

Ex gratia payments were made by the Department of Family and Community Services, through Centrelink, under a Volunteer Firefighters Assistance Package.

These payments were made as Emergency and General Assistance payments and were paid at the rate of $160 per day. They were paid to compensate volunteer firefighters for the loss of income they sustained while fighting bushfires in New South Wales.

The payments were made to those firefighters who met the following criteria:

  • they were a member of a recognised firefighting organisation
  • they suffered a loss of income while fighting the fires, and
  • they fought the fires during the ‘declared period’ of 24 December 2001 to 16 January 2002.

The taxpayer was a volunteer firefighter who met these criteria and received an Emergency and General Assistance payment from Centrelink.

The ATO’s ruled that payments received by firefighters were counted as taxable income.  The ruling said:

As an Emergency and General Assistance payment made under the Voluntary Firefighters Assistance package is paid as compensation to replace income, the payment acquires the character of income.

Accordingly, a Voluntary Firefighters Assistance payment is ordinary income and is therefore assessable.

I cannot find a reference to the legislation now, or at the time to ‘Emergency and General Assistance payments’ so it’s not clear what those payments were.

Today Social Security Act

Under the current version of the Act the Commonwealth pays a Disaster Recovery Allowance and a Disaster Recovery Payment.

Disaster Recovery Allowance

The Disaster Recovery Allowance is an ongoing payment to deal with lost income (and would appear to replace the Disaster Relief Payment discussed by Prime Minister Keating).  Both in 1994 and today, a major disaster is an event that the Minister has declared is a major disaster (ss 36 (1994 and current) and 36A (current)). Today a person has to demonstrate that they have ‘suffered a loss of income as a direct result of the’ declared major disaster (s 1061KA(1)(f)) and that they meet any other eligibility requirements in the Minister’s declaration (s 1061KA(1)(i)).

I cannot find the current declaration from the Minister but the Departmental website says that to be eligible a person has to:

  • get an income by working in an affected Local Government Area or live in an affected Local Government Area
  • lose income as a direct result of the NSW Bushfires in August, September, October, November and December 2019

A firefighter responding in the local government area where he or she lives, or works may be eligible for this benefit, but it would not extend to those providing out of area assistance.

Disaster Recovery Payment

The Disaster Recovery Payment is a one-off payment for a person adversely affected by a major disaster. The payments are $1000 per adult and $400 per child (s 1061M). To be eligible a person has to meet the definition of ‘adversely affected’ as set out in the Minister’s declaration (s 1061L).  Again I cannot find the current declaration but the Departmental website says that to be eligible a person has to:

… have been adversely affected by the fire. For example:

  • you have been seriously injured
  • you’re the immediate family member of an Australian citizen or resident who died
  • your principle place of residence has been destroyed or must be demolished
  • the interior of your principal place of residence has sustained major damage
  • damage from the fire has exposed the interior of your principal place of residence to the elements
  • your principle place of residence has been declared structurally unsound
  • the interior of your residence has been affected by sewerage contamination
  • you’re the principal carer of a dependent child who has experienced any of the above.

That could extend to firefighters who have been injured and the families of those firefighters who have tragically lost their lives.

It should be noted that these payments are not state specific.  Declarations have been made for fires in many states – see https://www.humanservices.gov.au/individuals/help-emergency.

Crisis payments

The Social Security Act 1991 (Cth) provides for crisis payments (as did the version of the Act in force in early 2003).  Qualifications are for a crisis payment are (ss 1061JG to 1061JI) release from gaol or psychiatric confinement, extreme circumstances forcing departure from home, remaining in home after removal of family member due to domestic or family violence or a humanitarian entrant to Australia.  A person eligible for a disaster relief payment is not eligible for a crisis payment (s 1061JJ).  Crisis payments do not equate to ‘Emergency and General Assistance payments’ as described in the 2003 ATO ruling.

The current payments to firefighters

In my post Commonwealth to pay NSW to reimburse firefighters (December 29, 2019) I said:

The details, not surprisingly, are not fleshed out in a news report and given the statement ‘The Federal Government payments will be administered by New South Wales and are expected to be made available before the end of January’ it is likely the details have not yet been fully fleshed out.

There are now some more details available on Services NSW website and the Commonwealth’s Disaster Assist website.  That now says that to receive the payments an applicant needs to be:

A volunteer firefighter who:

  • is from a recognised firefighting organisation in NSW
  • has been volunteering as part of an operational response to bushfires for more than 10 days since 1 July 2019. This can include reasonable travel and recovery time but does not include training or participating in non-emergency operations (for example, hazard reduction burns).
  • is self-employed or employed by a small or medium business, and has lost income.

I cannot find a definition of ‘recognised firefighting organisation in NSW’ which is troubling as it is a phrase that I’m sure I have seen before. Even so I cannot find a definition in current or repealed NSW or Commonwealth legislation or regulations, the NSW EM or Bush-Fire Plan or on the RFS website. It may be that the term has just been picked up from the 2001 scheme.  If anyone can point me (and the readers of this blog) to a definition that would be most helpful (and please don’t just suggest what it means, I’m looking for a definition in a legal instrument).

In my post I suggested that this payment may be made by way of tied grant to the States (Australian Constitution s 96).  I can still find no definitive statement as to how the grants are being managed.  In the Prime Minister’s media release (New Payments To Support Nsw Volunteer Firefighters (29 December 2019)) NSW Premier Gladys Berejiklian is quoted as saying:

 “We are now pleased to provide administrative support to the Commonwealth to compensate our brave volunteers for loss of income.”

The reference to administrative support could suggest that it is still a commonwealth payment to individuals just managed by the states.  I suppose speculation doesn’t help and the exact legal arrangements don’t really matter at this time.  In due course the details of how the payments are being managed will become clear.

Another interesting quote from the NSW Premier is the statement that:

“The NSW Government already provides unlimited paid leave to all state public service employees who volunteer with the RFS or the other emergency services.

“On top of that, NSW public service employees are able to take rest leave to allow time for their recovery before returning to work….

I understand that SA has signed off for the same benefits for its firefighters (Cathy Van Extel, ‘SA signs off on compensation deal to pay volunteer firefighters up to $6000ABC Radio National Breakfast, 30 December 2019) and Victoria has ruled it out (Rebecca Urban ‘Victoria CFA chief slams plan to compensate volunteer firefightersThe Australian (Online) 29 December 2019).

 

Categories: Researchers

Transporting sedated patients in WA

30 December, 2019 - 16:46

There has, naturally, been lots of bushfire news lately and with that lots of commentary on this blog.  Today however I return to paramedics and paramedicine in Western Australia.  Today’s question is about:

 … an inter-hospital transfer. I was tasked to transfer a patient [from a small outer metro ED to a larger city ED] with a “?drug induced psychosis” who had been sedated and was not on forms [a reference to the forms used for involuntary admission / transfers under the Mental Health Act].

The originating doctor was wanting me to transfer under a ‘Duty of Care’ as we would a head injured patient as he didn’t think the patient needed to be on forms. The police bought the patient in to ED under the Mental Health Act and were still in attendance at the hospital. The patient had been sedated in the police van by hospital staff then taken into the department for further IV sedation.

Where do we stand legally with sedated patients (whose capacity to consent has been removed) and a ‘Duty of Care’ transfer? I advised if patient wakes up and wants out, then I have to let them out. If I took the patient by myself and continued sedation am I putting myself at risk of assault and battery and deprivation of liberty? The patient was eventually put on forms and police came with me-happy days.

Where do we stand with sedated patients and ‘duty of care‘ transfers? The doctor wants clarification. So do I.

I’ve previously discussed the WA mental health legislation- see Trauma or mental illness – WA (June 19, 2019) and Detaining the non-compliant in WA (July 21, 2019).

I do not understand what is meant by ‘a ‘duty of care’ transfer’.  Either the patient needed to be transferred for definitive care or he or she did not. I will put that comment aside as it doesn’t mean anything.  All patients should be transported when their care requires it, and not when it does not.

Here the patient has a problem, in this case let us accept that it was a drug induced psychosis, but it could be a head trauma, hypoxia or anything else.  If they are competent, they can refuse treatment.  If they are not competent treatment that is reasonable and in their best interests can be administered without consent (Collins v Wilcock [1984] 3 All ER 374; Guardianship and Administration Act 1990 (WA) s 110ZI).

If the patient presented with a drug induced psychosis and as a result of that psychosis they were unable to ‘understand the nature of the suggested treatment, weigh up the consequences of and communicate his or her decision’ then they were not competent.  If sedation is a clinically indicated treatment, provided to advance the best interests of the patient, then it can be administered.  Once sedated they can be provided with other medical care that is reasonable in the circumstances and in their best interests, including transport by ambulance to another ED for more definitive care.

So far, the Mental Health Act has not entered into it nor should it if they have a physical issue.  If they need a physician not a psychiatrist, then the Mental Health Act is not relevant.

The Mental Health Act 2014 (WA) allows for involuntary treatment.  It says (s 26):

A medical practitioner … may refer a person under subsection (2) or (3)(a) for an examination conducted by a psychiatrist if, having regard to the criteria specified in section 25, the practitioner reasonably suspects that —

(a) the person is in need of an involuntary treatment order; or

The inference from this story however is that the patient was not being sent or assessment by or treatment by a psychiatrist.

There is an overlap between physical and mental illness in that mental disturbances can have physical causes (eg head trauma, drugs etc).  Section 6 of the Mental Health Act 2014 (WA) says:

A person has a mental illness if the person has a condition that —

(a)        is characterised by a disturbance of thought, mood, volition, perception, orientation or memory; and

(b)       significantly impairs (temporarily or permanently) the person’s judgment or behaviour.

The fact that those disturbances are caused by drugs does not deny that those criteria are met.  But, as noted in my earlier post (Trauma or mental illness – WA (June 19, 2019)):

Section 6(4) says “A decision whether or not a person has a mental illness must be made in accordance with internationally accepted standards prescribed by the regulations for this subsection.”  The prescribed standards are (Mental Health Regulations 2015 (WA) r 4):

(a)        the International Statistical Classification of Diseases and Related Health Problems published from time to time by the World Health Organisation;

(b)         the Diagnostic and Statistical Manual of Mental Disorders published from time to time by the American Psychiatric Association.

I also said in that earlier post:

I don’t think a heavily intoxicated patient is mentally ill.  I note that s 6(2)(i) provides that a person is not to be taken to be mentally ill just because ‘the person uses alcohol or other drugs’.  Even so ‘the serious or permanent physiological, biochemical or psychological effects of the use of alcohol or other drugs [may be]… regarded as an indication that a person has a mental illness’ (s 6(3)).  The long term effects of alcohol or drugs may be evidence of or give rise to a mental illness but immediate intoxication does not equate to a mental illness.

I’m not a clinician so I cannot answer the question, but I can pose the question that should be asked.  It is this:

Does the doctor, honestly believe that the patient’s symptoms meet the criteria in s 6 and that it is attributable to a mental illness as defined in the International Statistical Classification of Diseases and Related Health Problems published from time to time by the World Health Organisation and/or the Diagnostic and Statistical Manual of Mental Disorders published from time to time by the American Psychiatric Association and that the person needs to be assessed by a psychiatrist?

If the answer to that question is ‘yes’ then the Mental Health Act is relevant and steps can be made to provide involuntary treatment to the patient even though he or she remains competent to and is refusing treatment.

If the patient is competent and consents to treatment, no problem.

If the patient is not competent then treatment can be given on the basis of the doctrine of necessity and the Guardianship and Administration Act 1990 (WA) s 110ZI.

If the answer to the above question is ‘no’ eg the patient has a drug overdose and needs to be treated for the physical effects of the drugs, either by being sustained until the drugs are broken down or otherwise dealt with by the body or active treatment is given, then the issue of involuntary treatment under the Mental Health Act does not arise as there is no genuine attempt to get the patient assessed by a psychiatrist (ss 26 and 55).

Presumably if, in this case, the doctor did not think the patient should be ‘on forms’ it was because the doctor did not think the patient was mentally ill.  The patient was physically ill and need more definitive care at another ED, just like any other patient.  The description ‘as we would a head injured patient’ sounds perfectly reasonable.  If a person suffered a head injury and was a danger to themselves or others and not competent to consent or refuse consent to treatment would be sedated and transported to definitive care without any need to refer to the Mental Health Act.  I can see no difference here.  The Mental Health Act is not a tool to impose any treatment on people just because it is for their own good.

The question was:

Where do we stand legally with sedated patients (whose capacity to consent has been removed…? I advised if patient wakes up and wants out, then I have to let them out. If I took the patient by myself and continued sedation am, I putting myself at risk of assault and battery and deprivation of liberty?

If the patient recovers consciousness and has capacity they can refuse treatment but one has to put that in context, if they are in the back of an ambulance probably not fully aware of where they are, how they got there, and what’s happening they are probably not competent (and read the many posts on this blog on what that means – see https://emergencylaw.wordpress.com/?s=gillick).

If on the other hand a paramedic collects a patient that is undergoing active treatment (sedation) and continues treatment en route how is that any different to maintaining any other drugs that have been prescribed to the patient by the treating doctor?  If the first doctor has determined upon examination that the patient’s condition warrants sedation and transport, the paramedic is not required to cease the treatment to ensure that in his or her view it was correct.

Conclusion

I have no idea what is meant by a ‘duty of care’ transfer.

If a patient is not competent to refuse treatment, then treatment that is necessary and in his best interests can be given which can include sedation and transfer to higher level care.  The Mental Health Act is not relevant even if the cause of the patient’s loss of competence is a drug induced psychosis.

The Mental Health Act provides for the involuntary treatment of a mental illness.  It does not provide or justify involuntary treatment of a physical illness by someone who refuses consent.

From what I can infer from the information provided the assessment that this was just like treating a patient with a head injury would be an appropriate way to look at it.

 

Categories: Researchers

Donated respirators for RFS firefighters

29 December, 2019 - 15:36

A person who is raising funds to provide respirators to volunteer firefighters wrote and asked:

I’ve been crowd funding for masks for the volunteers. I bought them the best masks that meet all AUSnz standards.

There are posts circulating saying that if the masks are used, without approval from the RFS, ppl will not be eligible for compensation.

Please help me. I’ve handed out four hundred masks and intend on issuing one to every volunteer.

I’ve got my facts on masks now. I just need the laws

My response was to direct my correspondent to an earlier post – Choosing your own PPE (June 5, 2019).  They then came back to me with this question:

Can they force them to not wear the masks? When they were buying them individually there was no drama. Now it’s a big deal because we are handing them out?

That’s  more complex question.  As I noted in my original post both the RFS and volunteers have obligations to comply with Work Health and Safety requirements (Work Health and Safety Act 2011 (NSW) s 19 and s 28). Section 28 says that a worker (which includes a volunteer) must:

(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.

It would beg the question of whether any direction not to wear the mask was ‘reasonable’.  It would be ‘reasonable’ (ie based on reason) if the RFS actually had some grounds to suggest that the masks being supplied did pose a risk to health and safety over and above the masks issued by the RFS.  I do note that in a news report – Lucy Thackray, Luisa Rubbo, Bridget Murphy and Peta Doherty ‘NSW firefighters crowdfunding upgraded face masks amid claims RFS gear insufficientABC News (Online) 11 December 2019 –

… the RFS said P2 masks are currently the safest method of protection and that P3 masks could even make breathing more difficult while fighting fires.

The RFS said P2 masks are “certified and tested rigorously”…

The RFS said it would take a long time to change safety equipment protocols.

“For the service to consider changing any of its provided firefighting equipment and apparel would require a full and compressive scientific research and evaluation process,” it said.

In another story – Jenny Noyes, ‘Why the RFS won’t pay for ‘game-changing’ respirator masksSydney Morning Herald (Online) 12 December 2019:

… a spokesman for the RFS insisted disposable P2 masks remain the most appropriate respiratory protection for volunteer firefightings – and he said P3 masks, by design, can pose risks such as an increase in the likelihood of heat stress.

The disposable P2 masks are “a practical solution for managing exposure to bushfire smoke when taking into account other risks such as the displacement of metabolic heat,” the spokesman said.

P3 masks, on the other hand, can “interfere with the correct fitment of goggles, helmet and flash hood, as well as retain metabolic heat by the volume of the firefighters face being covered” which “contributes to heat exhaustion”…

For the RFS to consider changing any of its provided firefighting equipment and apparel “would require a full and compressive scientific research and evaluation process,” he said.

There lies the issue. If the RFS have not done a full assessment and decided that a mask is safe in the circumstances in which they will use it that may be good grounds not to issue it but that’s not a very strong argument.  Context has to be considered.  If the masks are manufactured to relevant industry or Australian standards, that would go a long way to saying that they are fit for purpose.  In an ideal world you might explore multiple brands and styles, issue them to members for feedback, discuss unique operating requirements with manufacturers to come up with a decision to buy and issue a particular item.  But that sort of detail may not be required if, as a firefighter quoted in the ABC story is correct when he says ‘”In defence of the RFS, these are unprecedented conditions on a scale no one could have anticipated,” he wrote’ and the circumstances warrant prompt action.

On the other hand, the RFS do say there is a safety risk and if there is that sort of evidence eg that these masks are in fact not the best for bushfire fighting even if short term reports are favourable then at least the RFS has to warn its firefighters and depending on the science, perhaps ban them.

But what are the consequence? WHS laws are criminal laws.  Assume the RFS does ‘ban’ them. If there’s really no good reason for that, even if they say ‘we haven’t tested them we can’t be sure’ then it would hardly be a ‘reasonable direction’.  If there really is good science behind it and a firefighter still wears it then arguably the firefighter is going to breaking his or her obligation under s 28 but the idea that a work place inspector is going to turn up on a fire ground and issue a notice to comply seems extremely unlikely.  Equally it would seem unlikely that the RFS would take disciplinary action against members any more than it would for members carrying pocketknives they’ve bought themselves.

Conclusion

I think it’s reasonably for the RFS to say at least initially, ‘we’re not supplying them’ on the basis that they have not considered and assessed the various items and there are government purchasing processes that have to be followed. If, however, the evidence coming back to RFS is that ‘these are unprecedented conditions on a scale no one could have anticipated’ and in these circumstances the standard issues masks are not adequate, there could and should be ways to fast track the implementation of a solution even if it has to be revisited once the fires are over.

The only legitimate reason to ban the wearing of the masks that have been purchased by members or donated by communities is if there is sound evidence, not mere speculation, that the masks actually increase the risk to firefighter health and safety.  That may be hard to establish if they are built to industry or Australian standards for wildland firefighter respiratory protection.

Categories: Researchers

Commonwealth to pay NSW to reimburse firefighters

29 December, 2019 - 10:40

It is being reported that the Prime Minister has announced that the commonwealth will make money available to pay $300/day to NSW Rural Fire Service volunteers involved in the current extended fire campaign, to a maximum of $6000 per person –  Jade Macmillan, ‘Scott Morrison announces compensation payments for New South Wales volunteer firefightersABC News (Online) 29 December 2019.

The details, not surprisingly, are not fleshed out in a news report and given the statement ‘The Federal Government payments will be administered by New South Wales and are expected to be made available before the end of January’ it is likely the details have not yet been fully fleshed out.

Working on supposition, I would infer that the payments will be made to the states in the form of a ‘tied grant’ (Australian Constitution s 96). That section says:

During a period of ten years after the establishment of the Commonwealth and thereafter until the Parliament otherwise provides, the Parliament may grant financial assistance to any State on such terms and conditions as the Parliament thinks fit.

The Parliament has not provided to stop tied grants and this is a key feature in the federal relationship. The Commonwealth can give money to the states subject to ‘terms and conditions’ that it is spent in a particular way, in this case on providing the compensation to the RFS volunteers.  That would be consistent with the report that ‘payments will be administered by New South Wales’.

The form of funding would also explain why the payments are currently limited to New South Wales but that ‘… other states and territories could request a similar scheme based on their level of need’.

Arguably the Commonwealth cannot discriminate against citizens on a state-by-state basis (Australian Constitution s 117; though ‘The question whether section 117 limits the lawmaking power of the Commonwealth Parliament has not yet been conclusively resolved by the High Court’ Commonwealth of Australia, Australia’s Constitution: With Overview and Notes by the Australian Government Solicitor (2010) p. vii). In any event making the payment to New South Wales and not to individuals would avoid that issue. That is the Commonwealth would be in some difficulty if it made an allowance that said ‘Residents of NSW get this money but not residents in other states…’ but it has no such difficulty making a grant available to NSW and to other jurisdictions on request.

The problem with all schemes is that will involve arbitrary lines and with arbitrary lines, someone always falls on the wrong side.

We are told these payments will be made available ‘to NSW Rural Fire Service (RFS) volunteers who are self-employed or working for small or medium-sized businesses and who had been called out for more than 10 days this fire season.’  Mr Morrison is quoted as saying “We expect larger companies to provide their employees with 20 days of emergency services leave.”

The Fair Work Act 2009 (Cth) s 108 provides that employees are to have community service leave for, amongst other things, emergency service work, but it does not say that the leave must be paid except where it is to serve on a jury (https://www.fairwork.gov.au/leave/community-service-leave).  Section 772(1) says:

An employer must not terminate an employee’s employment for one or more of the following reasons, or for reasons including one or more of the following reasons: …

(h)       temporary absence from work for the purpose of engaging in a voluntary emergency management activity, where the absence is reasonable having regard to all the circumstances.

It may be that large employers ‘provide their employees with 20 days of emergency services leave’ but it does not follow that it must be paid leave and so employees may miss out.  Of course the current publicity and the decision of the Commonwealth to give Commonwealth employees 20 days paid leave will certainly bring moral pressure to large employers to behave has, and to be seen to behave as, good corporate citizens – James Hall ‘Woolworths extends paid leave for volunteer firefighters’ news.com.au (27 December 2019).

The other arbitrary line is that the payments are limited (we are told) to RFS volunteers.  There have been declared states of emergency in NSW and even without a declaration the NSW Emergency Management Plan comes into play (ie it does not need to be formally ‘activated’ (State Emergency and Rescue Management Act 1989 (NSW) s 13). Under the State EM Plan the following agencies, which I infer rely on volunteers, have functional roles and may be involved in the current emergency include:

  • Ambulance Service of NSW (Honorary Ambulance Officers appointed under the Health Services Act 1997 (NSW) s 67H));
  • NSW Police Force (see Volunteers In Policing);
  • State Emergency Service;
  • New South Wales Volunteer Rescue Association Inc; and
  • Volunteer Marine Rescue NSW.

The NSW response has also been assisted by interstate volunteer firefighters.

Add to that the Participating and supporting organisations.  A participating organisation includes;

 … volunteer organisations … [that] have either given formal notice to Agency Controllers or Functional Area Coordinators, or have acknowledged to the SEMC, that they are willing to participate in emergency response and recovery operations under the direction of the Controller of a Combat Agency, or Coordinator of a Functional Area, or an EOCON, and with levels of resources or support as appropriate to the emergency operation.

A supporting organisation is an organisation that has ‘… indicated a willingness to participate and provide specialist support resources.’

Participating organisations in the Welfare Services Functional Area Supporting Plan (June 2018) that I understand are likely to use volunteers are:

  • ANGLICARE;
  • ADRA (Adventist Development and Relief Agency);
  • Australian Red Cross (NSW);
  • The Salvation Army; and
  • Uniting Church in Australia (Synod of NSW and ACT)

St John Ambulance Australia (NSW) is a participating organisation in the New South Wales Health Services Functional Area Supporting Plan (NSW HEALTHPLAN) (2013) and there are a large number of volunteer organisations listed as participating and supporting organisations in the Agriculture and Animal Services Functional Area Supporting Plan (2017).

It follows that there are likely to be many volunteers, currently engaged away from work and no doubt losing income that will not be covered by a scheme that only compensates RFS volunteers.

Discussion

Of course, one has to start somewhere and given the growing pressure on the Federal government to be seen to be doing something this is not an unsurprising start. Arbitrary lines – eg $300/day for a minimum of 10 days, maximum of 20, and only paid to RFS volunteers – make for easy administration.  It would be much more complex if it was compensation payable to anyone who could show that they had been involved in a volunteer response and had lost income as a result. But, as noted above, whenever arbitrary lines are drawn, deserving people are going to fall on the wrong side.  No doubt there will be plenty of hard cases to be found where someone can say ‘it’s unfair that my neighbour got $6000 because he/she had an RFS uniform on when I was also deployed, but in a different uniform’.

Making policy on the run will also lead to arbitrary outcomes.  Hopefully in the wash up to these events, having established the precedent, the Commonwealth and the States and Territories will develop a more comprehensive scheme to be used in the next long term emergency whether that’s heatwave, flood or fire.

Categories: Researchers

Calls for national emergency service volunteer compensation scheme

26 December, 2019 - 17:51

In a report on ABC Radio National’s PM program (‘Volunteers struggling to cope with post-traumatic stress as bushfires rage onABC PM (Online) 26 December 2019) we are told ‘A leading trauma expert is calling for a national compensation scheme for injured volunteers and their families.’

The story is about PTSD in volunteer firefighters.  The expert is Sandy McFarlane, professor of psychiatry and director, Centre for Traumatic Stress Studies, Adelaide University. According to the journalist, Meghna Bali:

He’s also calling for a national compensation scheme for injured volunteers or the families of those who’ve died on the job. He says state governments have progressively tried to absolve themselves of long-term compensation by quashing claims in court.

Recognising that there are limits on what can be reported in a 5 minute story I do wonder what ‘claims in court’ he’s referring to and, more importantly, why a national scheme would be either appropriate or better?

Each state and territory provides workers type insurance for volunteers who are volunteering for the state agencies.  Presumably if there was a commonwealth scheme it would be akin to, or run by ComCare, as provided for in the Safety, Rehabilitation and Compensation Act 1988 (Cth).

Any insurer whether its ComCare, iCare (in NSW) or any of the other statutory or private insurer is charged with ensuring compensation is paid out in accordance with the governing legislation.  The legislation is never going to say ‘pay compensation to the applicant for whatever the applicant claims and in whatever amount the applicant says is reasonable’. The system may be tortious, slow, abusive and damaging (and it is all those things) but claims are tested and insurers take steps to ensure that the evidence supports their claim and that claimants are not exaggerating their symptoms (hence such things as covert observations and other activities that do in fact harm rather than help applicants; see for example WorkSafe Victoria 2.8.3 Surveillance guidelines for Agents (2019)).

Calling for a national compensation scheme is not going to change that. ComCare will seek to protect its revenue and insurance pool as will any other insurer.  It’s also wrong to put the blame at the foot of state governments.  Whilst they are indeed responsible for the letter of the law and act as self-insurers, it is the insurer that decides how to manage claims – what to settle and what to defend.  State (and commonwealth) governments do not get involved in the day to day decision making.

Although it’s not workers compensation it’s interesting to note the outcome from the class action arising out of the Queensland floods of 2011. The NSW Supreme Court has found that the State of Queensland and two authorities, SEQWater and Sunwater were negligent in their dam operations at the time.  The State of Queensland has ruled out an appeal but the other defendants, although owned by Queensland have not.  In a news report (Matt Wordsworth, ‘Queensland 2011 floods class action payout held up as water authorities move to appeal decisionABC News (Online) 20 December 2019) we are told:

Both Sunwater and Seqwater said they would each lodge a “notice of intention to appeal” with the New South Wales Supreme Court, but also said they hadn’t made a final decision on whether to launch an appeal…

The Queensland Government had already opted not to appeal the decision.

In a statement, shareholding ministers Treasurer Jackie Trad and Natural Resources Minister Dr Anthony Lynham said the water authorities had independent boards and each had its own insurance policy to consider.

“The relevant insurance companies now have a legal right to determine their next steps,” they said.

“If a Ministerial Direction to Seqwater or Sunwater to not appeal the court decision could be given, it would not bind their insurers and it may compromise their insurance policies.”

They have called upon the insurers of Seqwater and Sunwater to rule out an appeal.

It’s a similar issue in workers compensation even where states are self-insured.  It is up to the insurer to determine the legal rights (and wrongs) and make decisions on that basis.

Discussion

I have every sympathy for those suffering from injury but fault based schemes, and even no fault schemes like Workers Compensation, are coupled with appalling processes (see ‘WorkCover system failing long-term injured workers, Victorian Ombudsman finds in WorkSafe reportABC News (Online) (3 Dec 2019)).  The normal stereotype of personal injuries lawyers are unethical ambulance chasers (think Lionel Hutz from the Simpsons assisted by Dr Nick Riviera), but the reality is that they are there to assist people through a complex scheme. Without legal assistance many more people would be ejected without anything and ‘no win no pay’ cost agreements are a form of professional provided legal aid (noting that in Australia, lawyers cannot charge a percentage of the verdict).

I again note that there is little room in a 5 minute story and the quoted expert is an expert in psychiatry not law or insurance, but even so it is hard to see why he or anyone would think a national scheme would make any difference to the outcomes.  There is no reason to think that ComCare would be a better or more generous insurer than the various agencies managing state volunteer insurance schemes. Nor is there any reason put forward as to why the national government should in effect, insure state volunteers.

Since 2002 and the introduction of Civil Liability legislation governments have increasingly sought to restrict compensation benefits. This has been in response to public outcry over what are seen as over generous payments or people ‘bludging on compo’.  Next time there is a ‘moral panic’ about compensation and people suing for injuries remember that making it harder to sue and reducing the amounts paid will affect everyone, including those not at all at fault and volunteers.   (For related discussions, see NSW workers compensation and when is an employee a firefighter? or a paramedic? (July 30, 2015); NSW workers compensation and when is a volunteer a paramedic? (July 31, 2015) and generally all the posts that appear here https://emergencylaw.wordpress.com/category/volunteer-compensation/).

Moving to a federal scheme won’t change that.  Even a scheme like the NDIS is followed by court cases where people challenge decision makers who have rejected claims and who sometimes win, and sometimes lose (Dan Conifer, ‘NDIS reviews leave people with disabilities waiting up to nine months for an outcomeABC News (Online) (16 May 2018)).  No system, not even New Zealand’s universal Accident Compensation scheme will avoid that – see for example decisions of the New Zealand Accident Compensation Appeal Authority and then New Zealand Accident Compensation Appeals

Conclusion

The current fires are seeing many calls for the national government to do ‘something’ (see What is a ‘national emergency’? (December 25, 2019)) but it is unclear, in most cases, what that something should be, or why it would be better or more efficient or more effective for the ‘something’ to come from the Federal government. There is no reason to think a national compensation scheme would produce any different result to the current state based schemes.

Categories: Researchers

Employment, and income protection, for volunteers in WA

26 December, 2019 - 12:39

I’ve written on employment protection, and the lack of income protection for volunteers in NSW – see Volunteer employment protection during current fires – NSW (November 15, 2019).  A volunteer cannot be victimised for responding during a declared state of emergency, but their employer is not obligated to pay them for their time off work.  We do know that the Prime Minister has announced that Commonwealth employees will be given 4 weeks paid emergency service leave (Jack Snape ‘Prime Minister Scott Morrison says volunteer firefighters with public sector jobs will get four weeks’ paid leaveABC News (Online) 24 December 2019). That is a decision by the Commonwealth as employer rather than Commonwealth as the government.  The Commonwealth as employer can make that decision as can any employer. Whilst it sets an example it does not compel any other employer to do the same.

Western Australia

With that background a correspondent has drawn my attention to a publication by the West Australian Department of Fire and Emergency Services (DFES) The Employer’s Guide to Employing Emergency Services Volunteers (April 2016). That publication, in turn, refers to the Emergency Management Act 2005 (WA) s 92(2).  That section says:

An employee who is absent from the employee’s employment because the employee is carrying out an emergency management response is entitled to be paid by the person’s employer remuneration for the period of the employee’s absence calculated at the employee’s ordinary rate of remuneration, determined in accordance with the regulations, on the time that the employee would ordinarily have worked had the employee worked his or her scheduled work time.

Section 93 of the WA Act is similar to the NSW Act in that it provides that an employer must not ‘victimise’ an emergency service volunteer for his or her absence during an emergency. Unlike the NSW Act however it does provide a defence for the employer if the employee’s absence was ‘not reasonable having regard to all the circumstances.’

In WA therefore an employer can in effect insist that an employee is not ‘unreasonably’ absent and that will be influenced by the employee’s role in the business and how essential their attendance is.  But unlike NSW a volunteer must be paid during their absence.

Discussion

Here the state is shifting the cost of responding to employers and that could be a significant cost if a large proportion of the employer’s staff are volunteers (which may be the case for a large employer with lots of volunteers on staff, or a small employer who only has one staff member and that staff member is a volunteer).

There could be two views on that.  On one view emergency management is a shared responsibility so that is part of the employer/business responsibility particularly where volunteers are protecting the very community where the business operates. On the other hand, it could be argued that the volunteers are providing a community benefit and so the community (via the government) should pay (see also the discussion in the post No liability for damage to grapes caused by WA hazard reduction burn (April 25, 2012)).

Either way, someone pays.  Under current arrangements it’s either the employer or the volunteer but in neither NSW or WA is the state offering to meet the costs of the volunteer’s wages.  That may change given the current debate during the extended 2019-2020 fire season.

Other jurisdictions

Most states and territories have employment protection provisions similar to the NSW legislation though they do not require a formal declaration of an emergency or that the employment protection provisions apply.  The exceptions appear to be Queensland and Victoria. For the relevant provisions see:

  • Emergencies Act 2004 (ACT) s 183;
  • Emergency Management Act 2013 (NT) s 114;
  • Emergency Management Act 2004 (SA) s 33; and
  • Emergency Management Act 2006 (Tas) s 57.

The obligation to keep paying volunteers appears to be unique to Western Australia.

I thank my correspondent for drawing the Emergency Management Act 2005 (WA) s 92(2) to my attention.

Categories: Researchers

What is a ‘national emergency’?

25 December, 2019 - 20:04

There have been demands that the Prime Minister declare that the current fire emergencies represent a national emergency.  For example, Laura Tingle (‘Bushfire emergency reveals Scott Morrison’s leadership failure not just climate policy vacuum7:30 (Online) 14 December 2019) said:

Yes, Prime Minister, it is a national disaster … What’s more, we should be watching the Government “in action” and “dealing with the issues that the Australian people are facing”.
But as plenty of people have observed, that has not been happening, or appearing to happen.”

Senator Sarah Hanson-Young said (Facebook, 20 December 2019):

As soon as the Prime Minister returns to Australia, he must declare a National Emergency and convene an emergency summit of the State Premiers, Emergency Chiefs and health professionals.

This begs the question of ‘what is a national emergency and what would such a declaration mean?’  The answer is that the Commonwealth has no overarching emergency management legislation. There is no power to declare a ‘national emergency’ and the declaration, if made, would have no legal effect or impact.  Unlike a declaration at state level it would not trigger any extraordinary powers or authority or release any emergency funds.  The declaration, if made, would at best be symbolic.

Symbolism is not necessarily a bad thing.  During the 2009 Victorian ‘Black Saturday’ bushfires the emergency managers did not give consideration to declaring a state of emergency on the basis that it would not add anything in terms of power and resources.  There was no declaration as a declaration was not required. The 2009 Victorian Bushfires Royal Commission (2009 Victorian Bushfires Royal Commission, Final Report Summary, p. 8) said:

Even if practical cross-agency and community cooperation was already in evidence and no additional coercive powers were needed, such a declaration would have recognised the gravity of the situation and might have sharpened emergency agencies’ focus on community safety and warnings.

There is some residual power in the Commonwealth to deal with emergencies that are truly national in scale and that, because of that scale, only the Commonwealth can deal with.  In Pape v Commissioner of Taxation [2009] HCA 23, [233] Gummow , Crennan and Bell JJ said ‘The Executive Government is the arm of government capable of and empowered to respond to a crisis be it war, natural disaster or a financial crisis on the scale [of the Global Financial Crisis]’.  In that case the executive government (the Prime Minister and Cabinet) can act to take control of the disaster even without legislative authority.

In Pape’s case four of seven judges accepted that the Global Financial Crisis was a crisis of such scale that the Executive could Act to appropriate money from consolidated revenue to pay us all sums up to $900 per person to stimulate the economy.  That was accepted, in part, because no-one challenged that question of fact.

The dissenting judges, however, were reluctant to leave it to the Commonwealth to decide for itself what is a national emergency. To do so would allow the Commonwealth to expand its authority beyond the distribution of powers set out in the Constitution.  Justices Hayne and Kieffel JJ said (at [353]):

… if it is to be for the Executive to decide whether there is some form of “national emergency” (subject only to some residual power in the Court to decide that the Executive’s conclusion is irrational), then the Executive’s powers in such matters would be self-defining.

Heydon J said (at [551]):

The truth is that the modern world is in part created by the way language is used.  Modern linguistic usage suggests that the present age is one of “emergencies”, “crises”, “dangers” and “intense difficulties”, of “scourges” and other problems.  They relate to things as diverse as terrorism, water shortages, drug abuse, child abuse, poverty, pandemics, obesity, and global warming, as well as global financial affairs.  In relation to them, the public is endlessly told, “wars” must be waged, “campaigns” conducted, “strategies” devised and “battles” fought.  Often these problems are said to arise suddenly and unexpectedly.  Sections of the public constantly demand urgent action to meet particular problems.  The public is continually told that it is facing “decisive” junctures, “crucial” turning points and “critical” decisions.  Even if only a very narrow power to deal with an emergency on the scale of the global financial crisis were recognised, it would not take long before constitutional lawyers and politicians between them managed to convert that power into something capable of almost daily use.  The great maxim of governments seeking to widen their constitutional powers would be:  “Never allow a crisis to go to waste.”

That is in the absence of any legislative authority, a declaration by the Prime Minister that this is a ‘national emergency’ and for the Prime Minister to then seek to exercise some national authority would be to extend the power of the Commonwealth beyond that provided for in the Australian Constitution.

And if there is a power to deal with a national emergency it begs the question of whether this is one.  Heydon J said (at [550]) the power to deal with a national emergency (in that case a national fiscal emergency):

… depends on satisfaction of a factual pre‑condition.  That pre-condition is that the emergency is only capable of being promptly and appropriately met by Commonwealth action.

It is unclear, given the response by the state agencies including coordinating Commonwealth and international assistance, what the Commonwealth would or could add that is not already being provided.

The Commonwealth does have emergency plans and frameworks in place (see Department of Home Affairs Emergency management (5 August 2019)).  This includes COMDISPLAN which ‘explains how the Australian Government responds to requests for assistance from state and territory governments responding to a disaster’.  The Commonwealth government is responding to those requests (see for example Defence continues bushfire support (25 December 2019)).  This Defence Aid to the Civil Community ( or ‘DACC’; see The Australian Defence Force – Defence Aid to the Civil Community (DACC) and Defence Force Aid to the Civil Authorities (DFACA) (October 21, 2013)) provides Commonwealth resources but control of the response remains with the state authorities.

In work done for the Bushfires and Natural Hazards CRC (The Potential Role of the Commonwealth in Responding to Catastrophic Disasters (April 2019)) Andrew Gissing, Cameron Moore and I:

… argued that a disaster where a state government is overwhelmed so that the state itself is at risk of collapse and there is no effective state government would be a national catastrophic disaster that would justify Commonwealth intervention in the affairs of the state in order to restore effective state government. What disaster, short of the collapse of state government, would be sufficient for direct Commonwealth action cannot be conclusively defined.

There is no suggestion that the current fires are going to overwhelm the states so why they are an event that ‘is only capable of being promptly and appropriately met by Commonwealth action’ is unclear.  In the absence of any definition of a national emergency, agreed to by the States and Territories, it is not at all clear what the Commonwealth could do, if a ‘national emergency’ was declared, that the Commonwealth cannot already do.

‘Hard cases make bad law’.  This is not a ‘case’ in the legal sense, but the fires are a hard, dramatic and emergency situation but responding to ‘this’ emergency is likely to create ‘bad law’ for future emergencies. No doubt we can look forward to post event inquiries from these fires – whether there is one in each state or a Commonwealth led inquiry (such as that that followed the 2002-03 fire season; House of Representatives Select Committee into the recent Australian bushfires A Nation Charred: Report on the inquiry into bushfires (23 October 2003)).  That inquiry may be the place to consider what, if anything in the response was missing and that could only be provided by the Commonwealth and to consider then what a national emergency looks like and what powers and authority needs to be vested in the Commonwealth to allow it to take the lead in an emergency that threatens the nation.

Conclusion

There is no legislation to allow the Prime Minister or the Governor-General to declare a National Emergency.  In the absence of that legislation the only value of such a declaration is symbolism. A symbolic declaration may be important and useful, but it should be understood that is all it would be.

There is, in the executive power of the Commonwealth, some residual power to allow the executive government to step up and deal with a truly national emergency but there is no reason to think the current fire emergencies threaten the existence of either the States or the Commonwealth to meet the necessary threshold for such an emergency.

Further reading:

Categories: Researchers

Thank you and best wishes for the season

22 December, 2019 - 21:04

We are all aware that Australia is facing extreme fires in almost every state and territory.  Those fires are being fought by volunteer and paid firefighters and supported by volunteers and staff from all the emergency services, non-government organisations, the Australian Defence Force and the whole of government.  Many, many people will be away from their families this Christmas day and their holiday plans will be disrupted.  That is as nothing compared to those who have lots homes or loved ones during the current emergencies.  Of course some of those who have lost everything have also been out as part of the response, so they are doubly affected.

As Australian Emergency Law I extend my gratitude and thanks to everyone involved in the current response and thank you all for your service at a time that is usually festive holidays.

I wish everyone who reads this blog, whether in the emergency services or not and whether currently responding or not, all the very best for the holiday period. I hope you do get time to spend with family and loved ones and that you stay safe.

I look forward to continuing to report on legal developments across 2020.

Best wishes

Michael Eburn

Categories: Researchers

Court of Appeal upholds verdict in favour of injured Queensland police officer/rescuer

18 December, 2019 - 13:39

I have previously reported on [Name Redacted] v AAI Limited [2019] QSC 7 (see Deceased driver liable for police officer’s PTSD (February 1, 2019)). The essence of the case was that a police officer who was first on scene at an accident attempted to keep a critically injured man alive pending the arrival of paramedics.  When paramedics did arrive they indicated that the person’s injuries were not survivable and the plaintiff took the victim’s mother to say goodbye to her son on the roadside.  Notwithstanding 20 years in the police force this was the first time he had been so closely involved with a dying person. Given the age of his own children he couldn’t help but superimpose his own son’s face on his memory of the deceased and he developed Post Traumatic Stress Disorder.

Police and other rescuers see many tragic incidents and attributing PTSD to one is difficult if not impossible but in this case the evidence was that it was this event that caused his symptoms and led to the officer being permanently unfit to return to policing.  He sued the deceased driver (really the insurer) alleging that the driver was liable under common law negligence for his PTSD.  The officer was successful at first instance and received a verdict for damages in excess of $1m.  AAI appealed to the Court of Appeal.  On 10 December 2019 the Court of Appeal (Sofronoff P and Philippides and McMurdo JJA) unanimously rejected the appeal and upheld the verdict in favour of the injured officer: AAI Limited v [Name Redacted] [2019] QCA 293.

Sofronoff P (ie President Sofronoff, in effect the Chief Judge of the Court of Appeal) delivered a judgment which the other two judges agreed with. He said (at [10]-[11]):

The appellant’s written outline of argument said:

“This appeal; as did the trial; raises a novel and policy laden question – whether tort law in Australia should recognise for persons who in the course of their occupation are exposed to the highly distressing aftermath of a traumatic event an entitlement to recover for pure psychiatric injury against the person whose lack of care caused the traumatic event, the aftermath of which they were professionally responding to.

Put in that way, the appellant must fail.

Both the appellant and respondent agreed that the law would allow the plaintiff/respondent to recover as it was the negligence of the deceased driver that caused the plaintiff’s injuries.  The appellant’s case (at [13]-[17]) was that:

… despite proving the conventional elements of the cause of actions, the respondent’s status as a police officer denied him a right to recover because of “policy considerations” which render the foreseeability of injury “unreasonable”.

The appellant put forward three policy considerations that were said to deny the existence of liability.

First, it was submitted that if a police officer could recover then that would create an indeterminate class of prospective plaintiffs which would include police officers, firefighters, paramedics, doctors and nurses, as well as some non-medical staff at a hospital.

Second, it was said that an “extension of the duty of care” to this class would constitute “an inapt tool” as a means of responding to loss constituted by psychiatric harm. An “obvious and apt tool” to deal with the prospect of such harm is by recourse to the liability of the employer of these prospective plaintiffs.

Third, it was submitted that, if the respondent could recover, then a person in the position of the respondent in this case will recover damages if the person who caused the damage is insured but will not recover if the person responsible is not wealthy or insured.

Whilst not described this way that sounds like AAI were arguing for what the American’s call the ‘firemens’ rule’; that is a rule that a professional rescuer cannot sue the person who created the very emergency that they are there to respond to – see http://www.firelawblog.com/category/firemens-rule/

His Honour reviewed the earlier case law (including Wicks v State Rail Authority discussed on this blog at Rescuers and nervous shock or mental illness; Wicks and Sheehan v SRA (June 17, 2010).  He concluded (at [30]):

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

Discussion

In an earlier post, commenting on a US court case (Another source of compensation for injured rescuers (November 26, 2015)) I said:

… it’s another example of a person being held responsible for the consequences of their actions which include exposing rescuers to danger.  For rescuers, particularly those that may be affected by various limitations in workers compensation laws, it may mean that they have an alternative source of compensation to make good losses that they suffer in the course of their duties.

In my post on the original decision in this case (Deceased driver liable for police officer’s PTSD (February 1, 2019)) I said:

In terms of developing the law, first responders suing those who negligently cause the accident and thereby expose the responders to risk of injury is not new (but it’s not common; see Cop sues offender’s family” (May 22, 2013); see also Police officer sues mental health patient for battery (December 18, 2018)).  This case confirmed that the rule that a person owes a duty of care, not only those directly injured by their negligence, but also those that come to the rescue, is not limited to physical injury cases. A plaintiff has a duty to avoid exposing people to a foreseeable risk of psychiatric injury and that extends to not driving a car negligently so as to force responders to attend, witness the carnage and become active parties in their own (or someone else’s) death.  If the rescuer can show that the accident caused injury, physical or psychiatric, they can sue to recover their damages.

The Court of Appeal has confirmed that outcome.  A ‘person owes a duty of care, not only those directly injured by their negligence, but also those that come to the rescue, [and that] is not limited to physical injury cases.’

That is not to say that suing for psychiatric injury will be easy. First responders, particularly those with long careers will have been exposed to many traumatic events that build up over time.  Being able to say that it was ‘this accident’ and ‘this defendant’ that caused symptoms to manifest may be difficult, but in the right circumstances not impossible.

Rescuers, paid and volunteer, should keep in mind that if they are injured as a result of their response to an event, the person that caused the accident owed them a duty of care and that it may be worth considering a common law action if workers or volunteer compensation schemes are insufficient. Of course, anyone would need to obtain specific and detailed legal advice before running off to court!

See also:

Categories: Researchers

‘Clearing up confusion: new amendments to Queensland’s vegetation clearing provisions for fire management’

18 December, 2019 - 12:58

Brent Liillywhite and Lauren Hickling, lawayers with Corrs Chambers Westgarth report on amendments to Queensland law with respect to vegetation clearing to establish fire breaks.  You can see the original post on the Corrs Chambers Westgarth blog – here. They say:

With an unprecedented bushfire season upon us, much of the country blanketed by thick smoke, and weather conditions not improving, the clearing of vegetation for fire management activities has never been more topical.

The Planning (Spit Master Plan and Other Matters) Amendment Regulation 2019 (Qld) commenced on 6 December 2019, providing much needed clarification to the regime around approvals for vegetation clearing in Queensland.

The regime for vegetation clearing in the Planning Act 2016 (Qld) and the Planning Regulation 2017 (Planning Regulation) is highly complex and multi-layered. The new amendments implemented by the Queensland Government provide clarity by inserting a new section 20A into Schedule 6 Part 3, and a new section 13 in Schedule 7 of the Planning Regulation.

The amendments make it clear that operational work for native vegetation clearing is accepted development and does not require a development permit where the clearing:

  • is on the types of land specified (eg. freehold land or indigenous land); and
  • it is necessary for:
    • establishing or maintaining a necessary firebreak to protect infrastructure (other than a fence, road or vehicular track) where the maximum width of the firebreak is equal to 1.5 times the height of the tallest vegetation next to the infrastructure, or 20 metres, whichever is the wider; or
    • establishing a necessary fire management line where the maximum width of the clearing for the fire management line is ten metres.

The wording of these exceptions is consistent with parts (a) and (b) of the definition of ‘essential management’ in the current Planning Regulation.

The amendments also make clear that operational work that fits into the above categories cannot be made assessable development by a local planning scheme. The changes should provide increased certainty for landholders looking to clear their land for these purposes, particularly in light of the current bushfires throughout the State.

 

Categories: Researchers

Queensland paramedic acquitted after bizarre prosecution

18 December, 2019 - 12:51

A Queensland paramedic was acquitted my Magistrate Braes in the Magistrates Court at Mareeba in what I can only describe as a bizarre prosecution.  I have previously commented on how it can be impossible to find the details of a magistrate’s decision (see Accessing a judge or magistrate’s reasons for decision (November 18, 2016) but this is a rare case when the Magistrate’s decision has been reduced to writing and published as Queensland Police Service v Russell-Brereton [2019] QMC 19.  Because it is a decision in a Magistrate’s court, the Magistrate does not have the sort of time that a court of appeal judge has to write out the reasons for decision.  The Magistrate wrote his decision without the benefit of a transcript ([8]).  What follows is that the facts are not set out with the sort of clarity one would expect from a judge after a trial or appeal, so some of the facts, and the role of some of the witnesses has to be inferred from the judgment.  With that limitation in mind what we are told (at [15]) is:

At the commencement of the trial the prosecutor gave a brief opening of the prosecution case. She said that on the 23rd September 2017 at Mount Surprise the defendant whilst driving a Queensland Ambulance Service vehicle to a call out collided with a quad bike and that the defendant claims this was due to brake failure. She said that it would be alleged by the prosecution that during the time the defendant and passenger waited for the tow truck the QAS vehicle was wilfully interfered with by the defendant. She said that it would be alleged the defendant’s motive for interfering with the vehicle was due to the previous collision with a quad bike. She said it would be alleged that this collision was not due to brake failure but in fact due to him not driving to the conditions of Springfield Road. The defendant had stated the cause of the collision as brake failure and needed to make the vehicle look as though that is what had occurred.

The defendant was charged with one count of wilfully interfering with the mechanism of the vehicle contrary to the Transport Operations (Road Use Management) Act 1995 (Qld) s135.

In summary the evidence was

  • At the time of the accident, the defendant said (at [20]) to Mr Anderson, a trainee paramedic that he was working with, that the brakes had failed.
  • After the accident, Mr Anderson was asked to drive the vehicle but apparently did not because of his concern about the brakes. At [13] it is said “Mr Andrews who did not drive the vehicle… said the pedal went straight to the floor’.  There is some discrepancy about the dates and when he might have observed the pedal going ‘to the floor’ so it’s not clear if that observation was immediately after the accident or two days later.
  • Mr Thompson, a QAS paramedic was dispatched to meet the defendant and Mr Anderson. He observed that the damaged ambulance was parked with bonnet open. He observed (at [24]) that ‘the lid off the brake reservoir was stuck under the brake pipes, and there were splashes of brake fluid around the engine bay.’
  • Mr Major (at [13]) ‘inspected the vehicle on the 30th October, a week after the event. He said the brakes were working in two out of the four wheels’. It is not clear who Mr Major was or his qualifications but presumably he was engaged either by QAS or Queensland Police to inspect the vehicle.
  • Mr Hutchinson who is described (at [55]) as ‘a Queensland Ambulance Service business manager and also a qualified motor mechanic’ said (at [13]) ‘“When Merc brakes actually fail they stay failed.” He inspected the vehicle in Cairns a few days after the event. He did not drive it’. One can infer that his conclusion was the fact that the brakes worked when he inspected it meant they could not have failed on the date of the accident as they would ‘stay failed’.
  • An inspection sometime after the accident revealed (at [52]) that ‘the nuts coming out of the master cylinder were loose’.

As the Magistrate noted (at [27]) ‘There is no direct evidence the defendant interfered with the mechanism of the vehicle at all. The prosecution case is entirely circumstantial.’  A circumstantial case can establish a person’s guilt but only where ‘the only rational inference that could be drawn from the circumstances’ ([31]) is that the person committed the offence alleged.  At [35] His Honour summed up the case that the prosecution asked him to find.  He said:

I am asked to find; that after a collision with a quad bike, which occurred on a rough gravel road in the darkness whilst travelling to a code one emergency in a Mercedes Sprinter Van, (a vehicle hardly suited to the task), and where it was so dark the passenger was not sure where the road went, the defendant; after causing the crash, acted to exculpate himself from the fallout from the crash with an instrument, which I am to infer was a tool of some sort, (there being no evidence of the existence of such a thing), acted with criminal intent by interfering with the mechanism of the ambulance.

His Honour said (at [34]):

The defendant is an experienced long serving paramedic, not the sort of person to act in the manner alleged, and risk his career over an event which could be explained by the urgency of the matter, the state of the road, the unsuitability of the van for the conditions and the lights of the quad bike.

The prosecution, on the other hand, was (at [40]) based on a ‘conspiracy theory’:

Mr Morgan, a Senior Operations Supervisor at Queensland Ambulance was initially sceptical of the defendant’s story, in fact he said in evidence “I was not convinced the brakes failed but I was not there. Nor in my mind. From my experience.” The die was therefore cast…

And later (at [63]):

This is a circumstantial case which grew out of the suspicion harboured by Mr Morgan who, whilst not being there, was not convinced the brakes had failed.

He said (at [39]):

It appears to me that this is a case where people who have no direct involvement in the matter have jumped to conclusions without any direct evidence and then have been stuck fast to that opinion, never stopping to evaluate the evidence or question their initial assumption.

The defendant paramedic was acquitted.

Discussion

That the case proceeded to a hearing, with 14 witnesses ([5]), seems extraordinary.  The fact that Mr Thomson observed the lid of the brake fluid reservoir had come off and there was brake fluid sprayed around the engine compartment would have been enough to stop the police taking further action.

Many might comment on the ambulance leadership who having formed a view that it couldn’t have been brake failure and then ‘stuck fast to that opinion’ but it was police, not QAS that laid the charge and continued the prosecution.  The point of independent investigators (like independent judges) is to ensure that those too close to the matter do not get to judge it.  Why the police bought into the conspiracy theory is not explained particularly when police who first attended

… were not alerted to a suspicion although they were told upon the arrival of Mr Anderson and the defendant they had had a complete brake failure and had hit a quad bike on the way [and] Sergeant Smith who spoke to Mr and Mrs Dunstone [the rider of the quad bike] at the scene of the quad bike collision also took no action to breathalyse the defendant, inspect the vehicle, nor take the vehicle into his possession.

The saving grace is that Mr Russell-Brereton was acquitted but only after 2 years (the accident occurred on 23 September 2017, judgment was delivered on 11 December, 2019) and no doubt at considerable cost as he was represented by a barrister and probably also a solicitor.  One cannot know what impact that has had on his career or his commitment to QAS.

Categories: Researchers

‘Nurse’ as protected title – UK and Australia

16 December, 2019 - 13:14

Today’s correspondent asks ‘Would the situation be different in Australia?’  Context for the question is provided by a link to a story out of the UK: Ian Snug and Esther Beadle ‘Newly-elected MP falsely claims he is a ‘mental health nurse’NursingNotes (Online) 13 December 2019.

The gist of the story is that newly elected MP ‘Ian Levy claims in a series of pre-election social media posts that he works as a full-time “mental health nurse” with 30 years in the NHS’.  He is not however a registered nurse but ‘a healthcare assistant on an inpatient mental health rehabilitation unit’. The story says ‘Only the term “Registered Nurse” is a protected title, so while many claim his actions are misleading, they do not violate the Nurses Registration Act.’

With that context I infer that my correspondent’s question is really would similar behaviour violate the Australian Health Practitioner Regulation National Law.  Section 113 of the National Law says:

(1) A person must not knowingly or recklessly—

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

(b) take or use a prescribed title for a health profession, in a way that could be reasonably expected to induce a belief the person is registered under this Law in the profession, unless the person is registered in the profession.

For nursing the protected titles (s 113(1)(a)) are ‘nurse, registered nurse, nurse practitioner, enrolled nurse’.  The protected ‘title for a health profession’ (s 113(1)(b)) is ‘nursing’.

I have previously argued that the use of descriptors such as ‘student’ or ‘retired’ would not breach the Act (see NSW students and retired officers referred to as ‘paramedic’ (August 14, 2019)).  Calling oneself a ‘student nurse’ or ‘retired nurse’ (or paramedic) seems to me to be explicitly trying to indicate that the person is not registered.  That is putting ‘student’ or ‘retired’ in front of nurse (or paramedic) could not ‘be reasonably expected to induce a belief the person is registered…’

The same is not true with the addition of words like ‘mental health’ or other words that may suggest a speciality (eg ‘emergency nurse’, ‘palliative care nurse’, ‘aged-care nurse’ etc).  In fact s 113(3) says the offence can be proved ‘whether or not the title is taken or used with or without any other words’. Adding the words ‘mental health’ before the word ‘nurse’ does not detract from the fact that the person is using the protected title ‘nurse’.

Conclusion

We are told in the UK story that ‘‘Only the term “Registered Nurse” is a protected title…’  That is not the case in Australia where the term ‘nurse’ is also a protected title.  If a person used the term ‘nurse’, whether with or without other words such as ‘mental health’ then he or she commits an offence if the circumstances in which they used the title ‘nurse’ ‘could be reasonably expected to induce a belief the person is registered’ under the Health Practitioner Regulation National Law. 

In short, the situation would be different in Australia.

Categories: Researchers

Risks of communicable disease during CPR at work

16 December, 2019 - 12:55

Today’s correspondent poses a scenario and questions about doing CPR without a face mask. The scenario is:

… a child is unconscious not breathing, childcare educator attempts CPR without any PPE i.e. Face shield. Educator contracts communicable disease.

Questions:

  • Are there any consequences related to work cover?
  • Is a faceshield required to be used under WHS?

The Australian and New Zealand Resuscitation Councils, In ANZCOR Guideline 5 – Breathing (January 2016) say (p. 4; references omitted):

No human studies have addressed the safety, effectiveness, or feasibility of using barrier devices to prevent person-to-rescuer contact during rescuer breathing.  Nine clinical reports advocate the use of barrier devices to protect the rescuer from transmitted disease: three studies showed that barrier devices can decrease transmission of bacteria in controlled laboratory settings.

The risk of disease transmission is very low and need not deter rescue breathing without a barrier device. If available, rescuers should consider using a barrier device.

In ANZCOR Guideline 8 – Cardiopulmonary Resuscitation (CPR) (January 2016) they say (p. 3; references omitted):

The risk of disease transmission during training and actual CPR performance is very low. A systematic review found no reports of transmission of hepatitis B, hepatitis C, human immunodeficiency virus (HIV) or cytomegalovirus during either training or actual CPR when high-risk activities, such as intravenous cannulation were not performed. If available, the use of a barrier device during rescue breathing is reasonable. After resuscitating a person, the rescuer should reassess and reevaluate for resuscitation-related injuries

Work Health and Safety law (eg Work Health and Safety Act 2011 (NSW) s 19) requires a person conducting a business or undertaking to:

… ensure, so far as is reasonably practicable, the health and safety of:

(a) workers engaged, or caused to be engaged by the person, and

(b) workers whose activities in carrying out work are influenced or directed by the person,

while the workers are at work in the business or undertaking.

In determining what is ‘reasonably practicable’ regard must be had to (s 18):

(a) the likelihood of the hazard or the risk concerned occurring, and

(b) the degree of harm that might result from the hazard or the risk, and

(c) what the person concerned knows, or ought reasonably to know, about:

(i) the hazard or the risk, and

(ii) ways of eliminating or minimising the risk, and

(d) the availability and suitability of ways to eliminate or minimise the risk, and

(e) after assessing the extent of the risk and the available ways of eliminating or minimising the risk, the cost associated with available ways of eliminating or minimising the risk, including whether the cost is grossly disproportionate to the risk.

We can see that the risk of contracting a communicable disease has been determined to be ‘very low’. That is relevant under s 18(a).  The consequences of contracting a communicable disease, the consequence if the very low risk occurs would be high. The use of a ‘barrier device during rescue breathing’ has been assessed as a ‘reasonable’ response to the risk and no doubt is not very expensive.

Amongst other things a PCBU has to provide relevant equipment including first aid equipment (Work Health And Safety Regulation 2017 (NSW) r 42) and training (Work Health and Safety Act 2011 (NSW) s 19(3)(f)).  The Safe Work Australia Model Code of Practice: First aid in the workplace (July 2019) recommends that every work place first aid kit contains ‘Resuscitation face mask or face shield’

If a ‘childcare educator’ is expected to provide first aid to a child in their care that training would or should be at least a course in ‘Provide First Aid’ that would, from my experience, include some training in the need for hygiene and the use of barriers in performing CPR. With that training and the low risk it is then up to rescuers to decide if they are willing to perform mouth-to-mouth, mouth-to-nose or mouth-to-stoma resuscitation.

Let me then turn to the questions:

  • Are there any consequences related to work cover [if a childcare educator attempts CPR without any PPE i.e. Face shield]?

Assuming that it is part of the person’s duties to care for the child (which seems axiomatic) then they contracted the disease at work and would be eligible for no-fault workers compensation. That is not an issue.

In terms of the criminal offence of a PCBU failing to provide measures to manage the risk to employees there could be an issue. As noted, there is a low risk of transmission, but the consequences may be dramatic and the cost of providing face shields is low.  Equally people expected to do first aid should have some training and most first aid kits have a barrier for the purpose.  If the PCBU has failed to ensure that people are trained so the rescuer can honestly say “I didn’t know of such risks or of such barriers” (eg the PCBU provides in house CPR rather than getting an RTO to provide a first aid course) or the PCBU fails to provide standard first aid kits so the rescuer doesn’t have the option of a barrier if he or she wanted to use one, then yes there could be an issue.

  • Is a faceshield required to be used under WHS?

I think that would probably be too strong given the risks identified by ANZCOR and of course the risk to the patient if there is no effective CPR.  I would think the strongest one could say is that faceshields should be made available to staff (eg in first aid kits) and staff should be trained in their use (as they should be trained in all first aid equipment). I think it would go too far to say that the use is mandatory such that the PCBU or the staff member commits an offence if they fail to use one.

Categories: Researchers

Running it all past the lawyers – creating legal privilege or sham

13 December, 2019 - 16:08

Today’s correspondent has:

… recently started to notice organisations that I work with begin to embed into crisis and emergency policies, statements about making decisions under legal professional privilege or assessing the emergency to determine if legal professional privilege needs to be invoked.  (There is often no guidance on how this policy approach is actually applied during the emergency)

Some of the organisations applying this are critical infrastructure owners who are included as part of State EM plans and their plans are written in collaboration with police and emergency services to align with State EM legislation.

I know a colleague who was deployed to Canada to assist with managing fires and the first person they were briefed by on arrival was the Govt lawyer who outlined the requirements for decision making and record keeping.  They were required to sign a letter to formally engage the lawyer and sign an agreement about how information is handled as part of the response and how all information/ documentation now was considered subject to legal professional privilege and they could not disclose information without legal approval.  I asked if that impacted the ability to effectively manage the incident and there were some challenges in sharing information with third parties that in Aust he would have freely shared updates with.  There was also the issue that all work generated during the day was taken and sealed and could not be referred to again, therefore each day was like starting a new and having to remember where they left off the day before.

I wonder whether organisations in Australia are being too risk averse by applying legal professional privilege as part of the management of an emergency when done as part of a wider Govt controlled response; or has this always been the case but just not applied as openly as it appears to be now or is this an increasingly new trend?

I would appreciate any thoughts you have or any reading you could direct me to.

This is not something I have heard of so I cannot say whether ‘this always been the case …or is this an increasingly new trend’.  I can say that, in my opinion, yes ‘organisations in Australia are being too risk averse [if they are attempting to fabricate situations to allow a claim for]… legal professional privilege as part of the management of an emergency’.

Legal professional privilege is a rule of evidence, but it is more than that.  To start with the rule of evidence, if a matter is privileged the owner of the privilege (in the case of legal professional privilege, the client of a lawyer) can resist having to produce privileged material to ‘the other side’ or to a court.  There is a uniform Evidence Act in force in the New South Wales, Victoria, Tasmania, the ACT, the Northern Territory and the Commonwealth (see https://www.ag.gov.au/LegalSystem/Pages/Uniform-Evidence-Acts-comparative-tables.aspx).   For ease of reference I will refer to the Commonwealth Act in the discussion below.

The Evidence Act 1995 (Cth) refers to client legal privilege to make it clear that the privilege belongs to the client, not the lawyer.  The critical section is s 118 that says:

Evidence is not to be adduced if, on objection by a client, the court finds that adducing the evidence would result in disclosure of:

(a) a confidential communication made between the client and a lawyer; or

(b) a confidential communication made between 2 or more lawyers acting for the client; or

(c) the contents of a confidential document (whether delivered or not) prepared by the client, lawyer or another person;

for the dominant purpose of the lawyer, or one or more of the lawyers, providing legal advice to the client.

The critical issue is that the communication has to be made, or the document prepared, ‘for the dominant purpose of … providing legal advice to the client’.

Client legal privilege is more than just a rule of evidence.  It should govern all aspects of a lawyer/client relationship. What you tell your lawyer, in confidence, should remain confidential. This is not some scam to benefit lawyers but a fundamental cornerstone of the common law.  In criminal cases the burden is on the Crown to prove any case beyond reasonable doubt.  That is to ensure that we all are protected from the excesses of the state that can bring so much more power and resources to any contest than any individual.  If they could just arrest people, let them go to their lawyer and then subpoena the lawyer there would be no burden on the Crown. Further if people cannot be honest with their lawyers many meritorious cases would not be run and equally cases without merit would be run because the lawyers could not give advice on what actually happened.

We might have no sympathy for many offenders in gaol after the Melbourne gang wars, but this principle is so fundamental that there is a Royal Commission (the Royal Commission into the Management of Police Informants) looking at the use of Ms Nicola Gobbo or ‘Lawyer X’ as a police informant. Her decision to inform on her clients was described by all the judges of the High Court of Australia as ‘fundamental and appalling breaches of [her] obligations as counsel to her clients and of [her] duties to the court’ (AB (a pseudonym) v CD (a pseudonym); EF (a pseudonym) v CD (a pseudonym) [2018] HCA 58, [10] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ)).

Further, the court said:

… Victoria Police were guilty of reprehensible conduct in knowingly encouraging EF to do as she did and were involved in sanctioning atrocious breaches of the sworn duty of every police officer to discharge all duties imposed on them faithfully and according to law without favour or affection, malice or ill-will. As a result, the prosecution of each Convicted Person was corrupted in a manner which debased fundamental premises of the criminal justice system. It follows … the maintenance of the integrity of the criminal justice system demands that the information be disclosed and that the propriety of each Convicted Person’s conviction be re-examined in light of the information. The public interest in preserving EF’s anonymity must be subordinated to the integrity of the criminal justice system.

The duty of confidentiality applies in all lawyer/client transactions.  If people cannot trust their lawyers, they cannot give honest instructions and if they cannot give honest instructions, they cannot get advice on their legal rights. It is not just a tool to allow lawyers to ‘get the guilty off’. If lawyers come to court without full knowledge of their client’s affairs in some cases meritorious cases will be lost; and other cases, without merit will be run.

The NSW Model Litigant policy says

3.1 The obligation to act as a model litigant requires more than merely acting honestly and in accordance with the law and court rules.  It also goes beyond the requirement for lawyers to act in accordance with their ethical obligations. Essentially, it requires that the State and its agencies act with complete propriety, fairly and in accordance with the highest professional standards. The expectation that the State and its agencies will act as a model litigant has been recognised by the Courts.

3.2 The obligation requires that the State and its agencies act honestly and fairly in handling claims and litigation by:

a) dealing with claims promptly and not causing unnecessary delay in the handling claims and litigation;…

d) where it is not possible to avoid litigation, keeping the costs of litigation to a minimum including by:

(i) not requiring the other party to prove a matter which the State or an agency knows to be true; …

g) not relying on technical defences …

Discussion

Legal privilege is an essential tool in an adversarial justice system. It is fair enough for the State or its agencies to rely on legal professional privilege when it is honestly and genuinely applicable but it serves no purposes and brings dishonour to make a sham of it.  Simply running a document past a lawyer may give rise to an argument or an attempt to obfuscate the truth but it would bring no credit to either the lawyer or their client. Further to try and manufacture a situation where the privilege can be claimed would simply delay proceedings, perhaps compel ‘the other party to prove a matter which the State or an agency knows to be true’ and would be an attempt to create a technical rather than honest argument.

The critical issue is that the communication has to be made, or the document prepared, ‘for the dominant purpose … providing legal advice to the client’.

Some documents are made for that purpose.  For example, if after the fire a landowner complained that there had been negligent conduct by the NSW RFS and wanted compensation (see for example Recovering the cost of damage by RFS (December 1, 2019)).  A summary document prepared by the RFS outlining what was done, or not done and including the opinion of the instructing officer as to the appropriateness of the decision may be prepared and delivered to the lawyers so that they can advise the RFS of any potential liability.  That document would be subject to client legal privilege.

But simply getting a lawyer to look at every document or asking volunteers to ‘sign a letter to formally engage the lawyer’ would not change the dominant purpose of communications logs, incident action plans or conversations between the members of the IMT.  To believe that this somehow creates a privilege is a non-sense.

Further a government and their agencies, as model litigants, should be disinterested in whether they are sued or not.  If a person sues and wins then they accept they did not act as required by law at the time.  If the person sues and loses then there has been a chance to test their arguments before an independent umpire.  The only difference between winning and losing is how much they pay.

Conclusion

Given the lack of litigation against emergency management agencies yes it would be my view that trying to create what appear to be fictitious arrangements to create an argument for legal privilege is to be too risk averse on the one hand, but exposing an agency to significant reputational risk on the other.  And if a court found that there were disingenuous attempts to create privilege it would no doubt put the party’s reputation at risk and may well mean a court prefers the evidence of the other party.

Where a communication occurs with a lawyer for the dominant purpose of obtaining legal advice, it is a privileged communication.  Running everything past a lawyer in the hope that it will give rise to a claim should anyone later (whether it’s the next day or the next year) want to know what happened is a sham.

 

 

Categories: Researchers