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Discussion on the law that applies to or affects Australia's emergency services and emergency management, by Michael Eburn, PhD and Barrister.
Updated: 21 min 11 sec ago

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

9 May, 2016 - 17:03

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

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

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

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

You can download the final report here.


Categories: Researchers

Allowing wildfires to burn to enjoy a hazard reduction benefit

9 May, 2016 - 12:08

This is a complex question from NSW

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Discussion

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

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

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

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

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

Conclusion

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

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

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


Categories: Researchers

Mean what you say; and say what you mean

8 May, 2016 - 14:04

 

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

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

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

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

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

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

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

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


Categories: Researchers

Transition to paramedic degree qualifications

5 May, 2016 - 15:57

A NSW Ambulance paramedic with many years service asks about the transition to degree qualifications.    My correspondent says:

When I joined the NSW Ambulance Service 13 years ago, the requirement was a Diploma of Paramedicine.  This involved an initial induction course of 7 weeks, up to 12 months on road as a probationer, another 3 weeks to do In-service 1, another 2 years on road as a level 2 or intern and then another 3 weeks of In-service 2 which we graduated with our Diploma and deemed qualified as a Paramedic with the NSW Ambulance.  This has now changed with the Paramedic degree as the entry method.  My question is: can I be discriminated against in regards to promotions, Intensive care paramedic placements etc because I don’t have the degree.  I can understand that the degree has its place and that ambulance services in Australia want professional recognition but at the same time, I’m older with family commitments and at this stage of my life I really don’t want to (or have time to) complete a degree or conversion.  How does this all add legally?

The reality is we discriminate all the time.  To discriminate is to ‘Recognize a distinction; differentiate’ (Oxford English Dictionary, online).   There is a difference between a person with a degree and one without, as there is a difference between a person with 13 years on road experience and a person just out of university.

The prohibition on discrimination is that an employer is not allowed to discriminate for any of the prohibited reasons; gender, sexual orientation, marital status etc (see for example Anti-Discrimination Act 1977 (NSW)).   So can a paramedic without a degree be ‘discriminated against’? The answer has to be ‘yes, if it’s relevant’.  If two people are applying for the same position and one has a degree and the other does not then if that’s a relevant distinction that could be grounds for preferring the degree qualified paramedic over the non-degree qualified one.   By the same token the employer may prefer to discriminate in favour of the road experience.

The transition to the degree qualification for paramedics is not unique. Nurses had to go through the same process so there are ‘grandfathering’ provisions to allow non-degree practitioners to continue their work.  For example in NSW it is now an offence for a person to call themselves a paramedic (Health Services Act 1997 (NSW) s 67ZDA and Health Services Regulation 2013 (NSW) s 19A) unless they hold either:

(a) a Bachelor of Paramedicine or a Graduate Diploma of Paramedicine conferred by a university, [or]

(b) a nationally-recognised Diploma of Paramedicine issued by a registered training organisation.

There are industrial issues here and that’s relevant to how job descriptions and selection criteria are set.  According to the Government Sector Employment Rules 2014 (NSW) the employment of a government employee ‘is to be based on an assessment of the capabilities, experience and knowledge of the person concerned against the pre-established standards for the role to determine the person best suited to the requirements of the role and the needs of the relevant Public Service agency’ (r 16). If the job in question calls for a ‘paramedic’ there should be no discrimination.  If it calls for the person to hold the degree there should be clear reasons why that is essential.   Where the position is with the state service, the Ambulance Service of NSW, a candidate who thinks they have been unfairly treated does have appeal rights (Government Sector Employment Rules 2014 (NSW) r 24).

So my correspondent is entitled to continue to use the title paramedic and one would hope an employer would not discriminate on the basis that there is no degree.  To discriminate on that basis would not breach the anti-discrimination legislation but it may breach the provisions and intention of the Government Sector Employment Act 2013 (NSW) and the Government Sector Employment Rules made under that Act.

 


Categories: Researchers

Paramedics treating children

5 May, 2016 - 13:06

This question from a ‘current bachelor of paramedic practice student’ comes in two parts.

Part 1

The Mental Health Act 2007 (NSW) s 20, states that an ambulance officer may take a person to a declared mental health facility if the officer believes on reasonable grounds that the person appears to be mentally ill or mentally disturbed and that it would be beneficial to the person’s welfare to be dealt with in accordance with this act.

  1. Does this apply even in the case of a minor under the age of 14 who appears to be displaying mental health effects that are deemed to represent a danger to themselves, others or their reputation, even in the case where the guardian makes the decision not to have the child admitted? Between the Mental Health Act and the rights of the guardian which takes precedence?

Part 2

The second part deals with a number of questions related to the Children and Young Persons (Care and Protection) Act 1998 (NSW).  We have been told that medical decisions for children under the age of 14 are the sole domain of the legal guardian. Between 14 and 16 the children have a right to make decisions regarding their healthcare treatment but that the guardians must be notified. Whilst children over the age of 16 have right to both autonomy of decision regarding their treatment and confidential privacy with respect to their health information. Provided this is accurate the questions are below.

  1. First is that the definitions of child and young person are defined as under 16yrs and 16-18yrs respectively. Does this have any impact upon the age ranges discussed in the above paragraph of this email which appear to only be in effect under certain circumstances described in chapter 13 of the act? What are the relevant age ranges and associated rights that constitute the precedent for our application of treatment for a minor?
  2. Further to this, section 9(2)(a) states that where a child or young person has the ability to form an opinion on their safety, welfare and well-being their views must be given weight. How does this play out when those views are in conflict with the views and wishes of the guardian and/or medical advice? In the context of a paramedic situation on road which party has the final say on the treatment of said minor?
  3. Section 174(1) provides that a medical practitioner may carry out emergency medical treatment on a child or young person without the consent of (a) the child or young person, or (b) a parent of the child or young person, if the medical practitioner is of the opinion that it is necessary, as a matter of urgency, to carry out the treatment on the child or young person in order to save his or her life or to prevent serious damage to his or her health. This is further supported by section 175 subsection 2 (a) with respect to cases of special medical treatment.  Does an ambulance officer qualify under the (unspecified) definition of a medical practitioner? The Australian Institute of Health and Welfare’s (AIHW) definition is that a medical practitioner is a person whose primary employment role is to diagnose physical and mental illnesses, disorders and injuries and prescribe medications and treatments that promote or restore good health. Under this definition the argument is that an ambulance officer does qualify and as such, in the case of an illness which is life threatening or has the likelihood of causing serious harm, we have the right to treat a minor with, or against the wishes of the child and/or guardian.

I was hoping you could provide some clarification. Additionally I realise that this email hardly qualifies as a short and succinct and I wanted to thank you in advance for taking the time on any of this, especially when this is simply for the case of my own curiosity and passion.

Well it’s certainly correct that this question or questions is not ‘short and succinct’ but it’s interesting enough.

Part 1.

Section 20 of the Mental Health Act 2007 (NSW) says:

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

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

That section makes reference to a ‘person’ not an ‘adult’ or a ‘child’ or a ‘young person’; it is not age specific.   That the Act applies to children is confirmed by s 71 that lists who might be the ‘designated carer’ for a person subject to treatment under the Act.  A designated carer includes the parent of a child or if the child is over 14 a person nominated by them as their designated carer.

So the first answer is

Yes s 20 does apply in the case of a minor under the age of 14 who is mentally ill or ‘mentally disturbed’ (whatever that might mean) and where the paramedic/ambulance officer is of the view that ‘it would be beneficial to the person’s welfare’ for them to be treated under the Act. 

Note that the key criteria for involuntary treatment is that it is required (see ss 14 and 15):

(a) for the person’s own protection from serious harm, or

(b) for the protection of others from serious harm.

The Act doesn’t refer to ‘reputation’ but one can imagine that in some circumstances, damage to reputation could be a serious harm.

Does the section apply in the case where the guardian makes the decision not to have the child admitted? Between the Mental Health Act and the rights of the guardian which takes precedence?

Section 20 allows an ambulance officer to transport a patient to a mental health facility, they don’t have to go to the nearest casualty department.   The section doesn’t specifically say that the person can be detained without their consent or even in the face of their objection to treatment but the section has to be read in context.  The section appears in ‘Chapter 3, Part 2 – Involuntary Detention and Treatment in Mental Health Facilities’ and has to be read with s 18 which says

A person may be detained in a declared mental health facility in the following circumstances: … (b) after being brought to the facility by an ambulance officer…

So I think we can safely infer that the section anticipates treatment with consent, treatment in the absence of consent, and treatment in the face of an express refusal, subject always to the criteria for involuntary admission set out in Chapter 3, Part 1 – Requirements for Involuntary Admission, Detention and Treatment and s 68 Principles for care and treatment.

If a parent refuses consent for treatment of their child who is aged under 14, then the normal issues have to be considered.  Is the parent competent and informed?  Are they making the decision in the best interests of the child or for some other reason (Secretary of the Department of Health and Community Services v JWB and SMB (1992) 175 CLR 218 (‘Marion’s case’))– eg they may want to refuse treatment because it is inconvenient to go to hospital now or they would rather the child was taken to a hospital closer to home?  Is that acting in the child’s best interests or their own?  If the parent is not competent or informed or not acting in the child’s best interests, then there is no valid refusal and both the Act and the doctrine of necessity would justify treatment even in the face of their objection.

If the parent’s do understand the situation and genuinely believe that they are acting in the child’s best interest, the whole point of the Act is to allow, in restricted circumstances, involuntary treatment.  If the paramedic believes that the situation is such that immediate detention and treatment is required, then such action would be justified.  Fundamentally ‘Chapter 3, Part 2 – Involuntary Detention and Treatment in Mental Health Facilities’ is, as the title says, about ‘involuntary’ detention, that is detention where the patient (or their parent) doesn’t want it.

Of course just because a person can be detained doesn’t mean that they should be.  A young person may be mentally ill or mentally disordered but it may be in their best interests to go home with mum and/or dad and seek treatment that way rather than be bundled into an ambulance, perhaps with police involvement and with obvious conflict between the paramedics, police and the parents.  If the parents seem competent and reasonable and have generally taken care of their child, it may be best to leave the matter in the hands of the parents.  That would be consistent with the philosophy of the Act, that ‘people with a mental illness or mental disorder should receive the best possible care and treatment in the least restrictive environment enabling the care and treatment to be effectively given’ and ‘any restriction on the liberty of patients and other people with a mental illness or mental disorder and any interference with their rights, dignity and self-respect is to be kept to the minimum necessary in the circumstances’ (s 68).

But if the circumstances of s 20 have been met, which requires an opinion that ‘the person appears to be mentally ill or mentally disturbed and that it would be beneficial to the person’s welfare to be dealt with in accordance with this Act’ (rather than being left in the care of his or her parents) then as between the Mental Health Act and the rights of the guardian it is the Act which prevails.

Part 2

The Minors Property and Contracts Act 1970 (NSW) s 49 says:

(1) Where medical treatment or dental treatment of a minor aged less than sixteen years is carried out with the prior consent of a parent or guardian of the person of the minor, the consent has effect … as if … the minor were aged twenty-one years or upwards and had authorised the giving of the consent.

(2) Where medical treatment or dental treatment of a minor aged fourteen years or upwards is carried out with the prior consent of the minor, his or her consent has effect…  as if … he or she were aged twenty-one years or upwards.

That’s a pretty old fashioned way of saying that if a young person is aged over 14, they can give consent to medical treatment and if they are aged under 16 their parent or guardian can give consent.  It means that where a child is under 14 the parent’s consent is essential, where they are over 16 their own consent is essential and if they are aged between 14 and 16 the consent of either the patient, or their parent, is sufficient.  This also reflects the position at common law

In Gillick v West Norfolk & Wisbeck Area Health Authority [1986] AC 112 Mrs Gillick sought orders to restrain the Area Health Authority from giving contraceptive advice to her 14 year old daughter without first obtaining Mrs Gillick’s consent.  In the Court of Appeal, Parker LJ said:

It must be stated at the outset that Mrs. Gillick’s purpose in bringing the action is to establish the extent of parental rights and duties in respect of girls under 16, for there is not the slightest suggestion that any of her daughters is likely, when under 16, to need contraceptive or abortion advice or treatment much less to seek it and accept it without her knowledge and consent … It is however clear that even in the best of families something may go suddenly and badly wrong and that, if and when it does, a parent may either be unaware of the fact or left with little time in which to act. She has therefore in my opinion ample interest to justify her attempt to establish the extent of her rights and duties…

The court of appeal found that the consent of a child under the age of 16 was no consent.  The matter was taken to the House of Lords.  In the House of Lords, Lord Fraser said:

It is, in my view, contrary to the ordinary experience of mankind, at least in Western Europe in the present century, to say that a child or a young person remains in fact under the complete control of his parents until he attains the definite age of majority, now 18 in the United Kingdom, and that on attaining that age he suddenly acquires independence. In practice most wise parents relax their control gradually as the child develops and encourage him or her to become increasingly independent. Moreover, the degree of parental control actually exercised over a particular child does in practice vary considerably according to his understanding and intelligence and it would, in my opinion, be unrealistic for the courts not to recognise these facts.

He quoted another judgment where Lord Denning put it this way (Hewer v. Bryant [1970] 1 Q.B. 357 at 369):

… the legal right of a parent to the custody of a child ends at the 18th birthday: and even up till then, it is a dwindling right which the courts will hesitate to enforce against the wishes of the child, and the more so the older he is. It starts with a right of control and ends with little more than advice.

Lord Scarman said:

I would hold that as a matter of law the parental right to determine whether or not their minor child below the age of 16 will have medical treatment terminates if and when the child achieves a sufficient understanding and intelligence to enable him or her to understand fully what is proposed.

That is now a general test for competency and a person who has that capacity is often described as being ‘Gillick competent’.

With the Minors Property and Contracts Act 1970 (NSW) the position is that a child over 14 can give consent provided they are ‘Gillick competent’.    For a child under 14 their parents must give consent. Where the child is aged between 14 and 16 the consent of either the child or the parents will suffice but where they disagree, a doctor is faced with a dilemma that we can’t begin to resolve here.

To the specific questions:

  1. The Children and Young Persons (Care and Protection) Act 1998 (NSW) makes some provision for the treatment of children.  As my correspondent has noted a child is aged under 16; a young person is aged over 16 but under 18 (s 3).  Those definitions in the Children and Young Persons (Care and Protection) Act 1998 (NSW) make no difference or have no effect on The Minors Property and Contracts Act 1970 (NSW) s 49.
  2. How you balance a conflict is difficult. If you want to treat a young person and they agree but their parent’s do not, the young person’s consent is effective.  If the parent’s want you to treat and the young person does not want treatment, the parent’s consent is effective but not if you’re going to have to use force to treat the child or forcing treatment is going to make the matter worse.  Then you have to negotiate with everyone and ultimately make decisions on what is practicable and in the child’s best interests.  There’s no easy answer.
  3. Before the current regulation of health practitioners under the Health Practitioner Regulation (Adoption Of National Law) Act 2009 (NSW) there was the Medical Practice Act 1992 (NSW). A person was registered as a ‘medical practitioner’.  Today the Medical Board is ‘Regulating Australia’s medical practitioners’.  The reference to a ‘medical practitioner’ in the Children and Young Persons (Care and Protection) Act 1998 (NSW) s 174 is a reference to a doctor, not a paramedic.

Categories: Researchers

Adding another string to my bow

4 May, 2016 - 12:14

I’ve been doing work on law and emergency services for some time now- the first edition of my book Emergency Law came out in 1999.  The work I’ve done has been in the context of an academic career in a publicly funded institution (first at the University of New England and then the Australian National University).  That work has taken the form of research for publication, funded research and, of course, my blog.  Working in an institution like that has limitations including one can’t give specific legal advice.

To add another string to my bow, I have now joined Blackburn Chambers – a floor of barristers here in Canberra.   As a practising barrister I am now in a position to give specific legal advice on issues involving the emergency services. (This will be in addition to my continued work at the ANU so rest assured, the blog will continue).

So now, for all those that have asked questions that I couldn’t on the blog, I can now offer a professional service.  For enquiries, my new practice email is eburn (at)blackburnchambers.com.au.  (Substitute @ for (at) in that email address, I’m just trying to minimise spam).


Categories: Researchers

Obligations of a driver involved in an accident

4 May, 2016 - 00:06

I have received versions of this question from two correspondents, which makes me wonder if they are from the same brigade or referring to the same incident?  The question below is a ‘mash up’ of the two messages I received:

Recently a NSW Rural Fire Service tanker was responding to a fire call.  The tanker collided with a another vehicle and was at fault. The driver didn’t leave the truck a didn’t have/or produce their licence.  What are the legal aspects of this? Does the driver of an emergency vehicle have to have their licence with them when attending a call?  If they are involved in an incident are they required to exchange particulars?

The obligations to hold a licence and the various classes of licences are set out in the Road Transport Act 2013 (NSW) and the Road Transport (Driver Licensing) Regulation 2008 (NSW).   Section 53 of the the Road Transport Act 2013 (NSW) s 175 provides that an ‘authorised officer’ may require the driver of a motor vehicle to produce his or her driver licence.   Failure to comply with that demand is an offence punishable by a maximum fine of $2200.

Section 146 makes it an offence if a driver who is involved in a collision fails to ‘stop and give any assistance that may be necessary and that it is in the person’s power to give’.    The maximum penalty for a first offence is a fine of $3300 or 18 months imprisonment, or both.  For a second or subsequent offence the maximum penalty increases to a fine of $5500 and/or 2 years imprisonment.

Rule 287 of the Road Rules 2014 (NSW) says that a driver involved in an accident must give details of:

(a)       their name and address;

(b)       the name and address of the owner of the vehicle;

(c)        the vehicle’s registration number; and

(d)       any other information necessary to identify the vehicle (eg unit and callsign).

to:

(a)       any other driver involved in the crash;

(b)       any person who is injured; and

(c)        the owner of any property damaged in the crash (unless the owner is also the driver).

The driver must, if possible, exchange those details at the scene of the accident but if that is not possible (eg because the injured person is being treated by paramedics and transported to hospital) as soon as possible and generally speaking, within 24 hours.  If you cannot provide those details at the scene, the owner of the vehicle may provide them to other parties.

The driver must also provide those details to the police if:

(a)       anyone is killed or injured in the crash, or

(b)       the driver cannot give their details to any of the people listed above;

(c)        any other driver involved in the crash does not share their details;

(d)       a vehicle involved in the crash is towed or carried away, or

(e)       a police officer asks.

When giving their details to police, a driver is also be required to give to police an explanation of the circumstances of the accident.

In this blog we have often discussed rule 306 of the Road Rules 2014 (NSW) and its equivalent in the other jurisdictions.  That rule says:

A provision of these Rules does not apply to the driver of an emergency vehicle if:

(a) in the circumstances:

(i) the driver is taking reasonable care, and

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

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

The first thing to note is that the exemption only applies to a ‘provision of these Rules …’ not all law or all traffic law.  The obligations to hold a licence, to produce it to an authorised officer and to stop and render assistance at an accident are all set out in Acts and Regulations other than the Road Rules 2014.  It follows that there is no exemption from those rules discussed above.

Rule 287 is a ‘provision of these Rules’ so could be covered by the exemption in rule 306 but one would have to ask would it ever be reasonable that the rule should not apply?  If a fire appliance or other emergency vehicle is involved in an accident why would it be reasonable not to require the driver to exchange details with other drivers and, in appropriate circumstances, with police?  Even if it was not practicable to exchange those details at the time of the accident, eg if a fire appliance is being driven to a house fire, the fire crew can see the address and see smoke and flames coming from the building and they fear persons are trapped inside. In making their way to the fire they side swipe a parked car.  It may not be ‘practicable’ to stop and exchange details at that point but the rule can still apply, and remember that the rules says if it is not practicable to exchange details they should be provided within 24 hours.

If a person has been injured then the driver has an obligation to stop and render assistance.  They have already taken themselves ‘off line’ so whatever they were going to, they are not going now so how could it be reasonable to exempt the driver from the obligation to provide their details to other drivers and police?

Remember too that if a person is injured, or their property is damaged due to the negligence of another driver they are entitled to seek recompense for their losses. It does not matter that the other driver was driving an emergency vehicle (save that may be relevant to the conduct of whether the driving was ‘reasonable in all the circumstances).  Driving to an emergency does not warrant putting others at risk.  All emergency service vehicles are insured so the obligation to pay does not fall on the driver, it falls on the insurer.  The injured party however has to have information about the driver and the vehicle in order to make his or her claim and it would be quite wrong to fail to give them that information to allow them, or their insurer, to make the relevant claims (see Volunteers and driver’s liability (NSW) (April 5, 2015)).  And that of course goes both ways, so a member of the emergency services injured in the accident needs to know the other driver’s details as does the service that may want to seek compensation for the damage to its appliance.

Conclusion

Does the driver of an emergency vehicle have to have their licence with them when attending a call? 

The law doesn’t actually say that, what it says that the driver has to produce their licence when asked to do so by an authorised officer (which includes a police officer) but it follows that one can only comply with that obligation if they have the licence with them, so the answer is “yes”.

If they are involved in an incident are they required to exchange particulars?

The obligation to exchange details is set out in the Road Rules 2014 (NSW) so there could be an exemption if that was reasonable (r 306) but it’s hard to imagine how that could be reasonable particularly when the rule says that those details must be given at the time of the accident or within 24 hours; so even if the emergency did mean they couldn’t be given immediately they could be given within 24 hours.  Further if someone is injured the emergency services have to stop anyway, so whatever it was they were going to is no longer relevant.

It follows that although it is theoretically possible that in the right circumstances there could be an exemption under r 306, I can’t imagine what those circumstances would be.  In my view, the driver of an emergency vehicle involved in an accident is required to exchange details with other drivers and with police. 

 

 


Categories: Researchers

The exception that proves the rule?

2 May, 2016 - 13:24

In an earlier post (The risk of liability for performing emergency CPR is overstated – even in the USA (October 7, 2015)) I reported on a report – ‘Strategies to Improve Cardiac Arrest Survival: A Time to Act’ (Institute of Medicine, 2015). That report included this (at p 113-114; emphasis added):

A fear of legal consequences and a lack of familiarity with Good Samaritan laws are frequently cited as reasons for not performing bystander CPR. These fears are not without justification: although a bystander has no legal duty to rescue, there can be legal consequences for intervening.  Theoretically, a member of the public could be sued for providing bystander CPR; however, the committee is unaware of any successful suit of this type. To mitigate the confusion and fear of potential rescuers, CPR instructors are urged to inform trainees of the protections available for lay rescuers in their area.

My friend and colleague Luke Dam has drawn to my attention a US case that may, or may not, confirm that principle – see David Statter, Lawsuit blames Firehouse Subs theme for workers thinking they are rescuers (STATter911 (online), 29 April 2016).   The gist of the story is that staff at a restaurant called ‘Firehouse Subs’ attempted CPR on a choking customer but failed to ensure a clear airway before beginning Expired Air Resusciation (mouth-to-mouth).   The online article quotes a local paper reporting that the deceased’s widow is:

… now suing Firehouse Subs for her husband’s wrongful death, claiming that the firefighting theme made staff brazen enough to try to attempt CPR—instead of waiting for the actual first responders to arrive. The suit accuses franchise owners Doroty and Edvard Dessalines for not training their employees how to treat choking victims.

Statter asks ‘If the workers had waited for the real rescuers to arrive and Mr. Skoff still died, you don’t think there would have been a lawsuit about the employees doing nothing, do you?’

Luke asks ‘I assume with our Good Samaritan laws, this would not happen here?’

Discussion

Let me then discuss some of the issues here.   First, Good Samaritan laws – take the NSW laws as an example.  The Civil Liability Act 2002 (NSW) s 57 says:

A good samaritan does not incur any personal civil liability in respect of any act or omission done or made by the good samaritan in an emergency when assisting a person who is apparently injured or at risk of being injured.

(See also Civil Law (Wrongs) Act 2002 (ACT) s 5; Personal Injuries (Liabilities and Damages) Act 2003 (NT) s 8; Civil Liability Act 1936 (SA) s 74; Civil Liability Act 2002 (Tas) ss 35B; Wrongs Act 1958 (Vic) ss 31B; Civil Liability Act 2002 (WA) s 5AB).

That does not mean that someone can’t bring a legal action.  The person who, ultimately, has to decide whether s 57 applies is a judge and litigation is the process to bring a case before the judge.  Section 57 creates a defence and a hurdle for the plaintiff to jump but a plaintiff who wanted to argue that the defendants were not good Samaritans (I’ll come back to that) or were not acting in ‘good faith’ can do that.  So s 57, and no doubt the good Samaritan laws in Florida, don’t stop the allegation being made, but they do frame the legal issues the plaintiff has to address.

Would Good Samaritan laws apply here?

The first thing to note is that that the lawsuit is not against the staff.  Accepting what has been reported (noting that we’re relying on a newspaper report and an online report, not the actual court documents) we are told that ‘The suit accuses franchise owners Doroty and Edvard Dessalines for not training their employees how to treat choking victims’; it is not accusing the staff for failing to perform CPR properly.

Are the franchise owners’ good Samaritans?  Using the NSW definition, a good Samaritan is ‘a person who, in good faith and without expectation of payment or other reward, comes to the assistance of a person who is apparently injured or at risk of being injured’ (s 56).  The franchise owners didn’t do that so on one view, the Act wouldn’t apply to them.

The alternative argument is that as with all aspects of a business, the business doesn’t operate by the hands of the owners only.  The owners employ people to act on their behalf so when the employees stepped forward, they were ‘the owners’. The franchise may not have had a duty to provide CPR, whilst any business would owe a duty to their customers, they couldn’t just try to work around the dying customer, they duty may require no more than calling 911 (in the US) or triple zero in Australia.  If the owner’s representatives stepped forward to help it makes sense to say that it was the owners who provided CPR and that they too are entitled to good Samaritan protection. That is something the court will have to resolve if it ever gets there (and I doubt it will, see below).

Note that if the staff were trained in first aid and were being paid an allowance to be a workplace first aid officer then they would not be good Samaritans as they would not be acting ‘without expectation of payment’ because they are in fact paid to provide first aid.  That would not change the defendant, under the doctrine of vicarious liability their employer – the franchisees – would still be liable for any negligence (see Vicarious liability for the actions of fire wardens (March 5, 2016) and Queensland paramedics, registration and misunderstanding the law on liability (April 12, 2016)) but it might change the nature of the allegations.

The next issue will be ‘Did the owners need to train someone to provide CPR?’  Again I’m going to use NSW law as my example.  I’ve previously talked about the Work Health and Safety Act requiring that a PCBU (a person conducting a business or undertaking) has to have in place first aid and emergency procedures (Work Health and Safety Regulations 2011 (NSW) rr 42 and 43) which includes having persons trained in first aid (r 42(2)).  I have argued that this may not extend to having in place AEDs (see Liability for failing to install an AED? (April 7, 2016) and Making the installation of AED’s compulsory (September 27, 2015) but CPR does not require any technology and equipment.

So a lawsuit against a PCBU for not having anyone trained in first aid (which I would infer includes CPR) may well be a live issue, but it would still face the problem of trying to show it would have made a difference, ie that even with proper training, and a clear airway, the patient would have survived.  (I suppose ‘choking’ is different to sudden cardiac arrest so that issue may be easier to get over than in other cases).

Will it ever get to court?

I doubt it.  For all the reasons discussed above, and before, this case has bugger all chance of winning.  The plaintiff would have to show that the defendant owed the deceased a duty to actually take action, the action taken was not ‘reasonable’ and that had they acted differently it would have made a different to the outcome. They will also have to deal with the Florida good Samaritan statutes (if any).

That doesn’t mean they won’t get some money.   People involved in the emergency services and emergency response may like to think that it’s all about the principle and that someone should not be liable here, and that the widow should be grateful someone tried something.  And that a successful outcome for the plaintiff puts the defendant’s in an unwinnable position because, as Statter noted, there would be a much better cause of action if the staff had done nothing.

But insurance companies have little interest in principle (see Settlement in Black Saturday litigation is approved (December 23, 2014)).  Their obligation is to maximise return to shareholders and that is by paying out as little as possible.  And paying the plaintiff to go away may cost much less then defending the case.  Further, if they defend it, win or lose, there becomes a precedent that other people can look at.  If the defendants win this one, the next case will be phrased in such a way to avoid the obstacles that get tested here.   IF the defendants lose well that just encourages other.  Settle the case and it disappears. Remember that in this blog I have said that there are no reported cases of people being sued for doing first aid or CPR.  The US report, cited above, also said ‘the committee is unaware of any successful suit of this type’.  If this case settles it disappears into the dust, there is no ‘report’ and the case is not, from an academic lawyers’ point of view ‘successful’ (though not doubt the plaintiff and her lawyers would see it as a success).  If this case does settle, this blog and other writers will still say no-one’s been successfully sued because no court has ruled on the issue and report writes will still be ‘unaware of any successful suit of this type’.

Further insurance companies want to keep the customers happy (within reason).  If they chose to defend it, their customers have to give evidence, and await verdicts.  People pay insurers to make problems go away.  Making a settlement does that and people then say ‘my insurance company was great, they made the problem disappear’.  Of course it depends on the attitude of the insured. If the insured was, say a first aid company, they may well take the view that in a case like this they don’t want to settle in which case they may be pleased that the insurer fought it.  Whilst the ultimate decision does rest with the insurance company, and the bottom line has to be the ultimate issue, the attitude of the insured may certainly be something an insurer wants to consider when deciding whether or not to settle.

Application to Australia

This is a case out of left field.  I would not expect to see such a case run, and even seeing it started is novel.    In Australia we don’t have ‘wrongful death’ suits like the US so I would be very surprised to see a case like this here.  There are other issues here too.  In Australia lawyers are not allowed to charge a percentage of the verdict and lawyers have to give a personal assurance that they think a case brought to court has ‘reasonable prospects of success’ so there is less incentive to speculate in litigation.  That might make it harder to bring a case like this here.  Even so I’m surprised to see it even from the US.

Having said that if my prediction is correct, this case will never see a final hearing.  In the US there are lots of steps to remove hopeless cases (if you watch American legal TV consider a ‘motion to dismiss’).  Cases can get kicked out of court at an early stage if there’s really no chance.  That might happen here but if it’s a single judge of a Florida court it’s not a major precedent.  If the issue moves up the judicial scale it may end up saying something useful about the state of the law.  If the case settles, either with payment to the plaintiff or not, it will not make a difference to the current view that the risks of litigation and liability are very low and it would still be the case of no ‘reported’ decisions on liability for performing CPR.  But perhaps we can no longer say ‘no-one‘ has been sued.

 

 


Categories: Researchers

What can a non-state employed paramedic do?

28 April, 2016 - 15:19

Here’s a quick question, and a quick answer:

I am a paramedic in the private space (Events/Industrial etc).  And would like some advice on what skills we can perform outside a state service.  Are you able to advise on these, either in the blog or paid for.

Paramedicine is an unregulated industry.  You can do whatever you are competent to do.  The only restrictions involves scheduled drugs and that depends on the authority granted to you or your employer.    If the quality of treatment isn’t ‘reasonable’ or if the treatment isn’t ‘reasonably required in the circumstances’ there may be liability in negligence but there is no law that says what paramedics may or may not do; and in states other than South Australia, Tasmania and New South Wales, there is no law on who is a ‘paramedic’.

As noted in the ‘about’ page (https://emergencylaw.wordpress.com/about-2/) ‘This is not a place for providing specific legal advice…’ so that is a general proposition.  If you do want advice on what particular paramedics, with particular skills sets can do when working for a particular provider with reference to their training documents and authorities, then that is advice you have to pay for.   Always happy to discuss that too.


Categories: Researchers

Fatigue management for volunteers with QAS

26 April, 2016 - 21:47

As we know, Australia’s emergency services depend on volunteers.  Volunteers may respond after a day’s work and spend many hours in the field.   Fatigue management has become an important issue in the emergency services but it can have implications on service provision as suggested by my correspondent, a community first responder with the Queensland Ambulance Service.

I’m hoping you are able to provide your opinion regarding a recent imposition of a maximum “10 days in 14” On call constraint by the Queensland Ambulance Service (QAS) imposed on volunteer QAS Community First Responders (FRs) to manage fatigue.

My understanding, from my correspondent, is that QAS has introduced a policy that volunteers must have ‘at least 4 continuous days of no On Call duty in every 14-day period (“10 days in 14”)’.  Further ‘The QAS asserted that this is in accordance with “QAS Operating Procedures” (specifically the QAS First Responder Policy 2007), the Ambulance Service Employees’ Award – State 2012 (“Award”) clause 6.1.5 and the Queensland Ambulance Service – Determination 2013 (“Determination”) Part 4 s19 (g) which specify that “no employee will be placed on-call for more than 10 Days in a continuous 2 week period”.  My correspondent further says

My interpretation is that First Responders are not covered by either the Award or the Determination, and the QAS using these as the argument to impose the “10 days in 14” policy is therefore flawed.

Specifically, my questions are:

  1. What legal constraints (including industrial relations laws, duty of care) can be applied to volunteer emergency workers (specifically QAS volunteer First Responders) that limit the hours that a volunteer can be available On Call to respond to emergency calls?
  2. Are there any ‘best practice’ methods of managing emergency services volunteers fatigue in an environment similar to that described in this paper?
  3. Are there enforced ‘on call’ constraints applied to other volunteer 24×7 emergency services (eg rural firefighters) in Queensland or other states?
  4. Ultimately the QAS can simply direct FRs to follow the 10 days in 14 constraint, however would this stand up to community, public, media, legal or coronial scrutiny (and the Queensland “Courier Mail” test) if the resultant reduction in FR coverage contributed to a poor patient outcome?
  1. What legal constraints (including industrial relations laws, duty of care) can be applied to volunteer emergency workers (specifically QAS volunteer First Responders) that limit the hours that a volunteer can be available On Call to respond to emergency calls?

Critically the legislation is the Ambulance Services Act 1991 (Qld) and the Work Health and Safety Act 2011 (Qld).

I’m told that ‘QAS first responder volunteers are classified as honorary ambulance officers under section 14(1) of the Ambulance Service Act 1991’.   That section says:

(1) The commissioner may appoint such persons as the commissioner considers appropriate to be honorary ambulance officers.

(2) Honorary ambulance officers—

(a) may carry out, without remuneration, such of the functions of the service as the commissioner may direct; and

(b) are subject to the control and supervision of the commissioner.

The Work Health and Safety Act 2011 (Qld) says at s 19 that ‘A person conducting a business or undertaking [a PCBU] must ensure, so far as is reasonably practicable, the health and safety of’ workers.  The definition of ‘worker’ includes ‘a volunteer’ (s 7).  The fact that a person is a ‘worker’ for the purposes of the Work Health and Safety Act does not make him or her an employee for other purposes.

Fatigue is an important issue for both employees and volunteers in the emergency services – see for example Bushfire CRC, Awake, smoky and hot; Safe Work Australia Guide for Managing the Risk of Fatigue at Work; Queensland  State Emergency Service Fatigue Management and Duty Time Limitations; NSW Rural Fire Service Service Standard 3.1.14 Fatigue Management; NSW Health Fatigue – Preventing & Managing Work Related Fatigue: Guidelines for the NSW Public Health System.

What follows is that a service like QAS has to undertake its own risk assessments and develop control methods to minimise those risks. One of the risks is danger caused by fatigue.  Further the duty to manage to fatigue applies whether the person is an employee or a volunteer.

As noted an honorary officer is ‘subject to the control and supervision of the commissioner’.

It follows that the Commissioner can develop policies to meet the Ambulance Service’s obligations to ensure worker health and safety and honorary ambulance officers are required to comply with those policies.

  1. Are there any ‘best practice’ methods of managing emergency services volunteers fatigue in an environment similar to that described in this paper?

I am a lawyer not an expert on fatigue management.  What I would suggest, however, is that there are no doubt a number of approaches that could be adopted.  As the Work Health and Safety Act says a PCBU must manage a risk via a risk assessment that includes ‘the availability and suitability of ways to eliminate or minimise the risk’ (s 18(d)).  For all risks there is more than one way to manage that risk that has to take into account the context of the operations.

  1. Are there enforced ‘on call’ constraints applied to other volunteer 24×7 emergency services (eg rural firefighters) in Queensland or other states?

I do not know.

  1. Ultimately the QAS can simply direct FRs to follow the 10 days in 14 constraint, however would this stand up to community, public, media, legal or coronial scrutiny (and the Queensland “Courier Mail” test) if the resultant reduction in FR coverage contributed to a poor patient outcome?

It’s true, ‘QAS can simply direct FRs to follow the 10 days in 14’ roster.  Would this stand up to public scrutiny?  I suspect it would.  My correspondent says:

The “10 days in 14” On call constraint has reduced the availability of FRs to be on call by 30%, potentially reducing the response capability of the group (and therefore impacting service delivery capability of the QAS). The constraint does not manage fatigue … and seems to have no purpose other than “tick the box” for QAS. I would argue that reducing First Responder availability without good reason fails to support the QAS Mission and at least two of the strategic objectives for the QAS.

Even if that’s correct attributing any poor outcome, eg a delayed response, to a particular policy would be difficult.  If a coroner was investigating ambulance response times then there may be questions asked, but being asked questions does not mean that there are no acceptable answers.  QAS would rightly say it did have to manage its workforce, including volunteers, and take into account fatigue issues.

The issue will be whether or not QAS have reasons for the implementation of this policy; it does not matter that there are other policy options or some would argue that a different policy would be better.  Provided that QAS can point to reasons behind their policy and their choices, then their choice is open to them (see the discussion on Associated Provincial Picture Houses Limited v Wednesbury Corporation [1948] 1 KB 223 and the concept of ‘Wednesbury unreasonableness’ discussed in A Question on the ACT Emergency Services Authority Volunteer Charter (April 14, 2016)).

Whether it would stand up to the Courier Mail depends on how they want to paint it.  If a patient dies and the press want to blame the ambulance service, then no doubt the policy will be subject to criticism.  Equally if a fatigued paramedic dies in a car accident then again the approach will be blamed.  But that’s true no matter what policy is.  When someone dies, the press can always paint a picture to blame whoever they want and blaming government is always more attractive than blaming the patient or the paramedic, or simply recognising that life is not risk free.

Conclusion

I am a lawyer and my blog is on legal issues.  I do not know what best practice of fatigue management is but I can confirm that:

  1. QAS has an obligation to manage fatigue issues for workers, which includes paid staff and volunteers.
  2. How they do that is a matter, ultimately for the Commissioner. There are, no doubt a number of options or approaches that could be adopted, provided the policy is not ‘so unreasonable that no public or other authority having the functions of the authority in question could properly consider the act or omission to be a reasonable exercise of its functions’ (Civil Liability Act 2002 (Qld) s 36(2)) then it’s a legitimate exercise of their authority.
  3. If a member, such as my correspondent, thinks that the policy is less than ideal the only approach is to advocate for change. There is no legal rule that one can point to to say that the policy is indefensible.

 

 

 

 


Categories: Researchers

Outcome of Airservices Australia prosecution over fatal fire appliance accident

24 April, 2016 - 11:06

On 7 August 2011 an airport fire appliance was travelling to assist the Northern Territory Fire and Rescue Services when it was involved in a fatal collision (see Airservices Australia to be prosecuted over fatal fire appliance accident in Darwin (January 14, 2015)).  At long last that prosecution has been resolved with Airservices Australia being fined $160 000 in the Federal Court of Australia (Kristy O’Brien ‘Fire truck operator ordered to pay $160k over 2011 Darwin crash that killed threeABC News (Online) 22 April 2016; and thank you Luke Dam for bringing this report to my attention).  (Interestingly the ABC Report says that the case was heard by Justice John Reeves, but if you go to the actual judgment, Comcare v Airservices Australia [2016] FCA 418, the judge is named as Justice White.  I’ll assume the transcript from the Court is correct.  References in [square brackets], below, are to numbered paragraphs in White J’s judgement).

In the Federal Court White J accepted that Airservices Australia breached its obligations both to its employees and to others ([1]-[2]) by:

a) failing to train, inform and instruct its employees appropriately in driving on public roads under emergency conditions; and

b) failing to conduct an appropriate risk assessment to identify and subsequently control hazards relating to the task of driving on public roads under emergency conditions.

It should be noted that Airservices Australia never denied its liability.  At [10] White J said:

Airservices admits its contraventions and acknowledges that Comcare is entitled to the relief which it seeks. It did this in the defence which it filed two weeks after the commencement of the proceedings and, therefore, at the earliest practical opportunity. Accordingly, this judgment concerns principally the penalty to be imposed on Airservices.

The Court made a declaration that the conduct of airservies Australia was a breach of the (then) OHS Act.  Such a declaration was required by the Act and had the effect of giving a public statement both to the defendant, and to others, that this conduct is a breach of the Act.  That sort of declaration is to give guidance to others as to what is, or is not, a breach.  The Court made the declaration but then had to consider whether a monetary penalty was also appropriate.  The maximum possible penalty was a fine of $242 000 ([19]-[21], [24]).  Because the defendant was a ‘body corporate’ ([7]-[8]) and not an individual, gaol was never an issue.   (The driver of the fire appliance had been charged with various traffic offences including proceeding through a red traffic light, dangerous driving and dangerous driving causing death but those charges were withdrawn by the Director of Public Prosecutions on 15 November 2012).

What is the point of imposing a fine?  White J (at [27]-[28]) referred to the decision of the High Court of Australia in Commonwealth of Australia v Director, Fair Work Building Industry Inspectorate [2015] HCA.  In that case

… the plurality (French CJ, Kiefel, Bell, Nettle and Gordon JJ) made two observations concerning civil penalty regimes generally which are pertinent in the present context… The second is that the object of civil penalties is primarily to achieve deterrence. They seek to do so by putting a price on contraventions which is sufficiently high to deter repetition by the contravenor and by others who might be minded to contravene the particular regime in the same way: at [55]. Punishment and retribution are not the purpose of civil penalties …

This means that the penalty the Court imposes must be such as to deter Airservices from further contraventions of the OHS Act and serve as a signal to those in a similar position of the need to comply with their obligations under work, health and safety legislation.

In deciding the penalty the Judge had to weigh up how serious the contraventions by Airservices were, recalling that the contraventions were the failure to provide training, not the seriousness of the actual outcome.  At [51] White J said:

Airservices’ contraventions are objectively serious because it failed to recognise and act on what was plainly a reasonably foreseeable risk and one which, if realised, was capable of producing very grave consequences for its own employees and other road users

On the other hand there were a number of factors that operated in favour of Airservices Australia ([57]-[59]):

Airservices has expressed its sorrow and regret to the surviving victims and their families. It did so long ago and not just in the course of the submissions on penalty to this Court. It is evident that Airservices has conducted itself in relation to the surviving victims and their families with genuine compassion and sorrow. I note that a senior employee of Airservices made a public statement of apology and regret on its behalf at the Coroner’s inquest held in May 2013. It has repeated those statements in the submissions to this Court. I accept these statements as sincere. I note that Airservices has taken a number of steps to give effect to its contrition.

As noted earlier, Airservices admitted at the earlier opportunity the contraventions alleged by Comcare. This was consistent with its expressions of contrition and reflected a willingness to facilitate the course of justice in relation to its contraventions. This is a significant matter of mitigation and by itself warrants a significant reduction in the penalty which would otherwise be appropriate.

Since 7 August 2011, Airservices has addressed, conscientiously and diligently, the deficiencies in its training and risk assessments and has sought to identify any other shortcomings in its equipment and systems. In particular, it has undertaken itself, or has commissioned others to undertake, several investigations and reviews in respect of matters arising from the incident …

Airservices took other action as well. Shortly after 7 August 2011, it informed each State and Territory authority with which it had an MOU that it would not respond to any requests for assistance until it had addressed the issues arising from the incident of 7 August 2011 to its satisfaction. At the same time, Airservices issued an interim direction to all its employees requiring compliance with all road rules at all times, irrespective of whether they were driving on a public road under emergency conditions.

The Northern Territory Coroner conducted an inquest into the incident. Airservices cooperated responsibly and thoroughly with the inquest and has implemented many of the recommendations made by the Coroner in his report.

Airservices has acted in accordance with the recommendations in the reports and reviews it has commissioned… It has developed and implemented an enhanced driver training program involving both theoretical and practical elements which all drivers of its vehicles must undertake; and it has reviewed the configuration and profile of the Rosenbauer Mark 8 vehicles resulting in modifications to improve visibility and recognition, including by repainting all of its ARFFS vehicles a lime green colour.

Finally, I note that Airservices cooperated fully and frankly with all independent investigations concerning the incident on 7 August 2011. I respectfully agree with the following assessment made by the Northern Territory Coroner of Airservices’ response:

There is little doubt that Airservices Australia has responded to this tragedy in a thoughtful, thorough and determined way. The management of that organisation [has] been humble and willing to admit the mistakes that were made and the need for improvement. The gravity with which they view their task is reflected in the number of excellent and detailed reports commissioned on their behalf and then provided without hesitation to the inquest and interested parties.

Weighing everything in the balance, his honour imposed a fine of $160 000.

Comment

This was always a tragic case, and the law has to be applied, but I do wonder to what effect.  As noted by the High Court the point of the penalty is to deter future conduct.  Although I’m not a criminologist I think it can also be taken that deterrence or punishment is most effective if it is reasonably swift.  This fine has been imposed some 4 ½ years after the event. There is no doubt that Airservices Australia took on board the ‘lessons learned’ and have taken action to ensure it doesn’t happen again.  As the judge said (at [68]):

Airservices has responded to the incident of 7 August 2011 in a responsible and conscientious manner. It is not easy to identify what more it could have done by way of facing up to its responsibilities.

If there is not much more that it could have done, what further deterrence does a $160 000 fine provide?

Fining a ‘for profit’ company makes sense because that takes money, ultimately, from the shareholders.  They in turn want to maximise their return so are likely to influence the Board and senior executives on how they want the company to run.  When fining a commonwealth agency the money is taken from one part of the Commonwealth and given to another.   Further, being in the nature of a penalty, it will not come from insurance but from the agencies budget.   As the sister of one of the victims is reported to have said ‘… the money was not going to benefit the family and it was “shifting from one Commonwealth bucket to another”’; and she’s right.  (Compensation to victims is governed by the Motor Accidents Compensation Act (NT) and hopefully claims under that scheme have been resolved.  The difference with compensation schemes however is that they are covered by relevant insurance so the money to pay that compensation would not have come from the budget Airservices Australia had to maintain airport fire fighting and rescue services).

On the other hand, the rule of law is meant to apply equally and exempting the Commonwealth from fines imposed, in effect, by the Commonwealth would not send the right message.  This fine is intended to signal to everyone, government and private sector alike, that there are financial penalties that come with failing to adequately assess and address risks to employees and others.

Given that Airservices Australia has cooperated fully with each inquiry and admitted liability as soon as it was prosecuted, it does beg the question of why it took 4 ½ years to determine penalty.   Presumably some of that delay was occasioned by waiting for coronial processes and for Airservices Australia to complete its own reviews so it could make an informed decision on whether to defend the case or not.  But even so ‘justice delayed is justice denied’ and as evidenced by the response of Airservices Australia, the organisation today is not the same as it was.  It seems unlikely that this fine will make any difference to Airservices Australia’s efforts not to make the same mistake again.


Categories: Researchers

Acceptable hi-vis jackets?

22 April, 2016 - 22:34

A NSW RFS volunteer likes to wear a hi-vis jacket when turning out, but what’s legal?

I am a volunteer with the NSW RFS and at times ride my motorcycle to incident calls. I sometimes where a high-vis vest for night calls. This vest has black and white chequer striping on it. I was told by a highway sergeant to remove the vest and not where it again as I am impersonating a police officer as blue/black chequered markings are reserved for emergency service vehicles and uniforms only. I can’t find any legislation regarding this and would appreciate a point in the right direction if possible.

It is indeed an offence to impersonate a police officer.  The maximum penalty is 2 years gaol and a fine of 100 penalty units (ie $11 000) or both (Crimes Act 1900 (NSW) s 546D).  To ‘impersonate’ is to ‘Pretend to be (another person) for entertainment or fraud’ (Oxford dictionary, online).   My correspondent was not ‘impersonating a police officer’; there was no attempt to pretend to be a police officer even if there was a risk of confusion.  Impersonation is not the relevant offence.

The relevant offence is set out in the Police Act 1990 (NSW) s 203.  Relevant parts of that section say (emphasis in underline added):

203 Wearing or possession of police uniforms by others

(1) A person (not being a police officer or a special constable appointed under section 82L) who wears or possesses a police uniform is guilty of an offence…

(3) A person (including a police officer) who uses police insignia otherwise than in the course of, and for the purpose of, exercising the functions of a police officer is guilty of an offence…

(5) A person is not guilty of an offence under this section if:…

(c)        the person establishes that the person had a reasonable excuse for the act or omission.

(8) In this section: …

police insignia” means:

(a) any items (being insignia, emblems, logos, devices, accoutrements and other things) that are generally recognised as pertaining to the NSW Police Force or as being used by police officers, or

(b) any parts of any such items, or

(c) any reasonable imitation of any such items or parts, or …

police uniform” means the uniform of a police officer, and includes:

(a) any parts of such a uniform (or any accoutrements of a police officer) that are generally recognised as parts of the uniform or accoutrements of a police officer, or

(b) any reasonable imitation of such a uniform, parts of a uniform or accoutrements.

Maximum penalty: 100 penalty units or imprisonment for 2 years, or both

(For a similar offence dealing with the insignia of the other emergency services, see State Emergency and Rescue Management Act 1989 (NSW) s 63B).

Let us assume that it is correct that the blue/white cheque pattern is ‘generally recognised as pertaining to the NSW Police Force’.  This is not, I suspect, an unreasonable assumption as these images captured off the web show:

There is no law that says specifically that ‘blue/black chequered markings are reserved for emergency service vehicles and uniforms only’ but it is still the case that ‘blue/black chequered markings’ may be perceived to be a ‘reasonable imitation’ of a police uniform or insignia.  Whether it would, or not, may be debatable but it is of course easier to avoid the fight than have to persuade a magistrate that there was no ‘reasonable imitation’.

Does my correspondent have a reasonable excuse?  The mere fact that the equipment is being worn for safety purposes whilst riding a motorcycle at night will not be a ‘reasonable excuse’ because there are alternatives.  If it was a ‘reasonable excuse’ a person could wear a police vest but that can’t be right.  The real answer why it’s not a reasonable excuse is because there are indeed standards for hi-vis gear (see http://www.elevenworkwear.com.au/high-visibility-standards; see also https://www.worksafe.vic.gov.au/__data/assets/pdf_file/0014/10157/FINAL_web_ready_file_High_Vis_clothing_design.pdf).  Wearing gear that looks like police chequer-board is not ‘reasonable’ when appropriate day/night vests are cheap and easily available.

Conclusion

It is not expressly provided that wearing a vest with ‘black and white chequer striping on it’ is illegal but it could be if, in the circumstances, it appears as a ‘reasonable imitation’ of insignia used by the police force.   My correspondent has already been put on notice that one police officer thinks that is the case.  The ultimate judge, should the police prosecute, would indeed be the judge (well really a Magistrate). Whether it’s worth having that argument depends on whether my correspondent does think the vest could or might be confused with a police uniform; and how much it might cost to go and buy a new vest.


Categories: Researchers

Employing firefighters in the NSW RFS

18 April, 2016 - 21:43

This question comes from a volunteer with NSW RFS.  In answering this question I make no comment as to whether the RFS is intending to act as suggested.  I just answer the question as asked.

In response to the coronial inquiry into the Wambelong fires the NSW RFS recently announced that they would be hiring more state mitigation crews and increasing their role to include conducting mid week burns in areas with low mid week volunteer availability. When state mitigation crews were first introduced volunteers were promised that they would be used for hazard reduction preparation only and not actual burning. Given this increase in duties it seems like a small logical jump for state mitigation crews to go from conducting HR burns in areas with low midweek availability to being “strategically” deployed to respond to incidents in areas with poor mid week volunteer availability. To this end I was wondering if you could provide your perspective on the following questions:

  1. Does the RFS act allow the RFS to employ paid firefighters in what is meant to be a volunteer based firefighting force?
  2. What changes if any would be required to RFS service standards to facilitate the use of state mitigation crews as front line firefighters?
  3. Is there any requirement for the RFS to consult with volunteers or volunteer representative groups such as the RFSA or VFFA?
  4. If used for active firefighting would state mitigation members then be represented by the fire brigades employee union (FBEU) from a union perspective?
  1. Does the RFS act allow the RFS to employ paid firefighters in what is meant to be a volunteer based firefighting force?

The RFS Act says nothing about employing paid firefighters. The RFS is made up of ‘the Commissioner and other staff of the Service’ and ‘volunteer rural fire fighters’ (Rural Fires Act 1987 (NSW) s 8).  The reference to volunteer fire fighters doesn’t say that fire fighters can only be volunteers, just that those that are volunteers are members of the RFS.  There is nothing in the Act to suggest that the service cannot have employed firefighters.

There is also nothing in the RFS Act to say that it is, or is intended to be, a ‘volunteer based firefighting force’.  Compare this to the Country Fire Authority Act 1958 (Vic) s 6F which says ‘The Parliament recognises that the Authority is first and foremost a volunteer-based organisation, in which volunteer officers and members are supported by employees in a fully integrated manner’. Even though that provision is there, the CFA does employ career firefighters (see http://www.cfa.vic.gov.au/volunteer-careers/career-firefighting/).

The NSW Rural Fire Service is an executive agency within the Department of Justice (Government Sector Employment Act 2013 (NSW) s 22 and Schedule 1). People may be employed to allow the service to perform its functions (s 21).   It follows that the RFS could employ people as fire fighters should it choose to do so.

  1. What changes if any would be required to RFS service standards to facilitate the use of state mitigation crews as front line firefighters?

There are many service standards and they are not readily searchable.  In any event I can’t find one that appears to deal with state mitigation crews.  If changes were required, the Commissioner could make the necessary changes.

  1. Is there any requirement for the RFS to consult with volunteers or volunteer representative groups such as the RFSA or VFFA?

The RFS Commissioner ‘… is responsible for managing and controlling the activities of the Service’ and ‘may determine the various duties that members of the staff of the Service are required to perform and allocate the duties to be carried out by each member of the staff’ (Rural Fires Act 1987 (NSW) s 12).  There is no legislated obligation to consult with volunteers (compare the Rural Fires Act to the Country Fire Authority Act 1958 (Vic) ss 6F-6I (see also The role of volunteer associations in Victoria’s SES and CFA (March 2, 2016)).

Even so the Commissioner makes use of consultative committees (Service Standard 1.1.8 NSW RFS Consultative Committees) and the RFS and RFS Volunteers Association have entered into a Membership Charter where

As an organisation, the Rural Fire Service agrees to consider the impact of policy and development on its members.  We also recognise the role of the Rural Fire Service Association and acknowledge that they represent the collective membership of the Service.  As such, as an organisation we will endeavour to ensure appropriate consultation with the Rural Fire Service Association on matters that may impact on membership.

  1. If used for active firefighting would state mitigation members then be represented by the fire brigades employee union (FBEU) from a union perspective?

I cannot make informed comment on that.  I imagine it would be a matter for firefighters and the union that currently represents RFS employees (which as far as I can tell is the Public Service Association and Professional Officers’ Association Amalgamated Union of New South Wales).  This is however a matter of industrial law, an area outside my field.


Categories: Researchers

Political discussion on a NSW RFS closed Facebook Group

14 April, 2016 - 11:12

My correspondent writes:

The New South Wales RFS run a closed Facebook group which is intended to only be for members of the RFS. Over the last few days there has been a bunch of debates on the group regarding whether or not various RFS service standards apply or not within the group. Some of this discussion got very heated leading one of the paid staff who look after the group to delete comments from several members and posting the following message:

“Just a reminder that this is an official NSW RFS channel managed by the NSW RFS for members of the service. As a result Service Standard 1.4.5 Social Media applies to any discussions that occur here and we expect people to behave in a way that is consistent with our organisational values.

I’ve just removed a bunch of posts and comments that used offensive language, were making personal attacks on other people or which served no purpose other than to agitate other members. This kind of behaviour is certainly not in line with our values and is therefore not acceptable within this group. People who choose to repeatedly post this kind of content will be banned.”

This has led to further discussion about whether members can potentially face disciplinary action as a result of content posted in the group or whether the admin is overstepping the mark and the worst that can be done is the removal of the member from the group (but not disciplinary action under the service standards). As there seems to be a variety of opinions being raised on the matter I was hoping you could provide your expert opinion on some of the questions being raised as there doesn’t seem to be much clarity on the issue at the moment.

Particularly some of the questions being asked include:

1) Does the RFS social media service standard apply in an official rfs members only group? If so could disciplinary action be bought against a member for conduct posted in the group?

2) Do other service standards (specifically the service standard on safe and inclusive workplace) apply within the group?

3) If service standards do apply in the group do they only apply to staff or volunteers as well?

4) If members have removed any public material identifying themselves as an RFS member and don’t have the RFS listed as their employer but are a member of the group are they exempt from the social media service standard and RFS discipline processes (if it would otherwise apply to the group)?

5) Are comments posted in the group protected by the concept of freedom of speech even if other members may find them offensive or bullying? if so do the staff admins have the right to remove them?

Your thoughts on the matter would be most appreciated

A closed Facebook group has to be the property of the administrator who can decide who is allowed into the group and the rules that apply to the group.  It certainly seems that Service Standard 1.4.5 Social Media is intended to apply to public sites (see [3.1]) so arguably it does not apply to a ‘closed’ group that only contains RFS members.  But even so postings to that group ‘may reflect on the image or reputation of the NSW RFS’ [1.1].  But to return to my opening statement, if the site is managed by the RFS and the administrator wants to apply the Service Standard, he or she can.   In short it applies if the administrator says it does.

Even if it did not, other service standards would, such as Service Standard 1.1.7 Code of Conduct and Ethics.  Even without that an administrator can remove any comment he or she sees fit and may well be duty bound to remove those that ‘used offensive language, were making personal attacks on other people or which served no purpose other than to agitate other members’.

To turn to the questions:

  • Does the RFS social media service standard apply in an official RFS Members only group? If so could disciplinary action be bought against a member for conduct posted in the group?

It does if the administrator says it does.  A breach of discipline in the RFS includes a failure to comply with the Service Standards (Rural Fires Regulation 2013 (NSW) r 9).  Disciplinary action could be brought against a member for breach of any service standard, whether that occurs online or at the station.

  • Do other service standards (specifically the service standard on safe and inclusive workplace) apply within the group?

Yes.  If this is a closed group, open only to members of the RFS, conduct in that group is as much bound by the service standards as conduct in the tea room or in an appliance.

  • If service standards do apply in the group do they only apply to staff or volunteers as well?

Yes, the service standards apply to all members of the RFS (Rural Fires Act 1997 (NSW) ss 8 and 13), in accordance with their terms (ie if they say they only apply to volunteers or staff then that is the case (see for example [3.49] of Service Standard 1.1.42 Respectful and Inclusive Workplace).

  • If members have removed any public material identifying themselves as an RFS member and don’t have the RFS listed as their employer but are a member of the group are they exempt from the social media service standard and RFS discipline processes (if it would otherwise apply to the group)?

No, they are still members of the RFS, otherwise they wouldn’t be part of the group.  That’s like asking ‘am I bound by the service standards if I turn up to a meeting or the fire station out of uniform’.    A member of the RFS is bound by the service standards because they are a member.  For example paragraph 3.1 of the Social Media Service Standard say ‘Members must be mindful of the information they post on public forums because it may impact on the reputation of the NSW RFS’ and there follows a list of material that must not be posted including ‘confidential or sensitive information’.  That has to apply even if one does not say ‘I’m a member of the RFS’.  On the other hand a member must not post material that may be ‘interpreted to be of a commercial or political nature’ but that has to be fine if the are posting on a public group and give no RFS affiliation, for example if they want to publicly comment on political matters or promote their own business.  But then the publication in no way reflects on the RFS.  It all has to be considered ‘in context’.   In this context given it’s a closed group, removing any identifying material won’t make a difference.  Clearly the person’s part of the RFS, it’s an RFS group.

  • Are comments posted in the group protected by the concept of freedom of speech even if other members may find them offensive or bullying? if so do the staff admins have the right to remove them?

No.  There are limits to freedom of speech.

Although Australian law does not have an express guarantee of free speech, the High Court has acknowledged in various decisions that an implied freedom of communication exists under the Constitution in relation to political and government matters (Leanne Griffiths ‘The Implied Freedom Of Political Communication: The State Of The Law Post Coleman And Mulholland’ (2005) 12 James Cook University Law Review 93-111, 93)

Given the ‘implied freedom’ in the Australian Constitution could or should be able to disagree with government policy and you think they are going the wrong direction. But that’s not defence to saying rude, personal or defamatory things about the Minister.  But remember this is a private group.  Just because you have a right to say something doesn’t mean others have an obligation to listen and just because you have a right to express a political opinion doesn’t mean you have a right to do it in any forum you want.  You may want to express your political views but the local paper doesn’t have to publish them, and the administrator of a private group doesn’t have to let them remain.


Categories: Researchers

A Question on the ACT Emergency Services Authority Volunteer Charter

14 April, 2016 - 10:33

I have previously discussed the Volunteer Charter that was agreed to by the Government of Victoria, Volunteer Fire Brigades Victoria Incorporated and the Country Fire Authority (see The role of volunteer associations in Victoria’s SES and CFA (March 2, 2016)). This question relates to a similar charter in the Australian Capital Territory (ACT):

On the 9 September 2008 the ACT Government sign a volunteer charter with volunteers of the ESA see here for charter http://www.firebreak.com.au/vol_charter.html, it was updated and again signed on 20 November 2013 an updated version is here http://www.firebreak.com.au/Volunteer_Charter_Final.pdf. The Charter was signed by the ACT Chief Minister, The ACT Emergency Services Minister and the Commissioner of the ESA.

The question from a ‘legal’ standpoint how much value does a charter have? Secondly there are a number occasions where I believe the ESA Commissioner has not fulfilled one of the key points of the Charter “it ensures that the ACT Government and the Emergency Services Agency will commit to consultation with all Volunteers about all matters that could affect Volunteers” so is a Charter just meaningless document that just pays lip service to keep volunteers quiet or does it have some sort of legal standing?

Unlike the Victorian charter (see Country Fire Authority Act 1958 (Vic) ss 6F-6H) the ACT charter has no basis or recognition in the relevant legislation (except perhaps Emergencies Act 2004 (ACT) s which says that one of the objects of the Act is to ‘recognise the value to the community of all emergency service members, including volunteer members’; and s 8(4)(e) which says that one of the Commissioner’s functions is to ‘recognise the importance to the services and the community of—  (i) all emergency service members, including volunteer members).

So what is the value of the document?  It’s clearly not intended to be legally enforceable, it’s a statement of commitment.  As the Charter says

The parties commit themselves to use and apply the Charter in a spirit of mutual respect and goodwill and to work together in that spirit to resolve any disputes that may arise between the ACT Government, the Emergency Services Agency and the Volunteers by reference to the key principles set down in this Volunteer Charter.

Whether ‘the ESA Commissioner [has or] has not fulfilled one of the key points of the Charter’ with respect to consultation is a matter of debate.  According to the Oxford online dictionary, ‘consult’ means ‘Have discussions with (someone), typically before undertaking a course of action’ (see also Firefighters and the need to consult with landowners in WA (September 1, 2015)).

How the Commissioner should consult and whether any consultation is effective is a matter upon which opinions may differ.    The Charter can’t be read literally, it would not be possible for the ‘ACT Government and the Emergency Services Agency’ to consult ‘with all Volunteers about all matters that could affect Volunteers’ because that would require them to discuss changes with every single volunteer and that can’t happen.  What could happen is that they could consult with representatives (eg a representative from each rural fire service station or SES unit, or volunteers’ association) or provide opportunities for those that want to comment to do so, or adopt probably an infinite range of other methods to try to hear from their volunteers.  Having a  commitment to consult does not equate to a commitment to adopt the views of the volunteers or any of them, given that there is unlikely to be a single view of all volunteers.    What follows is that a volunteer may feel that there has been inadequate consultation and the Commissioner and others may think that they have adequately consulted.  If the Commissioner honestly believes that then he or she has meet the commitment under the charter.

An analogy can be drawn with the law that would apply if the terms of the charter were set out in statute (Associated Provincial Picture Houses Limited v Wednesbury Corporation [1948] 1 KB 223).   A court will only interfere with a decision of a ‘competent authority’ if the authority’s decision

… is so unreasonable that no reasonable authority could ever have come to it … but to prove a case of that kind would require something overwhelming… It is not what the court considers unreasonable, [which is] a different thing altogether. If it is what the court considers unreasonable, the court may very well have different views to that of a local authority on matters of high public policy … and all over the country I have no doubt on a thing of that sort honest and sincere people hold different views. The effect of the legislation is not to set up the court as an arbiter of the correctness of one view over another. It is the local authority that are set in that position and, provided they act, as they have acted, within the four corners of their jurisdiction, this court, in my opinion, cannot interfere.

So if the Charter says there has to be ‘consultation’, that is a matter upon which ‘honest and sincere people [may] hold different views’ on what that means or requires.  If the ESA, as a ‘reasonable authority’ adopts some method to undertake effective consultation or otherwise apply the principles of the charter, then a court won’t intervene unless the system proposed ‘is so unreasonable that no reasonable authority could ever have come to’ the conclusion that it was an honest attempt to honour the charter.

What action could a person take who thinks the charter has not been honoured?  If the ESA were going to introduce a change that impacted volunteers and it was believed the principles of the charter had not been complied with, it may be possible to seek a legal remedy using the principles of equity and/or administrative law.  I won’t try to explain the differences but the gist of it would be that having made the commitment and promised to take into account the views of the volunteers, failure to do so could mean that the decision maker has not considered a factor that he or she had to consider and that the decision is therefore invalid.   If that argument got up the remedy would, at best, be an injunction from the Supreme Court to the effect that the decision is stayed (or stopped) and the decision maker then has to go back and engage in proper consultation.    The problems with that are:

  1. Actions in the supreme court are expensive and difficult;
  2. Courts are going to give significant leeway to the executive arm of government (ie the ESA) so if the ESA can say they have had meaningful consultation or have acted in accordance with the principles of the charter, even if not everyone is happy, then a court would be unwilling to say that the ESA has not met its obligations. The failure to act on the Charter would have to ‘so unreasonable that no reasonable authority could ever have come to’ the conclusion that it was an honest attempt to honour the charter;
  3. Even if a volunteer won such an argument, the decision maker may go back, consult and then still make the same decision as was originally made.

Alternatively one could seek a declaration that some action is inconsistent with the Charter.  The effect of a declaration would be that the agency would have to go back and act in accordance with the Court’s direction. It is unlikely that any government would refuse to honour a court declaration and failure could be punished as a contempt of court.  Seeking a declaration would face the same difficulties as getting an injunction.

In the ACT there are simplified procedures to review an administrative decision.  The Australian Capital Territory’s Civil and Administrative Tribunal (ACAT) is what I call the ‘Swiss army knife’ of tribunals as its jurisdiction is so varied.  One can apply to ACAT to review an administrative decision and ACAT can substitute the tribunal’s decision for the original decision maker if it thinks it should, it does not need to find that the decision was ‘unreasonable’ as defined by Wednesbury (ACT Civil and Administrative Tribunal Act 2008 (ACT) s 68).    But ACAT can only act on decisions that are ‘reviewable decisions’ under legislation.  Some decisions that might be made by the Commissioner or his or her delegate under the Emergencies Act 2004 (ACT) are reviewable (see s 185 and Schedule 2) but a decision on how to consult or otherwise implement the charter is not one of them.

Conclusion

The Charter could have some legal standing and in the right circumstances an aggrieved person could approach the Supreme Court for an injunction to stop a decision being implemented if the process used did not comply with the charter, or to obtain a declaration that some action did not comply with the charter.  The prospect of bringing, and winning such an action, is remote.  The reality is that the Charter is more a political statement.   A person who thought the charter was not being complied with could use that in an argument with the ESA or the Government that they are not doing what they promised to do, and they should.  If enough people agree then pressure from the Volunteers and their associations would no doubt cause the government or the ESA to reconsider their position.


Categories: Researchers

Queensland paramedics, registration and misunderstanding the law on liability

12 April, 2016 - 19:39

The Senate Legal and Constitutional Affairs Committee is holding an inquiry into ‘The establishment of a national registration system for Australian paramedics to improve and ensure patient and community safety’.   I was reading the submissions to the Inquiry including one from Australian Paramedics Association Queensland Inc.

The Australian Paramedics Association describe themselves (at http://www.apaq.com.au/about) as:

… a professional industrial association that was setup by paramedics and ambulance employees, to support and advocate for the rights and well being of paramedics and ambulance employees.

What caught my attention was a section in there senate submission on ‘Liability’.  They say:

The single biggest question being asked of Australian Paramedics Association Qld in regards to registration is whether each officer will require personal indemnity insurance. Currently, each service (or at least Queensland do) have protections under legislation for any act or omission performed in ‘good faith’ and without negligence, thereby preventing the need for paramedics to be forced to pay for additional protection.

This would need to be addressed within the registration framework, for both government and privately employed paramedics.

I don’t understand what they mean when they say Queensland ambulance officers have ‘protections under legislation for any act or omission performed in ‘good faith’ and without negligence’.    That sounds like a provision from the Fire Service Act 1990 (Qld) s 129 – and that reference is deliberate, I’m looking at the 1990 version of the Act that said:

No matter or thing done or omitted to be done by any person pursuant to this Act or bona fide and without negligence for the purposes of this Act subjects that person to any liability

It is not what the Act currently says.  Today the Fire and Emergency Service Act 1990 (Qld) s 153B says ‘No liability attaches to any person for an act done, or omission made, honestly and without negligence’.

The problem with a section like the original s 129 and now s 153B is they don’t say much.  If someone is suing someone for negligence, it stands to reason there can be no liability for an act done ‘without negligence’ whether the action was ‘honest’ or in ‘good faith’ or not.  To say ‘‘No liability attaches to any person for an act done, or omission made, honestly and without negligence’ is exactly the same as saying ‘‘No liability attaches to any person for an act done, or omission made without negligence’ and if the allegation that is said to lead to liability is that the defendant was negligent that has to be true whether the statute says it or not; that is if I say ‘you are liable to me because your action was negligent’ and your action was not negligent, then you are not liable.    The section may be relevant if the cause of action – the allegation – is assault or trespass rather than negligence.

That’s all well and good but it’s not what the Ambulance Service Act 1990 (Qld) says.  It says (at s 39(1)):

The State is to indemnify every service officer against all actions, proceedings and claims in relation to—

(a) acts done, or omitted to be done, by the officer under section 38; or

(b) acts done, or omitted to be done, by the officer in good faith for the purposes of section 38.

Section 38 sets out the powers of an authorised ambulance officer to take action in an emergency.   Section 39 just restates the law of vicarious liability that is an employer is liable for any default by an employee.

So why don’t paramedics need professional indemnity insurance.  Because they are employees. If the issue was that there was a section that said they are not liable for ‘for any act or omission performed in ‘good faith’ and without negligence’ that would not be enough.  That would give a defence but it wouldn’t stop someone alleging that some action was done negligently.  If that were the case the act would not be ‘in good faith and without negligence’ so the alleged defence would not apply.  Even if it did you would still want insurance so that the insurance company paid to defend the case.    Even if you’re going to win you don’t want to pay to have the argument.  A clause that said there was protection for acts done ‘‘in good faith and without negligence’ are not a bar to legal action.  It provides a defence but it is up to a court to determine whether it would apply in the circumstances.  To say therefore that that Queensland paramedics don’t need PI insurance because they have ‘protections under legislation for any act or omission performed in ‘good faith’ and without negligence’ is wrong.  It’s wrong because that is not what the legislation says and it’s wrong because even if it did it would not mean that one wouldn’t want insurance to be able to defend any claim that is made.

The correct statement is that Queensland paramedics don’t need PI insurance because, as employees, it is there employer who is liable should there be any claim of negligence or other tort.  For a more detailed discussion see:

Then there’s the question of ‘with registration will paramedics require personal indemnity insurance’?  The answer there is not necessarily.  Registered health professionals do have to be covered by indemnity insurance in order to practice their profession but it doesn’t necessarily have to be personal.  Take for example, a person seeking to be registered as nurse.  The Nurses and Midwifery Board has a registration standard on PI insurance.  It says “Nurses and midwives must not practise their respective profession unless they are covered by appropriate professional indemnity insurance (PII) arrangements” but it doesn’t say exactly what that insurance must cover.  It says ‘Nurses and midwives in different types of practice will require different levels of PII cover, according to their particular level of risk’ and then lists some types of cover that should be considered.  ‘It is the responsibility of nurses and midwives to understand the nature of the cover under which they are practising’.   When applying for registration a nurse has to tick a box on the Application for General Registration that says ‘yes’ to the question ‘Do you commit to have appropriate professional indemnity insurance arrangements in place for all practice undertaken during the registration period?’  The nurse is then referred to ‘… the Information and definitions section of this form’.   In that section it says (emphasis added):

PROFESSIONAL INDEMNITY INSURANCE (PII)
You must not practise the profession unless you are covered by appropriate PII arrangements in accordance with the requirements of the NMBA. You may be covered by your own private cover, your Australian employer’s cover or another third party. You are accountable for ensuring that you have PII cover in place and for understanding the nature of that cover. For more information, view the registration standard and guideline for each profession online at www.nursingmidwiferyboard.gov.au/RegistrationStandards.

So will paramedics require personal PI Insurance?  That remains to be seen and will depend upon the decisions of the (yet to be established) Paramedic Board but if the Paramedic Board takes the same approach as the Nurses and Midwifery Board, and if s 39 remains part of the Ambulance Service Act 1990 (Qld) then I would think any Queensland paramedic who practices only with Queensland ambulance could comfortably tick the box to say that they have appropriate cover.

Conclusion

Queensland paramedics do not need PI insurance because they are employees; not because they ‘have protections under legislation for any act or omission performed in ‘good faith’ and without negligence’ (which they don’t).

If Paramedics do become registered under the scheme that applies to other registered health professionals, it is not axiomatic that they will have to obtain personal professional PI insurance.   That will depend on the standards set by the (yet to be established) Paramedic Board, but the example from the Nurses and Midwifery Board is that cover offered by employers can be sufficient.  Section 39 guarantees that the State of Queensland will indemnify its paramedics, but that would be the case even if s 39 was not there (see Hollis v  Vabu  Pty Ltd (2001) 207 CLR 21; Sweeney v Boylan Nominees Pty Ltd  (2006) 226 CLR 161).


Categories: Researchers

Not for Resuscitation in Western Australia

8 April, 2016 - 16:21

A West Australian paramedic asks:

… a few questions regarding the legality of ‘not for resuscitation’ (NFR) forms in Western Australia.

Frequently we are given not for resuscitation forms from hospitals when transporting patients either home from an admission or between hospital facilities. Each hospital in WA seems to have their own form developed by the hospital with varying format and requirements for who may initiate a form and how many signatures are required (E.g some need family and two doctors to agree, others only need a single doctor and no family). Some of these forms are labelled “for this admission only”.

None of these forms are of the format of the ‘advanced health directive’ form available from the state government. The NFR forms we see are usually filled out by doctors on behalf of patients who are not competent to make decisions, e.g dementia. There has been discussion by ambulance staff regarding the legalities of these forms outside a hospital as these are hospital forms.

So far I have been unable to find much information on legislation regarding NFR’s (particularly if a patient is unable to make decisions for themselves) in Western Australia, the only information I can find refers to advanced directive forms which appear much different.

My questions are:

  1. Are these forms legally valid outside of a hospital, seeing as they are hospital developed forms and do not appear the same as an advanced health directive form?
  2. Are forms initiated by a doctor or family on behalf of a patient legally valid for patients who are unable to make decisions for themselves e.g. advanced dementia?
  3. I understand no one has yet been sued for attempting to help in an emergency, but in the instance a NFR form is ignored – due to not having a copy present, believed to be incomplete or a belief it isn’t legally valid, could the responder be guilty of assault for administering CPR.

Western Australia has no ambulance service legislation. It does have legislation dealing with ‘advanced health directives’ (Guardianship and Administration Act 1990 (WA) Part 9B).  Where an advanced health directive has been made on the form and in the circumstances required by the Act, then the decision made in that directive applies if the person is no longer able to communicate their wishes (s 110S(1)).  There are circumstances in which the decision will no longer apply but they need not be discussed here.  Most importantly Part 9B does not ‘not affect the common law relating to a person’s entitlement to make treatment decisions in respect of the person’s future treatment’ (s 110ZB).  It is the common or judge made law that is most relevant here.

The common law says that ‘except in cases of emergency or necessity, all medical treatment is preceded by the patient’s choice to undergo it’ (Rogers v Whitaker (1992) 175 CLR 479 [14] (Mason CJ, Brennan, Dawson, Toohey and McHugh JJ)).   Where a patient’s consent is required, it follows that a patient can refuse consent even if that means that they will die.  In Airedale NHS Trust v Bland [1993] AC 789, Lord Lord Goff said (at 864):

… it is established that the principle of self-determination requires that respect must be given to the wishes of the patient, so that if an adult of sound mind refuses, however unreasonably, to consent to treatment or care by which his life would or might be prolonged, the doctors responsible for his care must give effect to his wishes, even though they do not consider it to be in his best interests to do so. … [t]o this extent, the principle of the sanctity of human life must yield to the principle of self-determination…

The common law of necessity (In Re F [1990] 2 AC 1) says:

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

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

Where patients are not competent to make decisions necessity (and not fictitious notions of ‘informed consent’) justify treatment that is in the patient’s best interests but not treatment that they have previously made clear that they do not want.  In In Re T [1992] EWCA Civ 18 it was said that a refusal of treatment must be competent, informed and cover the situation that now arises.  If that is the case the decision to refuse treatment must be honoured.

Exercising these common law rights don’t require a particular form and the provision of s 110ZB of the Guardianship and Administration Act 1990 (WA) confirms that is still the case in WA.   Where the form has been completed by the patient or they have otherwise expressed and have had documented their treatment decision that remains binding on everyone, including paramedics (see also Medical tattoos offer important health information (March 3, 2012)).

Others may also make health care decisions for those that cannot decide for themselves. An enduring guardians can make medical treatment decisions in the best interests of the incompetent person Guardianship and Administration Act 1990 (WA) ss 45, 51 and 110G).   Where there is no guardian the ‘person responsible’ (ie the patient’s spouse or nearest relative) can also make medical treatment decisions (s 110ZD).   Having made that decision there is no requirement that it be communicated on a particular form (s 110ZK(2)(a)(ii)(II)).

In Western Australia a health professional is a person registered under the Health Practitioner Regulation National Law (Western Australia) (s 110ZH and Civil Liability Act 2002 (WA) s 5PA(a)).  Paramedics are not registered health professionals so that provision does not apply to them.    A health professional is also a ‘person who practises a discipline or profession in the health area that involves the application of a body of learning’ (Civil Liability Act 2002 (WA) s 5PA(b)) and that probably does include a paramedic, at least a university qualified paramedic.    A ‘health professional’ can rely on treatment decision made by a guardian or person responsible (Guardianship and Administration Act 1990 (WA) s 110ZK) so if a guardian or person responsible has refused treatment then that too is binding.

What of forms not completed by the family?  The first part of the doctrine of necessity was that treatment must be such that ‘a reasonable person would in all the circumstances take, acting in the best interests of the assisted person’.  That begs the question fo what is there best interests.  In Airedale NHS Trust v Bland [1993] AC 789 the UK House of Lords had to consider whether life sustaining treatment could be withdrawn from Anthony Bland.  Anthony had been a victim at the Hillsborough football tragedy of 15 April 1989.  95 people had died on that day or in the immediate aftermath.  Anthony was left in a persistent vegetative state.  He died on 3 March 1993 and was the 96th fatality from that event.

Prior to his death, the treating doctors sought permission to withdraw feeding and other care that was sustaining Anthony’s life.  The Crown solicitor advised them that they may be guilty of murder by withdrawing that treatment.  The health service (the Airedale National Health Trust) took the matter to court seeking a declaration that the decision to withdraw treatment would be lawful.  The courts agreed.  In the House of Lords it was held that a doctor’s duty was to act in their patient’s best interests, but the provision of futile treatment was neither advancing the patient’s interests and may be contrary to his best interests.  Lord Browne-Wilkinson said:

In my judgment it must follow from this that if there comes a stage where the responsible doctor comes to the reasonable conclusion (which accords with the views of a responsible body of medical opinion) that further continuance of an intrusive life support system is not in the best interests of the patient, he can no longer lawfully continue that life support system: to do so would constitute the crime of battery and the tort of trespass to the person. Therefore he cannot be in breach of any duty to maintain the patient’s life. Therefore he is not guilty of murder by omission.

The judgment is long and complex and I won’t go through it all but the gist of the conclusion is that doctors are not obliged to provide futile treatment that is treatment that will not treat the patient’s condition.  To give a simple example, a doctor is not obliged to prescribe antibiotics for a viral infection as they are futile.

Hopefully no single medical practitioner determines that further treatment is futile or not in the patient’s best interests. Hopefully that decision is made by a medical treatment team and the family and the patient to the extent that they can be involved.  But if it is the case that further treatment is futile, for example that the person is in the terminal stage of a terminal illness, then it is appropriate to withhold further treatment.  An NFR order signed by a doctor and delivered to paramedics is evidence that this decision has been considered and made.   What follows is that if the ‘order’ is made on the basis of an informed clinical judgment that the treatment is futile it is not so much they are ‘binding’ (a doctor can’t tell a paramedic what to do – see Step aside – I’m a doctor (October 17, 2014)) but one would have to consider that it is a serious ethical issue to administer treatment when a person’s treating doctor has determined that the very treatment is not warranted in the circumstances.

Let me then turn to the questions asked:

  1. Are these forms legally valid outside of a hospital, seeing as they are hospital developed forms and do not appear the same as an advanced health directive form?

Yes, the common law is preserved so the ‘Advanced health directive’ form is one way, but not the only way for a patient to communicate their wishes.

  1. Are forms initiated by a doctor or family on behalf of a patient legally valid for patients who are unable to make decisions for themselves e.g. advanced dementia?

Yes; If the NFR order is made by a doctor on an assessment that resuscitation is futile that is not so much binding but is a relevant factor to consider and it would be appropriately to honour it.  A paramedic in Western Australia has no more power to provide treatment that is not in a patient’s best interests than anyone else.  If there is an informed medical opinion that for this patient further treatment is futile that should be honoured.

  1. I understand no one has yet been sued for attempting to help in an emergency, but in the instance a NFR form is ignored – due to not having a copy present, believed to be incomplete or a belief it isn’t legally valid, could the responder be guilty of assault for administering CPR.

This is a dilemma.  If the refusal of treatment form is ignored simply because the paramedic would rather treat than not treat or because he or she thinks that is the legally ‘safer’ position then that may be an assault, particularly if it is the patient that has refused treatment.  But if in fact the refusal was not properly made it may be negligent.  In In Re T [1992] EWCA Civ 18, Lord Justice Staughtan said (at [60]):

The notion that consent or refusal of consent may not be a true consent or refusal presents a serious problem for doctors… The surgeon will be liable in damages if he operates when there is a valid refusal of consent, and liable in damages if he fails to operate in accordance with the principle of necessity when there was no valid decision by the patient…

That must be true for a paramedic too.  If you have genuine doubt about the decision and treat, but the court says the decision was valid and binding then the treatment is an assault.  The alternative for a paramedic in the circumstances is not so clear.  If you have actually been given documentation that says a treatment decision has been made it can hardly be negligent for a paramedic to honour that even if, later, it turns out the doctors or the family had not properly considered the situation or deliberately set out to harm the patient.  The paramedics can only go on the documentation they have.

In most states paramedics employed by the relevant state ambulance service could rely on provisions that protect them from liability for acts done in the good faith performance of their duties.  In the absence of any ambulance service legislation in WA, paramedics in that state don’t have that extra level of legal protection.

There have been many posts on this site about refusing and withholding treatment: see Refusing treatment.

 

 


Categories: Researchers

Responding to a Request for Assistance received via FaceBook

7 April, 2016 - 19:08

This is a matter that I too have had to consider when working as an SES media officer.

I’m a volunteer with a local NSW SES unit and manage the Facebook Page for the unit. It has always been unit policy not to log request for assistance (RFAs) over Facebook and ask the person to contact 132 500.

Today a member of the public sent a private message to the page in regards to a tree down, resting on powerlines, she also attaches a photo, and by sticking to Unit policy the following ‘saved reply’ was sent:

“Please call 132 500 to log a job with the NSW SES. Unfortunately we can not take requests for assistance over social media. If the situation is life threatening call triple zero (000).”

Later on another page admin and I had a discussion regarding our duty of care, as we know about this issue but we aren’t doing anything until the informant calls 132 500, what if the tree falls down onto someone or something causing injury / death or property damage or what if the person fails to call 132 500, where do we sit in regards to liability and duty of care, it’s like a person approaching a police officer and saying there is an armed robbery next door, but the police officer returns with “call triple zero” and walks away.

Is there a requirement for us to act on information we have or can we just turn our backs and tell the informant to call 132 500.

Without going into the details let us just assume, for the sake of the argument, that there is a legal duty to respond to emergencies caused by floods and storms (but see Liability for fire – a review of earlier posts (January 8, 2016) and the principles there will in many (but not all)  cases also apply to the SES).    The use of the 132 500 number (or the triple zero service for police, fire and ambulance services) is the ‘system’ that has been adopted to allow people to seek emergency assistance, but the critical issue is that they need assistance and the service knows about it; it can’t be ‘how did the service come to know about it?’  As my correspondent says that’s akin to ‘a person approaching a police officer and saying there is an armed robbery next door, but the police officer returns with “call triple zero” and walks away’.  Other examples also come to mind, a person calling for help from within a building and emergency services declining to respond until a triple zero call is received, or paramedics being told that someone has collapsed nearby but not responding without a triple zero call (see Failure to attend by NSW Police and Ambulance (December 18, 2013)).

Every service has to consider how it will respond to emergencies that it discovers by means other than a triple zero or 132 500 call.  But each service has limited capacity and monitoring social media is labour intensive and messages will no doubt be missed.   To consider that from a legal perspective let us assume there is a duty to respond (a position that is not clear and probably not true as plenty of earlier posts on this site will show) and consider the classic rule set out in Wyong Shire v Shirt and repeated in plenty of earlier posts.  Where there is a duty of care, it is up to the court to:

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

It is clearly foreseeable that with all the best efforts in the world, people will send messages via twitter, Facebook and the like.  As the 2009 Victorian Bushfires Royal Commission made clear, emergency services can’t plan on everyone doing what the services recommended.  In that context it was that the fire services may encourage everyone to have a plan and either prepare, stay and defend or leave early, but you have to plan for people who don’t do any of those things.  In this context the publicity may well be ‘for emergency help in floods and storms call 132 500’ but we know that not everyone will.   So there is a risk that people will try to send a message via twitter or Facebook.  How likely is it that they will do that?  Very likely.

How bad will it be if that’s missed –it could be fatal.

What is the ‘expense’ of taking action?  That might mean having someone monitor facebook 24 hours a day but even then messages will be missed.  Someone who posts on their own page ‘help I’m in trouble’ isn’t going to be heard and even if they #ses the message may slip through particularly during a big event when there is a large amount of traffic.   The requirement to provide a reasonable response is not a requirement to guarantee an actual response.  Setting up to monitor social media for those purposes is both expensive and difficult and ties up resources that are needed elsewhere.  So perhaps a response of an automatic message that says

“Please call 132 500 to log a job with the NSW SES. Unfortunately we can not take requests for assistance over social media. If the situation is life threatening call triple zero (000).”

Is just fine.

But that doesn’t answer the question of what to you do if you do know of the emergency.  Perhaps people can’t call for help.  They’ve got an iPod that can connect to a wi-fi signal but no phone or having posted the pictures and requested help they’ve been washed into the river; who knows?  Now the messages you’ve missed, you’ve missed, but this one you’ve seen.   A person has attempted to make contact, they have succeeded in making contact, but then the service doesn’t respond because the person didn’t make contact in the way preferred by the service.

It’s not a legal test but run that through the ‘Telegraph Mirror’ (for NSW readers) test – what would the media say when it’s found out that the SES did see the request, complete with photos and let us assume sufficient information to identify the address, but didn’t come?   Or, a favourite question for emergency service personnel, what’s the coroner going to say if the next day the SES are recovering the person’s body?

It seems to me that if there is a duty to respond (again putting that question to one side) then it can’t matter how you come to know of the emergency.  If the duty to respond only arose because someone rang 132 500 that would mean that there would be a duty to rescue someone who knows your phone number, but not someone who doesn’t.   Can you imagine surf lifesavers refusing to rescue someone as they didn’t put their hand up in the recommended way, or police because the person was being attacked and didn’t call triple zero etc.

A colleague of mine, Dr David Hudson, did his PhD on data and trust, asking what data do emergency managers ‘trust’ and why?  This begged the question of why do they ‘trust’ and therefore respond to a phone call but not a tweet or Facebook post?  Even more complex issues arise with the sort of algorithms that can monitor social media and suggest, via the traffic, that there’s an emergency happening even before someone rings.

One cannot say where the SES stands ‘on liability’ as it would depend on far too many factors about what was going on, the nature of the request for assistance and what attempts were made to get the person to ring 132 500 or perhaps getting the SES to ring them back.  One can’t say that there is a duty to monitor all social media, but if an agency’s going to have a social media presence it has to at least think about what the response will be to these inevitable requests.   I don’t imagine a blanket response of ‘we just don’t respond’ will be sufficient but I also suspect that the technology is still so new that it’s reasonable for agencies not to have the matter fully resolved.   But an extreme example can make the point, imagine someone has managed to skype in so they are talking one-on-one to an SES operator and providing all the information required.  To not respond because they didn’t call 132 500 could not be reasonable.  The operator themselves could take the details and complete an RFA.  If that’s true why is it not true if the information is received via Facebook and Twitter?  Often the information will be incomplete and that’s then a different issue but assuming it’s not?

Conclusion

I can’t reach a legal conclusion because each case and circumstance will be different but I think I can safely say that a decision to ignore information just because it isn’t received by the ‘preferred’ method would be hard to justify.  It may not lead to legal liability but given everyone’s fear of coroners, it is not something I would want to explain if the person made contact (that is they didn’t just send the message, they sent it and it was actually received) and were ignored.


Categories: Researchers

Laboratory safety

7 April, 2016 - 16:47

A correspondent poses a scenario that was discussed:

… during safety training at the research institution where I am currently studying.

In this scenario, a researcher working in a laboratory was subjected to a rather nasty accident involving chemical exposure and laser burns requiring medical assistance. Upon arrival of the ambulance access to the patient was delayed while the laboratory was cleaned up.  The explanation given by the safety training instructor was that the institution in question (which wasn’t named) could deny access to the emergency services.

Though, even with a basic understanding of emergency law I fail to see how this could possibly be the case.  Is this indeed true, or was he just trying to scare us?

Further to the above question.  I would have thought that delaying medical aid in such a manner – for the purposes of mitigating perceived liability under WHS legislation (perhaps to cover deficiencies in workplace practices prior to the accident), with such a callous disregard to the safety of the effected individual, would be exposing that institution to criminal liability.

Unless the institution in question is a secret commonwealth establishment (see Responding onto defence areas (June 1, 2014)) then the state laws will apply.  Depending upon which state you are in, the ambulance service may have a right to force entry (see for example Emergencies Act 2004 (ACT) s 34; Ambulance Services Act 1991 (Qld) s 38; Health Care Act 2008 (SA) s 61; Ambulance Service Act 1982 (Tas) s 14A).  Even in those states where ambulance officers do not have an express power to force entry (New South Wales, Victoria, the Northern Territory and Western Australia) others do.

Given this is ‘chemical exposure’ it may well be a hazardous materials incident which would give the fire brigades a power to force entry.  Legislation in most, if not all, jurisdictions would also give police a power of entry in an emergency (see for example Law Enforcement (Powers and Responsibilities) Act 20002 (NSW) s 9).  The common law would also extend the power of entry to police, fire brigades and ambulance personnel. In Kuru v State of New South Wales [2008] HCA 26 the High Court said:

The common law has long recognised that any person may justify what would otherwise constitute a trespass to land in cases of necessity to preserve life or property. The actions of fire-fighters, police and ambulance officers will often invoke application of that principle.

In short, unless the establishment is a commonwealth facility and there is a valid law of the commonwealth that would allow them to deny entry then no, the institution can’t deny access to the emergency services.

Under Work Health and Safety laws a Person Conducting a Business or Undertaking (a PCBU) must have in place emergency plans and procedures and must give effect to them should an emergency occur (see for example Work Health and Safety Regulation 2011 (NSW) rr 42 and 43).    Failure to allow access by the emergency services (either an ambulance or hazmat team if that is what required) would not be consistent with any reasonable emergency procedure or the PCBU’s primary duty to ensure the health and safety of a person at work (Work Health and Safety Act 2011 (NSW) s 19).

Nor can the PCBU take steps to mitigate ‘perceived liability under WHS legislation’.   Where there is a ‘notifiable incident’, which includes an incident that causes a serious injury or an ‘uncontrolled escape, spillage or leakage of a substance’ then this is a ‘notifiable incident’ (Work Health and Safety Act 2011 (NSW) ss 35 and 37).   The PCBU ‘must ensure that the regulator is notified immediately after becoming aware that a notifiable incident arising out of the conduct of the business or undertaking has occurred’ (s 38).  The PCBU ‘must ensure so far as is reasonably practicable, that the site where the incident occurred is not disturbed until an inspector arrives at the site or any earlier time that an inspector directs’ (s 39).  The scene may be disturbed to rescue the injured or to make it safe but any attempt to cover up the event will be evident.  If the worker has to go to hospital and reports what happened then it will be clear that a notifiable incident did occur and if it is not reported, one can imagine the WHS regulator taking a ‘dim’ view of the PCBU’s response.

‘Delaying medical … with such a callous disregard to the safety of the effected individual’ would be exposing that institution to criminal liability under both WHS law and general criminal law.  For example depending on all the facts they may be guilty of an offence such as manslaughter (should the victim die), ‘Failure…to provide necessities of life’ (Crimes Act 1900 (NSW) s 44); negligently causing grievous bodily harm (s 54) and no doubt other offences depending on the jurisdiction and the circumstances and motivation.

A callous disregard for the rights of others can also lead to an award of ‘exemplary damages’ in a civil case.  Normally damages are calculated by the plaintiff’s losses and are designed to put the plaintiff in the position he or she would have been but for the accident.   Australian courts do not like exemplary damages, that is damages over and above the plaintiff’s losses as they are a ‘windfall’ for the plaintiff and it is up to the criminal law, not the civil law, to ‘make an example’ of the defendant and to impose punishment. Even so exemplary damages can be obtained ‘in cases of conscious wrongdoing in contumelious disregard of the plaintiff’s rights’ (Gray v Motor Accident Commission (1998) 196 CLR 1, [8]-[20] (Gleeson CJ, Mchugh, Gummow and Hayne JJ)).

A person who intentionally denied aid to an employee in order to try to cover up a serious industrial accident could well find themselves open to the claim of ‘conscious wrongdoing’ and a ‘contumelious [that is “scornful and insulting”] disregard of the plaintiff’s rights’ and so face these extra damages which one would not expect the insurer to cover.

Conclusion

Assuming this is not a Commonwealth establishment with a specific law that would allow them to exclude the state services then no, they cannot exclude the emergency services. Yes, refusing or delaying aid is likely to see the PCBU guilty of offences under both Work Health and Safety and the general criminal law.  Such action may also expose the PCBU to an award of exemplary damages. Planning to react in the way suggested in the scenario would not be a good plan.

POSTSCRIPT

In response to the post, above, there have been comments here and via FaceBook about the need to keep paramedics or others out of the scene for their own safety, and the reference to ‘clean up’ may well mean using experts to make safe a dangerous site.  That’s all relevant but was not how I understood the question.  I took ‘deny access to the emergency services’ to mean the ability to deny access to the facility, that is to lock them out, as opposed to the ability to warn them of danger and to cooperate to resolve the issue.

If the site is hazardous then it is appropriate for the PCBU to warn the paramedics and to tell them the situation is being made safe.  I would imagine (or hope) that the ambulance service has a procedure in place when faced with a hazardous material incident not to enter and call the fire brigade.  Fire brigades when they turn out will no doubt talk to the laboratory owner and between them formulate a plan.  Ideally if the facility is hazardous there have been discussions with the emergency services and the body responsible for local emergency management planning long before an incident to develop a local emergency plan (see also Workplace Health and Safety Regulation 2011 (NSW) r 361).   The Fire Brigade may be the relevant ‘combat’ or ‘control’ agency but that doesn’t require them to send in fire fighters if the local emergency plan is working well.   But I wouldn’t see any of that as denying access to the emergency services, rather that is including them in the response.

So my answer, above, has to be read in that context.  It was not referring to a case where a hazardous chemical has been spilled and it is unsafe for rescuers to enter so that aid is delayed whilst the site is rendered safe by the facilities expert team.  I don’t see that as denying access to the emergency services who are also on scene.

To reiterate, I took ‘deny access to the emergency services’ to mean some claimed right to simply operate without them and to deny them entry to the premises (eg locking the front gate).  That can’t be lawful.

 


Categories: Researchers

Liability for failing to install an AED?

7 April, 2016 - 10:49

This question relates to the installation of Automatic External Defibrillators in public places.  My correspondent writes:

Hi Michael, was just on LinkedIn in and I saw this Q&A posted by a sales rep/manager for a company that manufactures AED’s.  I attached a screen shot of the Q&A. I have my ideas on what this gentleman has put forward…basically I see this as scaring people and organisations into a sale! I’m all for AED’s in public locations and workplaces etc…but I see this as quiet an uneducated “comment” on the topic..

So in saying all that I pose the question is there any potential liability for an organisation not having an AED installed?

The screen shot appears below but do note that I have edited it (and the original question) to de-identify the company and the author of the answer.

I have largely answered the issues raised in an earlier post – see Making the installation of AED’s compulsory (September 27, 2015).   In that post I noted ‘that there is very little relevant legislation’ so I’m not sure what this person means by the claim ‘state and local laws have gone to great lengths to encourage the placement of AEDs’.   ‘Local Laws’ would mean council bylaws that are impossible to talk about (there are some 571 local authorities in Australia (http://regional.gov.au/local/) and no-one can find or know what all the local laws are).   To refer to ‘state and local laws’ sounds awfully like a reference to US law where local authorities (cities and counties) have much greater legislative power than Australian councils.

It is true that there are no obvious state laws that would present a burden or ‘prevent anyone desiring to install AEDs from doing so’.

The controversial claim is that ‘AEDs have become so commonplace, the standard of care has now shifted creating a potential liability for organizations that do not have AEDs installed’.   That is certainly NOT the case in Australia.  In my earlier post I spoke about obligations under Work Health and Safety Laws.  There I said:

For example, the Work Health and Safety Regulation 2011 (NSW) requires an employer to ensure that there is provision for first aid at the workplace. As with other aspects of this Act, this requires a risk assessment. Some workplaces such as shopping centres may well consider that there is a sufficient risk to warrant putting in a defibrillator.

But what this person is referring to when he says ‘the standard of care’ is the common law of negligence.  Could a business be liable in negligence for not having an AED in place?  My view is ‘no’ and in particular no if what is intended is an AED for use on members of the public rather than employees or in some cases clients – so this answer is not intended for a doctor’s surgery or nursing home, but what I’m talking about is public access AEDs.

Assume I operate a shopping centre – is it negligent not to have an AED?  The person who might use it is a customer who has a sudden cardiac arrest in my centre.  I don’t know who that will be and the risk that it will happen on any given day is very low, but with a sufficient number people passing through over a long enough period one couldn’t say the risk is ‘far fetched and fanciful’ (Wyong Shire v Shirt (1980) 146 CLR 40, 47 (Mason CJ)).     But that doesn’t alone give rise to a duty of care.  If a person has a sudden cardiac arrest the centre owner didn’t cause it.  This is a person in need of assistance but there is no duty to rescue (Stuart v Kirkland-Veenstra [2009] HCA 12.  As Justices Crennan and Kiefel said (at [127]):

The common law generally does not impose a duty upon a person to take affirmative action to protect another from harm… The law draws a distinction between the creation of, or the material increase of, a risk of harm to another person and the failure to prevent something one has not brought about…

The shopping centre has not created the risk of a heart attack.  But people are invited into a shopping centre and there is no doubt people will become sick and injured and need assistance.  The proprietors can’t sensibly ignore that so they will have to have first aid and emergency response procedures in place, not just for heart attacks but for all sudden illness.  So let us assume for the sake of the argument that there is a relevant duty of care will it extend to the installation of an AED.

According to Mason CJ, assuming there is a relevant duty, it is up to the court to

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

The risk of a sudden cardiac arrest is as bad as it gets.  Without assistance the person will die.  What is the degree of probability that it will occur?  It depends on your time frame, in my earlier post I said:

First I’m told that there are 30 000 sudden cardiac arrests a year in Australia. That would equate to about 82 per day.  The chance that on any given day there will be a sudden cardiac arrest we can assume is 1. But the chance that it will happen in any given location, shopping centre or library is very small.   To give a personal anecdote, I’ve been trained in first aid since I was 13 years old. I have never had to do CPR simply because I was the right person at the right spot at the right time.  Putting an AED in a spot, even a high traffic spot like a train station or shopping centre does not mean it will ever be in the right spot.

So it’s a risk assessment.  The more people coming through a public area the higher the risk that it might occur, but there could be no question that some public spaces will never see a sudden cardiac arrest so that they may install an AED that would never be used.

Expense, AEDs do cost.  Again to quote my earlier post:

Having an AED does cost. Not only the purchase price but maintenance and training staff.   Requiring premises to have an AED adds compliance costs, ie some process to ensure that the rules are being complied with.

There would be no significant ‘difficulty and inconvenience of taking alleviating action [ie installing an AED, nor] any other conflicting responsibilities’ that would stop their installation.

With some assumptions then we might argue that given a large public space, with lots of people, the risk that someone will have a sudden cardiac arrest is reasonably high, it will be catastrophic for them and the installation of an AED is neither complex nor does it conflict with other responsibilities.  There are costs but they are probably not very much (see http://defibshop.com.au/product-category/defibrillators/ where prices seem to start at about $2200).

So will a centre be liable for not having one?  No.  Why not?  Because even if someone has a sudden cardiac arrest and dies, their estate would have to argue that had there been a defibrillator it would have made a difference.  But an AED on the wall won’t achieve anything.

Even if the AED is close to a person with a cardiac arrest it does not mean it will be used.   Someone would have to know that the AED is there, or likely to be there.   An untrained person may not know what an AED is let alone to look for one.  Even if they can see it they are unlikely to know what it is or that it is something that could be used without training.  The chance that there is an AED and a trained person at the right place at the right time is even lower.

The AED has to be used and even if it’s used it doesn’t guarantee success.  People still die.   So proving that the absence of the AED made the difference between life and death will be virtually impossible.

None of this is to suggest that they are not a good idea, but one can see why businesses may not be willing to invest and more importantly, why governments may not want to compel business to invest in the equipment that imposes a cost with limited chance that it will be used.

So the operator of a large urban shopping mall may well consider that investing in an AED is good practice, reflective of their general duty to have in place emergency procedures and they probably have emergency wardens who could be trained in the use of the AED.  That’s a good idea but it doesn’t mean that there could be any claim in negligence if a person died in the centre and the AED could not be found or was not used.

The issue becomes clearer when you move down to smaller places with less public access.  The term ‘Organizations’ [sic] covers a myriad of business with different risks.  The owner of a small corner shop will probably never have someone have a cardiac arrest in their store.  The statement ‘the standard of care has now shifted creating a potential liability for organizations that do not have AEDs installed’ is just too broad and simply does not reflect Australian law.   It may be true for some places, so your local Westfield may be remiss if they don’t have one or two, but saying that this would or could actually lead to a finding of negligence or liability is a very long stretch.


Categories: Researchers