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Discussion on the law that applies to or affects Australia's emergency services and emergency management, by Michael Eburn, PhD and Barrister.
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Police use of mobile phones in WA

5 April, 2016 - 15:53

Another question from WA

A couple of law students commenting on a post about police using phones while driving and stating that  Road Traffic Code 2000 r280 provides an exemption to r265.  I don’t believe that’s the case, am I missing something? When the phrase “A provision of these regulations does not apply” are they meaning everything after that statement or in that part?

Rule 265 of the Road Traffic Code 2000 (WA) says ‘A driver of a vehicle must not use a mobile phone while the vehicle is moving, or is stationary but not parked, unless…’ the phone can be used hands free or is in a secure mount.  There is no exemption for police.

Rule 280 is the traditional exemption for police.  It says

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

(a) in the circumstances —

(i) the driver is taking reasonable care; and

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

and

(b) the vehicle is moving; and

(c) in the case of a motor vehicle, it is displaying a blue or red flashing light or sounding an alarm.

The statement ‘A provision in these regulations…’ means the entire Road Traffic Code.  If it meant just a part of the code it would refer to ‘this part’.

So that means rule 280 does provide an exemption from r 265 but only when the police are proceeding to an emergency under lights and sirens, in which case you might think talking on the phone is not exercising reasonable care, but all circumstances are different.  If the criteria of r 280 are met, there is an exemption from r 265.

Compare this however to the situation in NSW.  In the Road Rules 2014 (NSW) rule 300(1) is in the same terms as r 265 of the WA Code.  What NSW has, and WA does not, is r 300(1)(c) which says that the rule against using a mobile phone does not apply if ‘the vehicle is an emergency vehicle or a police vehicle’. (And yes, they are meant to be national road rules).

An emergency vehicle is a vehicle driven by an emergency worker in the course of his or her duties in an emergency, so it is not open ended exemption for SES members and firefighters.  But a police vehicle is ‘any vehicle driven by police officer… in the course of his or her duties as a police officer’ (s 4). No reference there to an emergency or use of lights etc.  So a police officer in NSW can use a mobile phone whilst driving.  In WA they can do so only when proceeding to an emergency.


Categories: Researchers

DEPW burns during restricted burning times WA

5 April, 2016 - 15:33

A correspondent says:

I’ve been racking my brain over the last couple of days trying figure out where Department of Parks and Wildlife (DEPW WA) gets the power to light prescribed burns during restricted periods, are they meant to have a permit like private land holders as the Bush Fires act 1954 binds the crown or are they exempt under the conservation and land management act?

It is impossible to answer this question with any certainty.   First I have to accept that the Department does set fires during the restricted period.  If that is true what can be their authority?

The issue of ‘restricted periods’ is found in the Bush Fires Act 1954 (WA).  Prohibited burning times may be declared by the Minister; Restricted burning times may be declared by the FSES Commissioner (ss 17 and 18).   During a restricted burning period it is ‘unlawful to set fire to the bush … except in accordance with a permit obtained under this section and with the conditions prescribed for the purposes of this section’ (s 18(2)).  There is no particular exemption for DEPW in that section.

Interestingly my correspondent says ‘the Bush Fires act 1954 binds the crown’ but does it?

Some legal history

Historically legislation was made by the monarch on the advice of the Parliament. Legislation used to begin:

‘BE it enacted by the Queen’s Most Excellent Majesty, by and with the advice and consent of the Legislative Council and the Legislative Assembly of Western Australia, in this present Parliament assembled, and by the authority of the same…’ (see for example,City of Perth Parking Facilities Act 1958 (WA)).

 To make a law, the Bill has to pass through both houses of Parliament (except in Queensland where there is only one house) and then receive Royal Assent. In England, Royal Assent is given by the Queen, in Australia her assent is given by her representative; the Governor at state level and the Governor-General for the national parliament.   By convention, the Queen, the Governors and the Governor-General act on, and only on, the advice of their ministers. This means that they will never refuse to assent to an Act that has been passed by the relevant parliament.   To reflect that modern legislation no longer has the archaic introduction but the situation still remains that as a matter of legal history, the parliament recommends to the monarch that he or she should make a law and they then do so.

Again as a matter of history, it was said ‘the Crown can do no wrong’ so one could not sue or prosecute the monarch and the monarch was not bound by the laws that he or she made unless they specifically said that they were. Today the Crown is much more than the monarch, it is the whole of government made up of the ministers and the government departments. They all represent, and are captured by the phrase, ‘the Crown’.

It is now possible to sue the Crown as if it were a natural person (see Crown Suits Act 1947 (WA)) but it’s still the case that an Act of Parliament does not bind the Crown unless it specifically says that it does, so see, for example, the Animal Welfare Act 2002(WA) s 4 which says ‘This Act binds the Crown in right of the State and, so far as the legislative power of Parliament permits, in all its other capacities’.

The Bush Fires Act 1954 (WA) does not say that it binds the Crown.  It follows that the offences set out in that Act dod not aply to the Crown. Without confirming it by reference to chapter and verse, we can assume that the Department of Parks and Wildlife is part of the Crown in right of the Government of Western Australia (Crown Suits Act 1947 (WA) s 3) and so is not bound by the Bush Fires Act.

If I’m wrong about that there are plenty of ways they would get permission to conduct  burns. First they may get the relevant permit (s 23). The area of Crown Land might be exempted from the restrictions (s 17(4)); they may get an exemption from the Minster (s 25A).

I don’t see any exemption under the Conservation and Land Management Act 1984 (WA).

What follows is that it is not possible to answer the question without more detail about what DEPW are doing, when and why and what authority they claim to rely on.  The most obvious authority is that, as part of the Crown, they are not bound by the Bush Fires Act 1954 (WA).


Categories: Researchers

Re-visiting Paramedics and the mentally ill – Queensland

5 April, 2016 - 13:28

This question came to me as a comment on my earlier post (Paramedics and the mentally ill – Queensland (February 13, 2014)) but I thought it warranted a post of its own.    My correspondent writes:

I’d like to offer another hypothetical case and request your opinion. Then I’d like to offer my interpretation of how a paramedic must act to correctly apply this Act and see if you agree.

First, the case: Imagine a sober, adult patient who has a history of mental illness (say, depression) who calmly and reasonably explains that they no longer wish to struggle with this terrible disease and so they intend to commit suicide. They discuss this with a family member who calls ‘000’. Paramedics are dispatched and they discover the patient to be alert and oriented to person place and time and clearly of sound mind. The person says that while they do struggle with depression, and have been diagnosed with depression, and take antidepressants, they do not currently feel depressed. They feel that they have made a reasonable decision in a ‘lucid interval’ to end a life they consider unpleasant and they subsequently refuse assessment and transport.

Question 1: Would it be legal for the paramedics to initiate an EEO in this case?

My reading of the Act seems to suggest that any patient who is alert and oriented and appears to have the capacity to understand the consequences of their actions can’t be detained under the Act; it would only be those who appear to be irrational and disoriented, who are therefore lacking in ‘capacity’ to make an informed decision regarding their care (and only if this condition is due to a legitimate mental illness) that can be detained.

This seems a bit counter-intuitive, but my argument would be this: in your post you state that someone who has the capacity to accept care also has the right to refuse care. So a patient who is lucid, and has been deemed to have the ‘capacity’ to make a rational decision (regardless of whether others agree with it or not) would therefore have the right, regardless of this Act, to refuse care if they chose.

Now, my interpretation: I have suggested that the most appropriate way to determine if the Act can be applied would be to perform a Glasgow Coma Scale assessment, ensure that the patient is alert and oriented to person, place and time, to ensure that they have distant, recent and current memory, then to ensure that they understand the treatment you are offering and the potential causes of refusing that treatment. If they pass this assessment, then I don’t think they can be said to “appear to have a mental illness” that “requires immediate assessment”.

Question 2: Would you agree with the recommendation for the correct way for a paramedic to apply the Act offered in the above paragraph?

Let me say from the outset I’m not going to able to answer question 2 or comment on suggested ‘most appropriate way to determine if the Act can be applied’.  That is raising clinical issues and not something that it would be appropriate for me to comment on here when I don’t have the expert advice from clinicians.  How paramedics approach this is a matter for their professional judgment and the judgment of their service as set out in relevant protocols, guidelines and procedures.  If what is suggested here is considered ‘reasonable’ by the profession then that will be sufficient; but it’s up to the profession, not me to make that determination.

With that out of the way, let me turn to question 1.  The Mental Health Act 2000 (Qld) s 33 says that it applies ‘if a police officer or an ambulance officer reasonably believes— (a) a person has a mental illness…”  A mental illness is ‘a condition characterised by a clinically significant disturbance of thought, mood, perception or memory… [A] decision that a person has a mental illness must be made in accordance with internationally accepted medical standards’ (Mental Health Act 2000 (Qld) s 12).

In the scenario we are given the person is ‘a sober, adult patient who has a history of mental illness (say, depression) [but who is behaving] calmly and reasonably’.  The person is ‘alert and oriented to person place and time and clearly of sound mind’.  If the person is not exhibiting ‘clinically significant disturbance of thought, mood, perception or memory’ then they are not suffering a mental illness so s 33 will have no application.  Any paramedic or police officer who purported to detain a person under that section may be motivated by a desire to help, but their actions would not be authorised by the Act and they would be stepping away from the principles of respect for autonomy and back to ‘paternalism’ – we know what’s best for you!

Question 1 was ‘Would it be legal for the paramedics to initiate an EEO in this case?’ and the answer is, ‘if the patient is not exhibiting ‘clinically significant disturbance of thought, mood, perception or memory’ then no it would not be legal.

But don’t just take my word for it.   Consider what the High Court of Australia had to say in Stuart v Kirkland-Veenstra [2009] HCA 12.   This was a case with similar facts.  Police found a man sitting in a car with a hose running from the exhaust into the car.  He was clearly contemplating suicide but at the time the engine was not on and was cold so had not been on for some time. He was contemplating but not yet attempting suicide.  Police spoke to him:

Both officers were of the opinion that Mr Veenstra showed no signs of mental illness. He appeared to them to be rational, cooperative and very responsible the entire time. During their conversation he removed the hose from the exhaust and placed it in the vehicle. He did this of his own initiative and not as a result of any suggestion made to him by the officers. (Stuart v Kirkland-Veenstra [2009] HCA 12, [10] (French CJ)).

At the time,  Mental Health Act 1986 (Vic) s 10 (now repealed and replaced by the Mental Health Act 2014 (Vic)) said

Apprehension of mentally ill persons in certain circumstances

(1)            A member of the police force may apprehend a person who appears to be mentally ill if the member of the police force has reasonable grounds for believing that –

(a)             the person has recently attempted suicide or attempted to cause serious bodily harm to herself or himself or to some other person; or

(b)            the person is likely by act or neglect to attempt suicide or to cause serious bodily harm to herself or himself or to some other person.

As Chief Justice French (or French CJ) said (at [11]) ‘The two officers were aware that they had a power under s 10 of the 1986 Act to apprehend a person who appeared to have a mental illness and to have attempted or to be likely to attempt suicide. They did not exercise that power. They allowed Mr Veenstra to leave the car park.’  Mr Veenstra returned home and took his own life.  Mr Veenstra’s widow sued Victoria Police alleging that they were negligent in allowing Mr Veenstra to leave rather than detain him.  She argued the police should have know that he was mentally ill, in the process of committing suicide; and likely to attempt suicide or to cause serious bodily harm to himself.  She argued that the police were duty bound to take Mr Veenstra into protective custody such duty coming from either the common law, or s 10 of the 1986 Act (Stuart v Kirkland-Veenstra [2009] HCA 12, [16] (French CJ)).

The High Court disagreed and had this to say about mental illness, suicide and taking people into custody ‘for their own good’.    French CJ looked at the explanatory memorandum that accompanied the 1985 Bill (that became the 1986 Act).  When presenting the Bill to Parliament the Memorandum ‘said that the Bill recognised that the classification of a person as an involuntary patient involved a curtailment of civil liberties. It took the approach that such action should only be contemplated if absolutely necessary for the safety and wellbeing of the person, or for the protection of the community’ [33].   The Act was intended to modernise the law and to recognise that the mentally ill retain rights including the right to exercise autonomy and be involved in health care decision making to the extent that they could do so.

In 1995 the Act was amended to add a definition of mental illness.  That definition said (at [37]) ‘a person is mentally ill if he or she has a mental illness, being a medical condition that is characterised by a significant disturbance of thought, mood, perception or memory”

If Mr Veenstra was not displaying ‘significant disturbance of thought, mood, perception or memory’ then the police had no power to detain him under s 10 and could not be liable for failing to exercise a power that they did not have (see [63]).  But what of Mr Veenstra’s apparent contemplation of suicide?   French CJ (at [44]-[46]) said:

Section 10 does not assume a necessary linkage between mental illness and attempted suicide. This accords with the long-standing resistance of the common law to the proposition that such a connection necessarily exists… the construction of s 10, which would not treat attempted suicide as necessarily reflecting mental illness, is consistent with the long-standing caution of the common law about that proposition. Given the complexity and variety of factors which may lead to suicidal behaviour, it would be a bold legislative step indeed to sweep it all under the rubric of mental illness, however widely defined. That step has not been taken in the 1986 Act.

And later [58] ‘The fact that a person has decided to commit suicide may indicate deep unhappiness or despair. It does not mean that the person is mentally ill …’ According to French CJ neither the Act nor the common law assume that just because a person is contemplating suicide, they must be mentally ill.

Justices Gummow, Hayne and Heydon agreed there was no relevant duty to protect Mr Veenstra from himself.  They said (at [87]-[89]):

The duty which the plaintiff alleged the police officers owed her late husband was a duty to control his actions, not in this case to prevent harm to a stranger, but to prevent him harming himself. On its face, the proposed duty would mark a significant departure from an underlying value of the common law which gives primacy to personal autonomy, for its performance would have the officers control conduct of Mr Veenstra deliberately directed at himself…

It may be said that the notion of personal autonomy is imprecise… But expressed in the most general way, the value described as personal autonomy leaves it to the individual to decide whether to engage in conduct that may cause that individual harm. As Lord Hope of Craighead put it in Reeves v Commissioner of Police of the Metropolis, “[o]n the whole people are entitled to act as they please, even if this will inevitably lead to their own death or injury”

There may be a duty to intervene if a person is not competent but ‘Section 10 does not reveal any legislative view that to attempt suicide is to be mentally ill. Nor, as explained below, has that been the unqualified position of the common law’

Justices Crennan and Kiefel said (at [127]-[128]):

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… So far as concerns situations brought about by the action of the person at risk, it is the general view of the common law that such persons should take responsibility for their own actions…

The refusal of the English common law to impose a general duty to act has been criticised. Civil law countries impose criminal sanctions where a person fails to assist… Even so, that obligation does not arise in the case of a person attempting suicide because the peril is viewed as an act of will, at least in cases where the person is not insane.

With respect to s 10 of the Victorian Act they said (at [147] and [150]):

The power of apprehension in s 10(1) required, critically, that there be an opinion, held by a police officer, that the plaintiff’s husband was mentally ill when he was observed. Depending on the circumstances, a person who has attempted, or is likely to attempt, suicide may or may not satisfy the criteria of mental illness… It is not a sufficient condition that an officer be aware that the plaintiff’s husband had recently contemplated suicide. The purpose of s 10(1) is to allow officers lawfully to apprehend a person who appears to be mentally ill and is also at risk of harm. Its purpose is not to prevent suicide. In this regard the Act does not deviate from the common law view of autonomy…

Absent the holding of an opinion that the plaintiff’s husband was mentally ill, the power to apprehend was not available. A condition necessary to the power did not exist in law…

Section 10 of the Mental Health Act 1986 (Vic) had one substantial difference to the current Queensland Act.  The Victorian Act said ‘A member of the police force may apprehend a person who appears to be mentally ill…’ (emphasis added).  The High Court judges spent some time discussing whether the use of the word ‘may’ could give rise to a duty to act, that is to convert ‘may’ to ‘must’.  That is not an issue in Queensland.  If a paramedic or police officer has the necessary opinion that the person is mentally ill and also meets the other criteria set out in s 33 then the paramedic or police officer ‘must take the person to an authorised mental health service’ (s 34; emphasis added).  But nothing turns on that.  The obligation imposed by s 34 only arises if the paramedic or police officer reasonably believes, amongst other things, that the ‘person has a mental illness’.  If they don’t hold that belief s 34 is irrelevant.

As noted by the judges of the High Court, the mere fact that a person intends to take their own life is not evidence that they are mentally ill for the purposes of the Act.  They were talking about the Victorian Act but the definition of mental illness in the Queensland Act is not significantly different.  The Victorian Act required:

a medical condition that is characterised by a significant disturbance of thought, mood, perception or memory”

The current Queensland Act requires:

a condition characterised by a clinically significant disturbance of thought, mood, perception or memory…

The Queensland law has added the word ‘clinically’ so if there is any difference it is to make the test harder to meet by adding a further factor – is the disturbance ‘clinically significant’ instead of just ‘significant’.

What follows is

  1. A paramedic cannot lawfully rely on the Mental Health Act 2000 (Qld) s 33 unless he or she believes that the patient is mentally ill.
  2. To be mentally ill means to be suffering from ‘a clinically significant disturbance of thought, mood, perception or memory’. It does not mean ‘to be contemplating suicide’.
  3. If a person is not mentally ill then s 33 is not relevant.
  4. If a person is sober, adult, behaving calmly and reasonably, ‘alert and oriented to person place and time and clearly of sound mind’ albeit with a history of mental illness but not currently displaying any symptoms of disturbance of thought, mood, perception or memory then there is no power, nor any duty, to take steps to prevent them taking their own life. People are allowed to kill themselves if they want to.

Categories: Researchers

The SES and Civil Defence

4 April, 2016 - 15:14

The Australian State Emergency Services grew out of the cold war or earlier civil defence organisations (see for example, NSW SES, The SES Story, 19 April 2011 (accessed 4 April 2016)).   Today Civil Defence is no longer listed as a function of most State Emergency Services (see State Emergency Services Act 1989 (NSW) s 8; Emergency Management Act 2013 (NT) s 46; Fire and Emergency Services Act 1990 (Qld) s 130; Fire and Emergency Services Act 2005 (SA) s 108; Fire And Emergency Services Act 1998 (WA) s 18A).

The exceptions are Tasmania and the ACT. In Tasmania, one of the functions of the SES is to ‘in time of enemy action or hostilities against the State, to coordinate civil defence measures’ (Emergency Management Act 2006 (Tas) s 26).  In the ACT it is a function of the SES ‘to undertake civil defence planning and civil defence operations’ (Emergencies Act 2004 (ACT) s 57(2)).  In Victoria one of the functions of the SES is to take part in ‘other authorised emergency activities including … participating in civil defence activities’ Victoria State Emergency Service Act 2005 (Vic) s 5(d).  To ‘take part in’ is not, however, the same as leading or coordinating those activities as required in Tasmania and the ACT.

So what is civil defence?  This is a concept known to international law and in particular 1st additional protocol to the Geneva Conventions of 12 August 1949, and relating to the protection of victims of international armed conflicts.   The first protocol defines Civil Defence (Article 61) as:

… the performance of some or all of the undermentioned humanitarian tasks intended to protect the civilian population against the dangers, and to help it to recover from the immediate effects, of hostilities or disasters and also to provide the conditions necessary for its survival. These tasks are:
(i) Warning;
(ii) Evacuation;
(iii) Management of shelters;
(iv) Management of blackout measures;
(v) Rescue;
(vi) Medical services, including first aid, and religious assistance;
(vii) Fire-fighting;
(viii) Detection and marking of danger areas;
(ix) Decontamination and similar protective measures;
(x) Provision of emergency accommodation and supplies;
(xi) Emergency assistance in the restoration and maintenance of order in distressed areas;
(xii) Emergency repair of indispensable public utilities;
(xiii) Emergency disposal of the dead;
(xiv) Assistance in the preservation of objects essential for survival;
(xv) Complementary activities necessary to carry out any of the tasks mentioned above, including, but not limited to, planning and organization;

Civil Defence organisations have a special place in the law of war and ‘their personnel shall be respected and protected’ during time of war (art 61(1)).  Where a country is invaded, the ‘Occupying Power’ must allow Civil Defence organisations to continue to operate for the benefit of the civilian population (art 63).  Further Civil Defence organisations that are operating in a conflict area are entitled to the same protection so if, for example, the ACT SES were to deploy a force to provide civil defence assistance in a war zone (unlikely I grant you) the parties to the conflict have to allow them to operate for the benefit of the civilian population and protect their staff and assets (art 64).

Parties to the conflict should take steps to ensure civil defence personnel, buildings and shelters are identifiable (art 66).  To this end there is an internationally recognised symbol for civil defence that is ‘an equilateral blue triangle on an orange ground’ (art 66(4)).

Emblem of Civil Defence

International armed conflict is war (whether declared or not) between states.  Non-international armed conflict is ‘”armed conflicts not of an international character occurring in the territory of one of the High Contracting Parties” (ie a State).   Non-international armed conflict includes a conflict between government forces and rebel groups or between groups within a state (see International Committee of the Red Cross (ICRC) How is the Term “Armed Conflict” Defined in International Humanitarian Law? (March 2008))

The ICRC, as custodians of International Humanitarian Law (ie the law of war) also say, with respect to civil defence (ICRC, Civil Defence in International Humanitarian Law (June 2001)) that:

… the rules regarding [Civil Defence] … should also be complied with during non-international armed conflict, as part of the general protection accorded to the civilian population against the dangers resulting from military operations.

There is an International Civil Defence Organisation (the ICDO) that is

… an intergovernmental organisation with the objective to contribute to the development by States of structures ensuring the protection and assistance of population and safeguarding property and the environment from natural or man-made disasters.

On that definition the ICDO is interested in more than protecting populations in time of war.  It is actively engaged in trying to promote international cooperation in natural disaster response arrangements.   The ICDO has 55 member states but they are concentrated in China, Russia and the former Soviet Union States and Africa.  Australia, Canada, the United States, the United Kingdom are not members of the ICDO.    There is a Red Cross/Red Crescent International Disaster Response Law program that is trying to encourage states to pre-plan for how they will receive international disaster assistance and to facilitate the movement of responders across national borders.  There is already in existence a Framework Convention on Civil Defence Assistance (22 May 2000) that if adopted could help facilitate international civil defence assistance in ways anticipated by the Red Cross/Red Crescent movement.  Again the convention, like the ICDO is not widely adopted across the Western world.

Discussion

Agencies involved in the tasks listed article 61 are civil defence organisations even if that is not specifically mentioned in their functions.  So Fire and Rescue NSW, being an organisation that provides fire-fighting (art 61(vii)) is a civil defence organisation even though civil defence is not mentioned as a function.  Equally the State Emergency Services are civil defence organisations are civil defence organisations even if that term is not used in their legislation.

What is interesting for Tasmania and ACT SES’ is the requirement to ‘coordinate civil defence measures’ (Tasmania) and ‘undertake civil defence planning and civil defence operations’ (ACT).  And presumably the National Capital, ACT and Canberra is a potential war target, perhaps more so than Hobart?  Does civil defence planning (ie planning to support the civilian population should international or non-international armed conflict reach Australia’s shores) occur?  I suspect it does but I’m not sure it’s led by the SES.  I imagine that it’s seen as a task for the police and/or the ADF.  Perhaps Tasmania and ACT SES are leading the planning but keeping it ‘on the quiet’ on the basis that they don’t want to scare the population and it’s pretty unlikely to be called upon?

Does anything turn on this?  Probably not, it was just interesting to observe that Tasmania and ACT State Emergency Services maintain that express link to civil defence and therefore have particular obligations, recognised in international law, to take the lead in supporting the civilian population in the event of a war.  Let us hope it is one function they never need to actually exercise.


Categories: Researchers

Responding to calls for mandatory sentencing

3 April, 2016 - 21:54

I received a message via Facebook.  My correspondent wrote:

 G’day Michael- on Facebook and other sites, there’s a lot of calls for mandatory sentencing for those who assault Police and Paramedics. Have you written anything about this in terms of why it would or wouldn’t work and if there are any other legal implications and other issues? Luke

In fact I have written on this subject. On 26 December 2015 on my Emergency Law Facebook page I responded to a story in the Adelaide Advertiser – Amanda Blair: Harsher jail terms for assaulting ambos won’t make them safer.

In my comment I said:

At the risk of offending many people who read this blog, I feel I have to comment on this giving the criticism Ms Blair has received for her comments. Because I agree with her – mandatory jail sentences are not and never have been the answer to any crime problem. Mandatory sentences do not achieve deterrence, they just move the discretion. With mandatory sentences it comes down to the police to decide who goes to gaol (do they charge the alleged offender or not). When the police make the decision the person cannot explain their situation and the decision is not made in public with published reasons, as must occur when a judge imposes a sentence.

A prison sentence may have some deterrence affect on an individual but little effect on others. A person who is intoxicated is unlikely to think ‘I’d better not hit this person because someone I don’t know in other circumstances went to gaol for something that may nor may not be similar’. At that point in time the implications of punishment are not likely to be on their mind.

As for references, like Ms Blair and other commentators, I can’t point to specific criminological research but it is I think well accepted that gaol is a very expensive and ineffective way to reduce crime at large and carries with it much higher costs and broader social implications.

Remember too that assault is more than just physical contact. People may ‘hit’ a paramedic but many of them will not be guilty of any offence – see for example https://emergencylaw.wordpress.com/…/tasmania-alcohol-affe…/. The offender there was guilty of assaulting a paramedic, but was not guilty of assaulting the police officer involved even though he quite clearly intended to hit him. Other people will be not guilty because of the impact of the very injury or crisis that has brought them into contact with paramedics and that can include the impact of drugs and alcohol. Some people will take drugs or alcohol knowing they turn into jerks, for others it may be a poor and unexpected result. If they don’t understand what they are doing, or intend to do it, they will not be guilty of any offence. If there’s no offence, there’s no sentence.

For a more detailed discussion see https://emergencylaw.wordpress.com/…/responding-to-violenc…/

There were a number of comments to that post including the following:

Hi Michael,

Firstly, I would like to emphasize that I’m not offended, I just have some questions / comments.

You mention that under mandatory minimum sentencing, it comes down to the police as to who goes to gaol. I don’t quite understand your comments on this point.

As I understand, whether a person is charged with assault comes down to two things.

1) The victim wanting to press charges, and

2) There being sufficient evidence for police to proceed with laying charges.

This does not change if there are minimum mandatory sentencing rules in effect. There would still be many instances where the victim decides that they do not want to press charges. However, if the victim wants to press charges, then assuming there is sufficient evidence, police will charge them. This does not mean the alleged offender will automatically go to prison.

The alleged offender, once charged, would still have to go to court, be able to make their case and would need to be found guilty before any sentencing is imposed. As you rightly pointed out, if the alleged offender is found not guilty for whatever reason, then there is no sentencing.

From what I understand, there are examples where following minimum mandatory sentencing for assaults against police, the rate of assaults has decreased. I certainly agree that this will not be a deterrent for all. But it will be a deterrent for some and I’m assuming that is where the incidences of a reduction in assaults have occurred. Saying that, if talking about strategies relating to reducing occupational violence, then any changes to the legal system should only be thought of as a part of the solution (with some States benefiting from changes, while others already have fairly strict legislation).

I replied:

Dear …

You say:

“As I understand, whether a person is charged with assault comes down to two things.

1) The victim wanting to press charges, and

2) There being sufficient evidence for police to proceed with laying charges. “

That is not correct. What determines whether or not charges are laid is whether police believe there is sufficient evidence and whether, all things considered, they wish to bring charges and what they charge people for. The attitude of the victim is only one consideration. If a victim does not want to cooperate with police then that may make it harder to prove but if the police think they can prove the case without the victim’s cooperation they are entitled to bring charges. If that was not the case no-one would be charged with murder or assault on children. Domestic violence is one situation where increasingly police bring charges even where the victim asks them not to because it is intended to send a message that this is a crime like any other. In the Australian criminal justice system the victim is a witness but the question of whether or not there is a crime does not depend on them. Police can bring charges the victim doesn’t want them to and can refuse to charge people even if the victims want them to. It is ultimately the Crown, not the victim, that presses charges.

As a prosecutor the police (like the Director of Public Prosecutions) has to consider many things, the evidence, the likelihood of success, the community interest in the prosecution etc (see http://www.odpp.nsw.gov.au/prosecution-guidelines).

With respect to mandatory sentences, it’s up to police to decide what to charge a person with. Assume there is a mandatory sentence for assault occasioning actual bodily harm. The police can choose to prosecute for that offence with the mandatory sentence or try a lower offence e.g. Assault that doesn’t carry the mandatory sentence. If the mandatory sentence applies to assault, they could chose to charge a person with ‘offensive behaviour’. Or perhaps they’ll make a decision to issue only a caution because they don’t think the mandatory punishment is warranted. In all these cases it’s the police who exercise discretion but not in public and without giving detailed reasons for their decision, as a judge must do.

As for a decrease in rates of ‘assault police’ I have no data on that but even if it were true it would be hard to say there was a direct causal link and that it was the increase sentence not other things that may have had that effect. It may be that courts or juries are unwilling to convict if they think the mandatory sentence is too great; some police may also chose not to prosecute for those offences in the same circumstances.

None of that denies that there will be circumstances where gaol is the appropriate penalty, but if one wants to stop violence, mandatory gaol sentences will not be effective.


Categories: Researchers

Paramedics and home birth midwives

1 April, 2016 - 12:07

This question comes from a Queensland paramedic but is relevant nation wide as it relates to interactions between paramedics and midwives.  As my correspondent says:

Some interesting points have come up about the paramedic interaction with a home birth midwife and/or a Doula at a scene and the obligations around standards of care.

What interests me, and if you don’t mind I would love your opinion are the new guidelines just published last week by the Australian College of Midwives concerning transfer of a mother from a home birth, see link below

https://www.midwives.org.au/sites/default/files/uploaded-content/field_f_content_file/20160330_-_acm_transfer_from_planned_birth_at_home_guidelines_-_endorsed.pdf

I draw your attention to page 14 onwards and the sentence ‘If circumstances escalate, the midwife recommends transfer: if the woman continues to decline transfer, the midwife calls an ambulance, requests that the personnel wait outside if possible, continues to provide care and documents the decision-making process and care provided.’

I wonder about the ‘wait outside’ legally don’t paramedics have a duty of care to assess the patient if called?

They are indeed interesting points.  The heading on p 14 is ‘Recommended Process in the Event a Woman Declines Transfer to Hospital for Herself’.  The Recommended process says ‘In the event of an emergency or birth is imminent, the midwife: … calls an ambulance and requests that the personnel wait outside if possible’.

Later:

If circumstances escalate, the midwife recommends transfer: if the woman continues to decline transfer, the midwife calls an ambulance, requests that the personnel wait outside if possible, continues to provide care and documents the decision-making process and care provided.

These recommendations are repeated in Figure 3 which a flow chart for the same ‘process’.

One wonders why someone is going to call an ambulance and then ask them to wait outside, and also what does ‘if possible’ mean?  Let us consider the issues from a legal point of view.

First health professionals need to work together.  A registered mid-wife has professional obligations to the woman and child in her care and no doubt has a prior and long standing relationship with them.  IT would be erroneous to think that is somehow secondary to the duty of the ambulance paramedics once called.  It would be inappropriate for the paramedics to simply push the midwife aside and say ‘where here now’ just as it would be inappropriate for a midwife to push aside paramedics who were already assisting a woman in labour (see also Step aside – I’m a doctor (October 17, 2014).

Professional respect should mean that paramedics when called should engage with the midwife to determine what is the situation, how it is being handled and what does the midwife think they paramedics can offer.  Working together is of course the best solution.   Working together would also require the midwife to work with the paramedics, not leave them outside until she or he is ready to call them in.  The critical issue is that all the health professionals communicate to act in the best interests of the woman and child and with due respect for the woman’s autonomy.

But, at the end of the day, the paramedics do have a duty to the person in need of care and having been called could not just ‘wait outside’ forever nor could or should they leave the scene without first talking to the woman involved, making an assessment of her condition and giving their recommendations as to whether transport to hospital is required.  If the woman is competent and informed she may refuse treatment and/or transport but they are all things the paramedics would want to document in accordance with their own treatment or protocol.    If the paramedics were to just wait outside and the patient’s condition deteriorated or she died, there would not doubt in my mind that both the paramedics and the midwife would be in breach of their professional obligations to both mother and child.

Whilst respect for patient autonomy does mean that the woman, if competent and informed, can refuse treatment and transport, the same is not so clear for the baby.   Whilst a parent can give or refuse consent for the treatment of their child that decision must be informed and in the best interests of the child (see Secretary of the Department of Health and Community Services v JWB and SMB (1992) 175 CLR 218 or ‘Marion’s case’).   A woman who is going through a critical labour and refuses treatment or transport of her infant may not be either competent or informed.   Paramedics and the midwife owe a separate duty of care toward the child who, once born, is a separate legal entity and they would have to assess that child and make a separate decision as to whether transport to hospital is needed.    The paramedics can’t do that if they are waiting outside.

The Recommended Procedure does not say how long the paramedics should be asked to wait and they may well, rightly, point out that there are other demands on their time.

Conclusion

It is my view that the recommendation that ‘the midwife calls an ambulance, requests that the personnel wait outside if possible’ is both silly and unprofessional.

It is silly as it doesn’t say how long they are expected to wait nor reflect the reality that ambulances are not available to stand by at a midwife’s convenience.

It is unprofessional as it does not recognise that the paramedics are also health professionals with their own treatment protocols, capacity to engage with their patients and their own duty of care.  It treats paramedics as old fashioned ‘load n go’ ambulance drivers (and was, presumably, written without consultation with a body such as the Australian and New Zealand College of Paramedicine or some other body representing the professional concerns of paramedics).  The ‘Recommended process’ does not encourage communication between the midwife and the paramedics to develop a plan of action to advance the interests of both mother and child.  A better statement would be:

‘the midwife calls an ambulance and, upon their arrival, discusses with the paramedics the situation at hand, treatment provided so far, details of the midwife’s concerns and recommendations and then works with the paramedics to develop a treatment plan that is in the best interests of the woman and child and gives full affect to her autonomy to the extent that she is capable of making informed health care decisions’


Categories: Researchers

Third party refusing treatment

23 March, 2016 - 15:15

Another question for first aiders:

Hi Michael, I have a question in relation to the administering of emergency first aid, especially in circumstances where the “patient” is unable to provide permission themselves.

I believe it is generally well understood that a person is able to reject first aid treatment even if the obvious outcome from rejecting that first aid assistance is dire.  However where a person is unable to make their wishes known (such as a state of unconsciousness) the First aid worker can safely assume the person would have given their consent and can commence treatment such as resuscitation, application of a defib device or whatever else the first aid person believes is appropriate.

However what happens if, upon commencing that potentially life saving treatment a third person steps forward and claims to be a close relative of the patient and demands that you cease your treatment.  I am thinking of someone claiming to be a Husband, Brother or Father.

In some cultural settings it may be perceived that the male relative always speaks for the female, but what does Australian law say about it?

Can the the person claiming to be a close relative stop the persons treatment?

Does it make a difference if the patient is a child?

I look forward to your reply.

Let me start with an essential correction.  My correspondent says

I believe it is generally well understood that a person is able to reject first aid treatment even if the obvious outcome from rejecting that first aid assistance is dire.  However where a person is unable to make their wishes known (such as a state of unconsciousness) the First aid worker can safely assume the person would have given their consent and can commence treatment such as resuscitation, application of a defib device or whatever else the first aid person believes is appropriate.

That may be generally well understood … and it’s wrong.   Let me say that again – it’s wrong.  What’s being described here is what is traditionally called implied consent and implied consent does not justify the treatment of the unconscious, the doctrine of necessity does.  If a person is not capable of making a decision, reasonable treatment may be given but you cannot assume consent. Rather the relevant law is that of necessity. In Re F [1990] 2 AC 1 Lord Goff said:

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

The problem with the notion of ‘assumed’ consent was that it provided for the legal fiction of assuming consent when people simply could not consent (eg children) or when people had clearly indicated they did not want the treatment.

So a person can receive treatment that is necessary and in their best interests but not if it is contrary to their known wishes. Can a person claiming to be a close relative of an adult stop the person’s treatment?  The answer is generally no.

If a person claiming to be a close relative demands that you cease treatment that may cause pause to think about whether they are telling you of the person’s prior wishes and can they support that, ie can they produce for example a refusal of treatment certificate.  Whether you accept that depends on the circumstances protocols and procedures of the ambulance service involved – see Withholding Resuscitation in Victoria (April 8, 2013).

If the person is the parent of a child or the adult patient’s appointed legal guardian and medical attorney (different names in different states) then they are the people entitled to make treatment decisions.  It is often the case that the treatment must accord with the patient’s known wishes and/or be in the patient’s best interests.   In many cases the consent is not required in an emergency (see for example Guardianship Act 1987 (NSW) s 37).

The common law says that a competent adult has the right to refuse treatment even if that means they will die.   The critical questions are:

  • Was the patient competent?
  • Was their refusal informed?
  • Does it cover the situation that now arises?

If the answer to those three questions is ‘yes’ then the refusal is binding, and must be honoured (see In Re T [1992] EWCA Civ 18).  If the refusal is being given by a parent or guardian the same questions have to be asked and answered.  If the parent or guardian is not fully informed because of the emergency nature of the situation and there is no time to explain their options any purported refusal will not be binding.

In short where you have a previously competent adult who is now incapable of making decisions due to the nature of their injuries or illness then no-one has the authority to refuse treatment on their behalf and treatment that is reasonably necessary and in the patient’s best interests can be given.  A parent or guardian can refuse treatment but that is not likely to be relevant in the situation of emergency first aid.

For a more detailed discussion see my book Emergency Law, (The Federation Press, 4th ed, 2013) pp 58-60.


Categories: Researchers

Lights and sirens for St John (NSW) – amended

23 March, 2016 - 13:21

This question comes from a volunteer with St John (NSW).

I have a question for you. Everyone I ask seems to provide a different answer.

Current NSW has red lights and sirens on their vehicles.

Is St John entitled to have lights and sirens independently? If the answer to the previous question is yes, are we then entitled to move to red and blue lights?

Some believe our authority comes from Ambulance. And we always intend to work closely with Ambulance on these matters. However I am keen to know the legal position.

There is no way St John’s authority to have red lights (or red/blue lights) and siren comes from an affiliation with the Ambulance Service of NSW.  It has to come independently.   The relevant rules are in the Road Transport (Vehicle Registration) Regulation 2007 (NSW).    The Vehicle Standards are set out in Schedule 2.

Clause 33(2) says that a ‘motor vehicle must not be fitted with a device that can make a sound like the sound of a siren, exhaust whistle, compression whistle or repeater horn’.  This rule does not apply to, amongst other things, an ‘emergency vehicle’ (cl 33(3)(b)).    An emergency vehicle includes a vehicle that is being driven by ‘a member of the Ambulance Service rendering or providing transport for sick or injured persons’ (Schedule 2, Dictionary).  Note that it says ‘the Ambulance Service’, not ‘an ambulance service’ so one has to infer that means the Ambulance Service of NSW.

An ‘emergency services vehicle’ (which is different to an ‘emergency vehicle’) may be fitted with flashing headlights (cl 86).  An ‘emergency service vehicle’ includes ‘an ambulance’ (cl 86(7)(b)).  Does St John Ambulance (NSW) operate an ambulance?   ‘Ambulance’ is not defined.  According to the oxford dictionary (online) it is ‘A vehicle equipped for taking sick or injured people to and from hospital, especially in emergencies’.  I’m sure many of the vehicles used by St John would be considered an ‘ambulance’ even if they are not actually used for patient transport.  (For a similar discussion see Does St John Ambulance (Vic) operate ambulances? (March 26, 2015)).  The critical issue will actually be the attitude of the Roads and Maritime Services (RMS).  If there is some endorsement on the registration papers that the vehicle is an ‘ambulance’ then it is indeed an ambulance for the purpose of these rules in which case you can have the flashing headlights.  :

A vehicle must not have ‘a light that flashes or rotates’ or ‘shows a red light to the front’ or ‘shows a blue light’ (cl 124(2)) unless it is provided for in the rules.   Ambulances may be fitted with ‘a light or lights, at least one of which must be mounted on top of the vehicle, capable of displaying a flashing or rotating light’ (cl 124(4)).   In the case of an ambulance the light that may be displayed is ‘a blue or red light’ (cl 124(7)(a)).   One would normally read ‘or’ as a disjunct, ie a blue or a red light, not a blue and a red light, but clearly practice is to have both.

A ‘Red Cross vehicle, a mines rescue or other rescue vehicle or an emergency vehicle within the meaning of the Road Rules 2014…’ (other than vehicles listed in cl 124(7)(a) which includes an ambulance) are only to display a red light (cl 124(7(b)). An emergency vehicle within the meaning of the Road Rules 2014 (NSW) is a vehicle driven by an emergency worker which includes a vehicle driven by a ‘person (or a person belong to a class of persons) approved by the Authority’.

Even if the vehicles are not an ‘ambulance’ and even if St John volunteers are not appointed as ‘emergency workers’, the RMS may issue an exemption from any of the provisions of the Vehicle Standards (cl 10).  It follows that if there is a specific authority issued by RMS, St John may fit flashing lights and/or a siren in accordance with that authority or exemption.

So where does that leave St John (NSW)?

  1. If St John (NSW) vehicles are registered as an ‘ambulance’ then you can have flashing headlights and red/blue flashing lights. They cannot have a siren.
  2. If the vehicles are not registered or somehow endorsed by RMS as an ‘ambulance’ (and assuming St John doesn’t want to get an infringement or defect notice and then go to court to argue that they are in fact an ambulance) then has the RMS approved St John drivers’ as ‘emergency workers’? If they have then the vehicles are ‘an emergency vehicle within the meaning of the Road Rules 2014’ and you can have red flashing lights.  They cannot have a siren.
  3. If the vehicles are not an ‘ambulance’ and St John volunteers are not approved as ‘emergency workers’ St John would need an exemption issued by the RMS (cl 10) to fit flashing lights.
  4. To have a siren St John would need an exemption from cl 33(2) issued by RMS (cl 10).

Relevant flow charts are below:


Categories: Researchers

Operating as a private paramedic

22 March, 2016 - 22:28

I suspect this correspondent wants to start a business.  He or she says

I know you have discussed various legislation and regulation that covers Private Ambulance Services, but these tend to imply a transportation service.  My question relates to a Private Paramedic Service that does not transport…..

An example would be Expedition Medicine.

Groups that undertake expeditions in to remote or difficult areas might want to employ the services of a trained Paramedic who can provide emergency pre-hospital care.  This wouldn’t necessarily include transport, it would most likely involve life saving procedures and/or invasive procedures such as IV access for fluid therapy and of course appropriate drugs.

Repatriation would most likely be left to the appropriate government agency, for example a state ambulance service, but in remote areas this may be delayed.

My question is how can this operate?  Is there legislative provision, in any state, for such a service to be set up by a private company or individual.  How can authority be gained to administer medical procedures or drugs that a Paramedic would normally be trained in, without the usual authority that is gained by employment through an ambulance service?

Putting aside, for one minute, the use of drugs.

If you are in WA or the NT go for it.  There is no legislation.

If you are in South Australia, you cannot operate an ambulance service without a license (Health Care Act 2008 (SA) s 60).  But an ambulance service, in that State, is ‘service of transporting by the use of an ambulance a person to a hospital or other place to receive medical treatment or from a hospital or other place at which the person has received medical treatment’.  If my correspondent does not intend to transport persons the he or she is not providing an ambulance service and s 60 is not applicable.

In SA a person cannot be described as a ‘paramedic’ unless the person holds the prescribed qualifications (Health Practitioner Regulation National Law (South Australia) Act 2010 (SA) Sch 2, cl 120A and Health Practitioner Regulation National Law (South Australia) Regulations 2010 (SA) r 11A).

In Queensland ‘A person … is not to directly or indirectly imply that the person provides or participates in providing ambulance transport without the approval of the Minister and except in accordance with such conditions (if any) as the Minister may impose’ (Ambulance Service Act 1991 (Qld) s 43).   My correspondent is not intending to provide ambulance transport so there would be no offence contrary to s 43.

In Victoria it is an offence to claim to have any relationship with or be part of Ambulance Victoria or to use the word ‘ambulance’ or ‘ambulance service’ (Ambulance Services Act 1986 (Vic) s 39).  It would be easy for my correspondent to avoid using ‘Ambulance’ in any business title and ensure that there is no suggested link with Ambulance Victoria.

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

(1) A person must not:

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

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

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

My correspondent is not proposing to provide ambulance transport so s 67E(1)(a) does not apply but it is arguable that s 67E(1)(b) does as the Ambulance Service of NSW will provide on site emergency medical care if requested and paid to do so.

In any event a person cannot use the title ‘paramedic’ in New South Wales unless he or she holds the prescribed qualifications or is an authorized employee of NSW Ambulance (Health Services Act 1997 (NSW) s 67ZDA; see also What are the prescribed qualifications for a paramedic in NSW? (January 20, 2016).

In Tasmania, the Ambulance Service Act 1982 (Tas) s 37 says:

A person shall not provide ambulance services similar to the services provided by the Commissioner under this Act without the written consent of the Commissioner and except in accordance with such conditions (if any) as the Commissioner may from time to time impose in relation to the provision of ambulance services by that person.

Ambulance Services are ‘the work of rendering out-of-hospital clinical care to, and the conveyance of, persons suffering from illness or injury’ and it certainly sounds like that is what my correspondent intends to do.

It is an offence to use the title ‘paramedic’ in Tasmania unless a person is an employee of Ambulance Tasmania and holds the appropriate qualification or is otherwise approved under the regulations (Ambulance Service Act 1982 (Tas) s 3AB).

In the ACT it is unlawful to provide ambulance services without permission (Emergencies Act 2004 (ACT) s 63).   Ambulance services are ‘the provision of medical treatment and pre-hospital patient care, and includes the transport of a patient by ambulance or medical rescue aircraft’ (s 60).  The use of the word ‘includes’ shows that transport is not an essential part of ambulance services, that is transport is part of ambulance services, they are ‘included’ in the definition.  Even so the provision of pre-hospital patient care without transport is sufficient to meet the definition.

Conclusion so far

  • You can operate as a private emergency health care provider:
    • In WA and NT;
    • In Queensland and South Australia provided you are not providing ‘transport’;
    • In Victoria provided you do not use the word ‘ambulance’ or claim any affiliation with Ambulance Victoria;
    • In NSW provided you are not providing services ‘similar to the operations carried on by the Health Secretary’ that is by New South Wales Ambulance.
  • You cannot provide ambulance services, without permission, in Tasmania or the ACT.
  • You cannot use the title ‘paramedic’ unless you hold the prescribed qualifications in South Australia, Tasmania and New South Wales.

Drugs

As I’ve noted earlier paramedicine is a largely unregulated field and there is no law to stop a person providing ‘life saving procedures and/or invasive procedures such as IV access for fluid therapy…’ provided they know what they are doing.  The key issue is drugs.  It is unlawful in every state to use, carry or administer scheduled drugs.  The key drugs in emergency medicine may be listed in schedules 2, 3, 4 or 8 of the Poisons standard.

Each jurisdiction has a process to allow authorities to be granted to relevant people or organisations to allow them to use scheduled drugs in accordance with their training (see for example, Poisons and Therapeutic Goods Regulation 2008 (NSW) Appendix C).

So if my correspondent wants to use ‘appropriate drugs’ he or she would need to contact the relevant Health Department and determine what they require in terms of training, clinical control and security and apply for the relevant authority to possess and administer the drugs that were ‘appropriate’.

Paramedic registration

Think how much easier it would be if paramedics were registered?  As part of their registration they could have the authority to carry ‘appropriate drugs’ so anyone who wanted to provide this sort of service need only employ a ‘registered paramedic’ and it would be clear what drugs they could use and carry.

It would be clear to any client what service they could provide as they could call themselves a ‘paramedic’ and the client would know that only registered paramedics could use that title (unlike the situation now in WA, NT, Victoria, Queensland and the ACT where anyone can call themselves ‘a paramedic’ or Tasmania where only employees of the Ambulance Service can use the title).

As my correspondent has noted; many of these issues have been raised previously.  See for example:

See also my submission to the Senate Inquiry into The establishment of a national registration system for Australian paramedics to improve and ensure patient and community safety.


Categories: Researchers

Ignoring emergency service road blocks

22 March, 2016 - 21:20

That is not quite the subject of the article that my colleague Luke Dam has brought to my attention ( Julie Hedjes, ‘Emerald and Cockatoo CFA volunteers abused by motorists at crash scene roadblocks’, Leader, 21 March 2016) but I think it is the interesting point for me to comment on.

The gist of the story is the bad behaviour of motorists

‘CFA volunteers are being abused and in some cases, have their lives endangered by impatient drivers angry about roads being blocked during emergencies… one driver went through the roadblock, only to find that the road was indeed blocked and he was then stopped by police who were also at the rescue’.

But what to do about them?  The obvious answer is to charge people who ignore the CFA advice that the road is closed.  But can that be done?  An interesting anomaly in lots of emergency service legislation is that the emergency services are given the power to close a road, but there is no offence created if a driver ignores them.

That is not the case for Victoria SES.  In Victoria, the State Emergency Service may close a road at a ‘traffic emergency’ – that is an emergency arising from a transport accident or flood or storm.  But they may only close the road if there are no police present and the senior ‘authorised emergency worker’ believes it is necessary to direct traffic; or the most senior police in attendance asks to SES to direct traffic.  It is an offence to fail to comply with the directions given by an ‘authorised emergency worker’ (Victoria State Emergency Service Act 2005 (Vic) s 40).  The maximum penalty is a fine of 2 penalty units.  A penalty unit is $151.67 so the maximum fine is $303.34.

But this story is about the CFA?  The CFA can also close a road ‘for the purpose of protecting life, property or the environment, or if … smoke from a fire impairs visibility on any  road  to such an extent that the safety of any persons using the  road  is endangered…’ (Country Fire Authority Act 1958 (Vic) ss 30(f), 44A).   There is however no offence provided for failing to comply with directions given under these sections.  There is an offence of obstructing, hindering or interfering with a CFA officer performing a duty under the Act (s 107) and the CFA can provide road rescue services (s 97B) so that could be a relevant offence but it is certainly not as clear as the provisions in the SES Act.

So why have the power if it’s not enforceable?  An agency like the CFA needs a road closing power because it is generally an offence to obstruct traffic or close a road.  A person has a right to travel along a road (Road Management Act 2004 (Vic) s 8) so if an agency like the CFA wants to deny someone that right, they need lawful authority to do so (s 8(5)).    Sections such as s 30(f) and 44A of the CFA Act are required to ensure the CFA is not, itself, breaking the law but it does not follow it is an offence to ignore their direction.

It is an offence to fail to comply with a reasonable traffic direction issued by a police officer (Road Safety Act 1986 (Vic) ss 59 and 64A).

So drivers are driving past CFA road blocks.  They may be committing general driving offences such as negligent or dangerous driving depending on the circumstances.  If they actually hit someone you can be sure that some offence has been committed.  What appears to be a continuing anomaly, except where the road block is being operated by Victoria SES, is that there is no actual offence of failing to recognise that a road is closed just because the CFA says so.

 

 

 

 


Categories: Researchers

Excluding good Samaritan protection for the intoxicated

17 March, 2016 - 10:33

A correspondent has brought to my attention that the ACT legislature has passed the Health Legislation Amendment Act 2015 (ACT).  One effect of this Act is to amend the Civil Law (Wrongs) Act 2002 (ACT) to provide good Samaritan protection for those who administer ‘naloxone, honestly and without recklessness, to a person apparently suffering from an overdose of an opioid drug for the purpose of resuscitating the person’.

Before the amendment the Act said (at s 5):

(1) A good samaritan does not incur personal civil liability for an act done or omission made honestly and without recklessness in assisting, or giving advice about the assistance to be given to, a person who is apparently—

(a) injured or at risk of being injured; or

(b) in need of emergency medical assistance.

(2) However, the protection does not apply if—

(a) the liability falls within the ambit of a scheme of compulsory third-party motor vehicle insurance; or

(b) the good samaritan’s capacity to exercise appropriate care and skill was, at the relevant time, significantly impaired by a recreational drug.

(3) In this section:
good samaritan means—

(a) a person who, acting without expectation of payment or other consideration, comes to the aid of a person who is apparently—

(i) injured or at risk of being injured; or

(ii) in need of emergency medical assistance; or

(b) a medically qualified person who, acting without expectation of payment or other consideration, gives advice by telephone or another form of telecommunication about the treatment of a person who is apparently—

(i) injured or at risk of being injured; or

(ii) in need of emergency medical assistance.

medically qualified—a person is medically qualified if the person—

(a) is a doctor; or

(b) has professional qualifications in a field of health care that are recognised under an Act; or

(c) works, or has worked, as a member of the ambulance service or in another paramedical capacity.

The amendment adds a new subsection 3 which says:

Despite subsection (2) (b), if a good samaritan administers the drug known as naloxone, honestly and without recklessness, to a person apparently suffering from an overdose of an opioid drug for the purpose of resuscitating the person, the protection under subsection (1) applies even if the good samaritan’s capacity to exercise appropriate care and skill was, at the time of administering the drug, impaired by a recreational drug.

(The definition section is then renumbered as sub-section 4).

Recreational drug means ‘a drug consumed voluntarily for non-medicinal purposes, and includes alcohol’ (Civil Law Wrongs Act 2002 (ACT) s 2).

Having drawn the change to my attention, my correspondent says ‘I look forward to your opinion’; which I’m happy to share.

The first thing to note is that the new sub-section (3) doesn’t imply that a person who administered ‘naloxone, honestly and without recklessness, to a person apparently suffering from an overdose’ would not have enjoyed good Samaritan protection even without the amendment.   A sober person could have used naloxone and relied on s 5(1).

What’s interesting is the provision that says a person who uses naloxone enjoys good Samaritan protection even if their ‘capacity to exercise appropriate care and skill was, at the time of administering the drug, impaired by a recreational drug’.  What that means is that exclusion contained in s 5(2)(b) does not apply.

What’s my opinion on that change?  That’s all well and good, it is likely that people who are with someone who is suffering an opiod overdose may well have taken the same drug so they may be affected and if they need protection to take steps to save their friends life, all well and good.

My opinion is that s 5(2)(b) is a complete rubbish section and should be removed.  Its presence defeats the purpose of the Act.  Remember that there are no reported cases of anyone being sued for rendering emergency first aid – that’s no one, ever – see The risk of liability for performing emergency CPR is overstated – even in the USA (October 7, 2015).

Legally, the good Samaritan provisions are not necessary.  As the Ipp Review on the Law of Negligence reported (Final Report (Commonwealth of Australia, 2002), [7.21]-[7.24]; emphasis added):

The Panel understands that health-care professionals have long expressed a sense of anxiety about the possibility of legal liability for negligence arising from the giving of assistance in emergency situations. However, the Panel is not aware, from its researches or from submissions received by it, of any Australian case in which a good Samaritan (a person who gives assistance in an emergency) has been sued by a person claiming that the actions of the good Samaritan were negligent. Nor are we aware of any insurance-related difficulties in this area.

Under current law, the fact that a person (including a health- professional) was acting in an emergency situation is relevant to deciding whether the person acted negligently. It may be reasonable in an emergency situation to take a risk that it would not be reasonable to take if there was no emergency, provided that precautions appropriate to the circumstances are taken to prevent the risk materialising.

The Panel’s view is that because the emergency nature of the circumstances, and the skills of the good Samaritan, are currently taken into account in determining the issue of negligence, it is unnecessary and, indeed, undesirable to go further and to exempt good Samaritans entirely from the possibility of being sued for negligence. A complete exemption from liability for rendering assistance in an emergency would tip the scales of personal responsibility too heavily in favour of interveners and against the interests of those requiring assistance. In our view, there are no compelling arguments for such an exemption.

So if there was no legal problem to be solved why was the legislation introduced? Answer, to solve a perception problem – that is if people had ‘a sense of anxiety about the possibility of legal liability for negligence arising from the giving of assistance in emergency situations’ and that made them unwilling to come forward, enacting good Samaritan legislation might remove that anxiety and therefore encourage people to act.  No doubt a good and sufficient motivation.

But why add s 5(2)(b) when that would be when the Act is really needed.  Imagine an off duty paramedic out with a few mates and someone collapses or is injured right near them.  That is where you have someone with expert skills who, if stone cold sober, would step up and perhaps save a life (or at least give the person their best shot).   They would be protected by the good Samaritan law even though no such protection was required.  But now they’ve had a drink or two  – a perfectly lawful thing to do.  When you’re out drinking that is when you are likely to come across accidents and injuries but now that paramedic loses the good Samaritan protection but surely that is when we want him or her to step up and do their best and that is when they need protection.  They’re honestly trying to help but may not be performing at their normal level, but if ‘“Any Attempt at Resuscitation is Better Than No Attempt” (Australian Resuscitation Council http://resus.org.au/) they should be encouraged to act – ‘don’t worry we know you may not be performing at your best but anything you do is better than nothing and you won’t be held to the same professional standard as you would be if you were at work’.   As it is anyone who can help is actively discouraged from helping.  And let’s face it, we’d all rather die than risk being treated by someone who’s consumed alcohol or drugs!

And why does the ACT remove that clause when administering naloxone but no other treatment? The opioid user who administers naloxone enjoys the protection but if he or she fails to also put the person in the stable side position or performs rubbish CPR they don’t have that protection because there the treatment may be negligent (albeit in good faith) but s 5(2)(b) applies.

Finally a provision denying protection to those affected by drugs or alcohol does not apply in Victoria (Wrongs Act 1958 (Vic) s 31B) or Queensland (Law Reform Act 1995 (Qld) s 16).

Conclusion

My opinion is that the good Samaritan legislation was introduced to resolve a perception problem not a legal problem.  Having enacted good Samaritan legislation however, every jurisdiction other than Victoria and Queensland have moved to make the legislation ineffective when it might actually be needed that is when a person who could actually help knows they’re not performing as they might at work.   It is then that people should be reassured that if they do their best to help they won’t be liable because doing something is better than doing nothing.

Do I think the new provisions in s 3 of the ACT Act are a good idea?  Yes, but the section doesn’t go far enough.  If an opioid user needs to control the life threatening haemorrhage, or do CPR or otherwise treat their ‘mate’ they, like everyone, should enjoy the good Samaritan immunity because reassuring people that they won’t be liable for honestly doing their best to help in an emergency and before the emergency services get there, is the very point of the Act.


Categories: Researchers

Drink-driving conviction and implications for employment as a Victorian paramedic

16 March, 2016 - 14:50

A correspondent from Victoria finds herself in quite a bit of trouble and is ‘feeling very lost and in need of guidance’.  Despite the unfortunate nature of her problem she says she ‘sought advice from my unit head … and she turned me onto your blog. You are welcome to post this on your blog if it would answer other people’s questions as well’.   With that invitation I do post the details and my answer here.

I got caught DUI (0.12) after a big night out, and I lost my license on the spot and will have to go to court. I will be graduating in two years’ time and want to know if this will affect my application.  I have heard I shouldn’t bother applying until at least five years, so I would drop out and try again in a couple of years.

On one view this is not a legal question; the issue of who they select for employment is entirely a matter for Ambulance Victoria.  They do provide some advice at www.ambulance.vic.gov.au/About-Us/Careers/New-Graduates.html where they say that an applicant for graduate employment must hold “A full Victorian driver’s licence or held a P2 probationary licence for at least 1 year prior to commencement”.  That invites some consideration of what is a full licence and other issues of the relevant law which I’ll address.

DUI is shorthand for ‘Drive under the influence’ (Road Safety Act 1986 (Vic) s 49(1)(a)).  That section says:

A person is guilty of an offence if he or she—

(a) drives a motor vehicle or is in charge of a motor vehicle while under the influence of intoxicating liquor or of any drug to such an extent as to be incapable of having proper control of the motor vehicle;

The critical issue here is not the level of the alcohol in the blood but whether or not the driver is ‘under the influence … to such an extent as to be incapable of having proper control of the motor vehicle’.  The police don’t need a breath test to prove this offence and you can be under the legal limit and still ‘under the influence’.  People use DUI as a shorthand for all drink driving offences but that’s not the relevant offence here.

In my correspondent’s case the relevant offence is ‘driving with the prescribed concentration of alcohol’ (often referred to as PCA).   The essential issue in this offence is that when subjected to a breath analysis the driver has ‘more than the prescribed concentration of alcohol is present in his or her blood or breath’ (Road Safety Act 1986 (Vic) s 49(1)(b)).  The issue is not whether or not you are under the influence but whether the breath or blood test returns a reading above the legal limit.  The ‘prescribed concentration of alcohol’ is ‘a concentration of alcohol present in the blood of that person of 0·05 grams per 100 millilitres of blood’ or ‘a concentration of alcohol present in the breath of that person of 0·05 grams per 210 litres of exhaled air’ (s 3).

A police officer may immediately suspend the drivers’ licence of any person who is caught driving with a reading of 0.10 or higher (Road Safety Act 1986 (Vic) s 51).

The maximum fine for a first offence where the reading is less than 0.15 is 20 penalty units (s 49(2A). As at 1 July 2015 the value of a penalty unit, in Victoria, is $151.67 (http://www.justice.vic.gov.au/home/justice+system/fines+and+penalties/penalties+and+values/) so the maximum fine is $3033.40.  The driver will also face a minimum period of disqualification from driving of 12 months.  The maximum period of disqualification is ‘such time as the court thinks fit’ (s 50(1)(a)(ii) and Schedule 1).

After 12 months the driver can apply to have her licence renewed.  To do that she needs to apply to the Magistrate’s court for a ‘licence eligibility order’ (s 31A).    When making an order to the effect that the person is eligible to gain a drivers’ licence the court may, and in some cases must, make a ‘alcohol interlock condition direction’ (s 50AAA).  Where the offence was an offence contrary to s 49(1)(b), was a first offence, was committed on or after 1 October 2014 and with a reading of less than 0.15 (which is the case here) the court must impose an ‘alcohol interlock condition direction’ for 6 months.  During that time the driver must only operate a vehicle with an approved alcohol interlock device is fitted (s 50AAA (2) and Schedule 1B, cl 14A).

If the driver was under the age of 25 at the time of the offence she must also complete an accredited driver education program (s 50A).

VicRoads say that when your licence is reissued it will be the same as the one previously held (that is a full licence holder does not go back to “P’s” etc).  See also ‘Getting your licence back’ (https://www.vicroads.vic.gov.au/licences/licence-and-permit-types/licence-conditions) and https://www.vicroads.vic.gov.au/licences/demerit-points-and-offences/drink-driving-offences/getting-your-licence-back-after-a-drink-driving-offence).

Is 5 years a golden number?  Not in Victoria.  There is no ‘spent conviction’ legislation in Victoria.   A criminal record will reveal all prior convictions no matter how old (Criminal Procedures Act 2009 (Vic) s 77) unless the offender was aged under 18 years and the offence was committed more than 10 years ago.  For future driving offences a driver is a considered a ‘first offender’ if their last conviction was more than 10 years ago (Road Safety Act 1986 (Vic) s 50AA).

Victoria Legal Aid advise that if you, or someone you authorize, applies for a copy of your criminal record it will only reveal convictions less than 10 years old (see ‘How far back do criminal record checks go?’ at https://www.legalaid.vic.gov.au/find-legal-answers/going-to-court-for-criminal-charge/possible-outcomes-for-criminal-offences/criminal-records) but I can’t see any legislative basis for that limitation.  It appears that this rule is a product of the Victoria police ‘release policy’ (see ‘Frequently Asked Questions – National Police Certificate’ http://www.police.vic.gov.au/retrievemedia.asp?Media_ID=34692).

Conclusion

Let us assume all of this has been done and my correspondent has had her licence returned and served her 6 month interlock period.  Then she has a full driver’s licence.  Can she now apply to Ambulance Victoria (AV)?  It would seem that she then meets the criteria of ‘A full Victorian driver’s licence’ but that doesn’t mean AV have to give her a job.  There are many paramedic graduates, no doubt more graduates than there are jobs and no doubt AV will rank them in order of preference.  AV may well decide that a prior conviction and a prior traffic conviction in particular makes someone a less desirable candidate that a person with no prior convictions.   How AV deals with this issues is not a legal question (ie there is no relevant law on the matter) but one of their own policy.  To answer how they will approach the matter my correspondent will need to make enquiries with AV.   One hopes that they take the approach that a person, having suffered the penalty imposed by law, has ‘done the time’ and been punished for their offending so the prior conviction is irrelevant, but that can’t be guaranteed.    As Victoria Legal Aid say (see ‘Is it fair to be asked?’ at https://www.legalaid.vic.gov.au/find-legal-answers/going-to-court-for-criminal-charge/possible-outcomes-for-criminal-offences/criminal-records):

There are no laws in Victoria against employers who discriminate against someone because of a criminal record. However, the Australian Human Rights Commission may be able to help with complaints.

 Post script

Neither my correspondent, nor anyone else, should rely on these comments, particularly in relation to sentencing.  Sentencing is a very complex matter and courts do have discretion that I haven’t discussed fully in order to keep the answer relevant and not too complex.  If you are facing a criminal charge, including DUI or PCA you should seek a solicitor or barrister of your choice to represent you in court and to make sure all of the options open to the court are explained to you, and explored with the Magistrate or Judge.    If you don’t already have a lawyer you may like to look at the Law Society/Law Institute website in your state or territory to find a list of accredited specialists in criminal law. (In Victoria go to http://www.liv.asn.au/Specialists)

 


Categories: Researchers

Use of artifical airway by a sports volunteer

14 March, 2016 - 13:34

This question comes from a volunteer sports trainer for a local club.   My correspondent writes:

The [organisation for which I volunteer] recently outsourced their training and qualifications to a private first aid company’s. I recently upgraded my qualification to a level 2 trainer.  During this training we have been shown how to insert advanced airways called i-gel. This training took less than an hour. I have since spoken to a number of paramedics from two different states who both tell me that, as paramedics, they were taught to use these over a number of months. They provided the advice not to use them unless I had oxygen and suction as problems can happen. Clubs across Australia generally don’t have oxygen and suction due to cost and laws about storage. I called the person within the organisation who looks after sports trainers and was told there was no policy to allow me to use them. So I’m confused, as I have been shown as part of my first aid training, and I use them in the setting of the organisation, can I be held liable as I have been given the training as part of a first aid qualification. I’m trying to do the right thing any advice would be appreciated.

This is quite a complex question and turns more on the science and the facts than it does the law.

To get a handle on the facts I looked at the i-gel product information.  According to the manufacturer, the i-gel is a ‘supraglottic airway’ that ‘has changed the face of airway management and is now widely used in anaesthesia and resuscitation across the globe’ (http://www.intersurgical.com.au/info/i-gel).  Further (at http://www.intersurgical.com.au/info/i-gel-emergency-medicine):

The i-gel O2 has been designed to facilitate ventilation as part of standard resuscitation protocols… However, the i-gel O2 incorporates a supplementary oxygen port, so it can also be used for the delivery of passive oxygenation, or Passive Airway Management (PAMTM), as part of an appropriate CardioCerebral Resuscitation (CCR) protocol.

I infer from that that the if the i-gel is used ‘as part of standard resuscitation’ but the optional i-gel 02 provides for ‘supplementary oxygen’ that, at least according to the manufacturer, oxygen is not necessary when using the i-gel.

The manufacturer provides links to evidence to support the use of the i-gel airway (http://www.intersurgical.com/info/resuscitation-evidence).  The Australian Resuscitation Council talks about the i-gel in guidelines published for Advanced Life Support (not basic first aid).  The ARC says in Guideline 11.6 – Equipment and Techniques in Adult Advanced Life Support – January 2016 (emphasis added):

2.3 Advanced airway devices

The endotracheal tube has generally been considered the optimal method of managing the airway during cardiac arrest. There is evidence that without adequate training and experience, the incidence of complications, such as unrecognized oesophageal intubation, is unacceptably high. Alternatives to the tracheal tube that have been studied during CPR include the bag-valve mask device and advanced airway devices such as the laryngeal mask airway (LMA), i-gel, laryngeal tube, and oesophageal-tracheal combitube (Combitube).

There is insufficient data to support the routine use of any specific approach to airway management during cardiac arrest.

And later in [2.4]

Supraglottic airway (SGA) devices (e.g. LMA, Laryngeal tube, i-gel, Combitube) are generally considered easier to insert than tracheal tubes. They can be inserted without interrupting chest compressions, and their use in cardiac arrest has been increasing. Ten studies have compared a variety of SGA devices with the tracheal tube during out of hospital cardiac arrest… There is insufficient data to support the routine use of any specific approach to airway management during cardiac arrest.

ANZCOR suggests using either a supraglottic airway or tracheal tube as the initial advanced airway during CPR for cardiac arrest in any setting….

Values and Preferences

In the absence of sufficient data obtained from studies of IHCA, it is necessary to extrapolate from data derived from OHCA. The type of airway used should depend on the skills and training of the healthcare provider. Tracheal intubation requires considerably more training and practice. Attempted tracheal intubation may result in unrecognised oesophageal intubation and increased hands-off time in comparison with insertion of an SGA. Both an SGA and tracheal tube are frequently used in the same patients as part of a stepwise approach to airway management.

What I infer from that is that an airway such as the i-gel is easier to use and requires less training than tracheal intubation but it is still an advanced skill.  There is no clear data that leads the resuscitation council to recommend either the use, or non-use, of the i-gel airway. What airway is preferred ‘should depend on the skills and training of the healthcare provider’.

I don’t know what sort of skills a ‘level 2 trainer’ is meant to have, who sets the syllabus for their training and whether they are expected to provide advanced life support over basic first aid.    As noted before however, this area is largely unregulated.  There is no hard ‘law’ (ie an Act of Parliament) about who can do what. A person can use an i-gel airway (or any other sort of airway) if they know how to use it including the indications, and contra-indications, for use.

Discussion

If an airway is used and if it causes complications or an adverse outcome for the patient, and if the patient sought a remedy for that use the question would be whether or not the person who used the airway took reasonable care.  The question of what is reasonable depends on all the circumstances but it is not answered by asking ‘did they perform as trained?’ or ‘were they acting in good faith?’ (see Vicarious liability for the actions of fire wardens (March 5, 2016)).

My correspondent has done the training that the sports organisation asks of a level 2 trainer and the training included the use of the i-gel airway. If the advice from the paramedics is correct, that is that their training took a number of months and that the airway should not be used without a supply of 02 and suction then it may be that the training was not appropriate.  To answer that one would need to look at the science and the pedagogy behind the training and the syllabus.   Let us assume for the sake of the argument that the training was inadequate and that my correspondent uses the airway and causes injury because there is no 02 supply or he or she fails to recognize that the airway is not working as intended.

The patient (who of course has no choice in who treats them in an emergency) would be able to say that the care they received was not ‘reasonable’.  The hypothetical reasonable person properly trained in the use of the airway would not have done what was done and in that case they would not have suffered the damage.  In that case there could be liability (but the question of who is liable is something I’ll turn to, below).

Assume, on the other hand the training was just fine (perhaps the paramedics were trained in the use of the i-gel 02, or just got further advanced training, or perhaps the training regime has changed, or they thought my correspondent meant intubation instead of an SGA device, who knows).   In that case if my correspondent uses the device as trained there will be no liability as there is no negligence even if there is an adverse outcome.

Who is liable?

My correspondent says that the organisation for which they volunteer have advised that there is ‘no policy … to allow me to use them’ but I infer from that they did not say there is a policy that prohibits their use.  I infer that the organisations policies are simply silent on the matter.  But of course they’re not silent, my correspondent went to training arranged by the organisation and that training, I’m told, included the use of the i-gel airway.

My correspondent has said that the role of a trainer is a volunteer role and let me assume that the sporting organisation involved meets the definition of a ‘community organisation’ (Civil Liability Act 2002 (NSW) s 60).   In that case the volunteer is not personally liable for any action done in the good faith performance of his or her duties (s 61).    It follows that if my correspondent uses the airway in the course of his or her duties then he or she is performing those volunteer duties and provided the action is ‘in good faith’ that is an honest attempt to perform as trained to benefit the person in need, there will be no personal liability even if the treatment is substandard and even if that is because the training was poor.

Will the organisation be liable if the volunteer trainer was negligent?  In all jurisdictions other than in NSW the answer would be ‘yes’ (Civil Law (Wrongs) Act 2002 (ACT) s 9; Personal Injuries (Liabilities and Damages) Act 2003 (NT) s 7; Volunteers Protection Act 2001 (SA) s 5; Civil Liability Act 2002 (Tas) s 48; Wrongs Act 1958 (Vic) s 37; Volunteers and Food and Other Donors (Protection from Liability) Act 2002 (WA) s 7).   New South Wales has the Civil Liability Act 2002 (NSW) s 3C.  This is a unique section that says:

Any provision of this Act that excludes or limits the civil liability of a person for a tort also operates to exclude or limit the vicarious liability of another person for that tort.

What that implies is that if a volunteer, in this case the trainer, can rely on s 61 to say that there is no liability for the good faith performance by a volunteer of their volunteer duties, then the organisation for which they volunteer is also able to rely on that to say that they are not vicariously liable.  The way around that is that an injured person would argue that they are not saying the volunteer was negligent, but that the sporting or community organisation negligent for not ensuring that the person was appropriately trained, that the training was appropriate, that the person was actually up to the task etc.  It may be a bit of a fiction but in the right case if there really was a person who was injured because of the poor performance of a volunteer (either because they failed to apply the skills or their training was inadequate to start with) then I’m sure a judge would find a way to say that it was the organisation was negligent in its own right and still award damages. The outcome is the same by either route, albeit more complex and less certain in NSW, and that is that it would be the community organisation that would be liable if there was negligence.

The Civil Liability Act 2002 (Qld) does not say whether a community organisation is or is not liable when a volunteer is protected but I would infer from the common law principles that in the absence of a section like s 3C, the organisation would be liable.

Remember that if there is no negligence, the training was appropriate and the skills are correctly applied, then there is no liability even if there is a poor outcome.

Conclusion

My correspondent’s question was ‘can I be held liable as I have been given the training as part of a first aid qualification’ and I would add the inference that it was part of a first aid qualification that the organisation for which he or she volunteers required.  In those circumstances my answer would be that if the person applies that training and does so in ‘good faith’ (genuinely trying to help) then it will be the organisation for which they volunteer that is liable should the treatment be negligently applied and should that cause a poor outcome.   Remember of course that if a person needs resuscitation, a poor outcome is on the cards and a poor outcome does not prove negligence (see The risk of liability for performing emergency CPR is overstated – even in the USA (October 7, 2015) and CPR success: TV v Reality (September 3, 2015)).


Categories: Researchers

Intercepting emergency service pager messages – amended

9 March, 2016 - 09:33

I have received two questions about this issue, both from Victoria.  My first correspondent wrote:

Recently my Fire Brigade in Victoria has opted to implement an emergency response system. The system basically takes the emergency information which is sent to the brigade via pager, and from this creates a map of the shortest route, nearby hydrants, weather etc. There are a number of these types of programs around and many of them are already in use in other Brigades and emergency services.

It’s all automatic. One system uses existing off air decoder infrastructure which is already installed at each fire station and generates the response information automatically using software designed by the owner of the company. Another system “taps into” the network using its own radio receivers and again generates the information automatically using software designed by the owner.

There has been much discussion regarding the legality of such a program and whether or not we are committing an offence by using them. I have tried to research the law which governs the use of this information however have been unsuccessful in finding the relevant legislation. Are you able to point me in the right direction and/or provide your advice on the subject?

I declined to address that as it was just too far outside my area of expertise and I didn’t have sufficient detail to understand the issue.  I have now received a second question from another correspondent who included a memo from Victoria SES dated 6 March 2016 headed ‘Enhanced Messaging Systems for Member Availability and Operational Response’.  My (second) correspondent wrote:

Currently, a major issue (perhaps across emergency services across the nation) is the use of scanning to view emergency alerting messages on different devices.  Of particular note is the current problem facing VICSES and CFA members in regards to the large user base of the mobile application BART (http://www.bart.emerg.com.au/).

A number of users had been running scanners to receive EAS paging messages on their computers or brigade PC’s to supplement the pagers commonly used for alerting.  The organisation behind BART took that a step further and integrated a paging feed (I’m assuming captured via a radio scanner) into their mobile application.

My understanding of the law up until now was that radio frequency scanning is perfectly legal as long as the user does not act on information they were not initially authorised to receive.  If that is indeed the case, then by being SES or CFA members that are authorised to act on the information (given that we are all issued pagers which receive the same information) how can the service send an email to all members with a blanket statement claiming it is illegal?  Over the past 5+ years I understand that telecommunications legislation has undergone some major changes and my lack of legal knowledge has made it rather difficult to understand.  Perhaps it has changed, and I am unaware.

I did phone the ACMA information line to ask about this and was advised that there were no issues with scanning.  After all, the CFA even sells Uniden scanners to their members.  Uniden themselves sell pre-programmed scanners for ESO frequencies to the general public.

I suspected VICSES may consider the BART application to be illegal as they are running a commercial service with information captured using a scanner, however the actual statement from the service seems to imply that no feeds of any sort may be captured in any way which I believe to be incorrect.  Being of an IT technical background, I have been keen to set up my own feed at the brigade headquarters to display on an information panel in our operations room, however according to the service this is illegal too.

I guess the question in summary is:  “Is radio frequency scanning illegal, and if not what can and can’t be done?”

I also note that there are websites that rebroadcast live streaming emergency service radio communications.

Let me return to my response to my first correspondent (where I declined to answer the question).  I claim some expertise in the law of emergency response, but not in telecommunications law, but I am indeed a lawyer so I should be able to find something.  To repeat what I say on the page ‘about’ this blog ‘This is not a place for providing specific legal advice, so I won’t be able to answer questions that are based on actual events…’   That has to be particularly true here and what follow has to be read with a greater than normal degree of caution.

To clarify my understanding as this is what I’ll explore.  What I understand is happening is that the SES and CFA send out a message via pager.  I assume that works by sending some sort of data package that is transmitted from various base stations, the signal is received by the pager that can convert the data to text which is displayed on the screen.  Because these transmissions are out there a person with an appropriate receiver and decoder can also ‘catch’ the transmission and that is what BART (http://www.bart.emerg.com.au/) and others are doing.  They are then taking that data and providing enhanced mapping and other information that assists responders to get to the job.

With that understanding I’ll now begin an exploration of telecommunications law.

The advice issued by Victoria SES says:

The Executive wishes to reiterate the advice we have received, is that applications that illegally intercept the paging data feeds like BART and BART-like applications are not just technically illegal, they are actually illegal and VICSES cannot and does not endorse any activity that is in breach of the law.

Unfortunately it gives no reference to where the relevant law can be found.  The regulation of telecommunications is a Commonwealth, not a state matter, so we need to look at various items of Commonwealth legislation.

The Telecommunications Act 1997 (Cth) Part 13 provides for the Protection of Communications.  That part seems to govern various providers of telecommunication services and creates offences if they release information about their subscribers or the information that they communicate via their service.  In short your mobile phone service provider and its employees cannot disclose the contents of your text messages.

An ‘emergency call person’ (that is someone whose job it is to receive an emergency call) is not to release information that they receive in the course of their work as an emergency call person (Telecommunications Act 1997 (Cth) s 278).  Of course there is no offence if the disclosure is made ‘in the performance of the person’s duties’ so there is no offence for an ‘emergency call person’ to use the information they receive to dispatch the emergency services (s 279(5)).  Section 286 ‘Calls to emergency service number’ also allows the release of information that is given to an emergency call taker to the relevant emergency service.  We can infer that a person who receives a call for the CFA or the SES and then sends that information via the pager system to alert the brigade or unit commits no offence.

None of that prohibits interception of this data but it must impose some obligation upon the emergency services to act reasonably.  Consider an emergency call taker who is required to keep confidential the information received when a person makes an emergency call. The call taker can of course record that data and then use it to despatch the emergency services, but they couldn’t do that by going to the window and yelling out to the crew in the fire station across the road.  That would be disclosing the information to anyone else who is walking along the street (and see the discussion on the Privacy Act, below).  So a confidential system is used, either radio, telephone, or walking down with the call out information on a piece of paper.   We know that radio and telephone communications’ can be intercepted and there are limits to what a service can do to encrypt that data but they have to take some care not to disclose the information.

The Radiocommunications Act 1992 (Cth) provides that it is an offence to have or operate a radiocommunications device (which includes a receiver (s 7) unless there is an appropriate licence.  There are an infinite number of standards and licenses listed on the Federal Register of Legislation which allow us to have things like mobile phones, hands free phones, remote control devices etc.  I can’t determine whether or not the receivers that the various services that are providing enhanced response information are covered by those licences, but one would have to infer that if the emergency services can broadcast their message on a particular channel, a device that receives that message must be covered by a relevant licence.

It is an offence to use a transmitter that may interfere with emergency service telecommunications (s 196) but I don’t understand that what these services are doing is interfering with the ESO telecommunications.

The Telecommunications (Interception and Access) Act 1979 (Cth) s 7 says:

A person shall not:

(a) intercept;

(b) authorize, suffer or permit another person to intercept; or

(c) do any act or thing that will enable him or her or another person to intercept;

a communication passing over a telecommunications system.

Interception means ‘listening to or recording, by any means, such a communication in its passage over that telecommunications system without the knowledge of the person making the communication’ (s 6).   A telecommunications system is a telecommunications network that is wholly or in part in Australia ‘and includes equipment, a line or other facility that is connected to such a network and is within Australia’ (s 5).  A telecommunications network is ‘a system, or series of systems, for carrying communications by means of guided or unguided electromagnetic energy or both, but does not include a system, or series of systems, for carrying communications solely by means of radiocommunication’ (s 5; emphasis added).

Radiocommunication means:

(a) radio emission; or

(b) reception of radio emission;

for the purpose of communicating information between persons and persons, persons and things or things and things (Radiocommunications Act 1992 (Cth) s 6).

A ‘radio emission’ is ‘is any emission of electromagnetic energy of frequencies less than 420 terahertz without continuous artificial guide, whether or not any person intended the emission to occur’ (s 8).  I have no idea what that means.  The maximum penalty for an offence contrary to s 7 is 2 years imprisonment (s 105).

Finally there is the Privacy Act 1988 (Cth) and the Privacy and Data Protection Act 2014 (Vic).  Both these Acts give effect to the agreed Privacy Principles which provide, in short, that a public service agency can only use information that it receives for the purposes for which it was received and must take steps to ensure that the information is not disclosed to inappropriate persons.  In Victoria the Commissioner for Privacy and Data Protection ‘must develop the Victorian protective data security framework for monitoring and assuring the security of public sector data’ (Privacy and Data Protection Act 2014 (Vic) s 85).  Let us assume, without checking, that there is a framework and that it applies to both the CFA and the SES.

Discussion

Having set out some relevant law we can now try to apply it to the situation at hand even without proper technological understanding.  First my (second) correspondent says:

My understanding of the law up until now was that radio frequency scanning is perfectly legal as long as the user does not act on information they were not initially authorised to receive…I did phone the ACMA information line to ask about this and was advised that there were no issues with scanning.  After all, the CFA even sells Uniden scanners to their members.  Uniden themselves sell pre-programmed scanners for ESO frequencies to the general public.

The issue is that there is a Radiocommunications Act and a Telecommunications Act. Section 7 of the Telecommunications (Interception and Access) Act 1979 (Cth) makes it an offence to intercept a Telecommunication but there is no equivalent for radiocommunications.  Put simply it’s an offence to intercept Telecommunications but not Radiocommunications, but what’s the difference?

Since making the original post contributors have made comments (see the ‘Responses’ button, below).  I’m grateful for the comments by David Fitch, for helping my thinking here. (See also https://www.quora.com/Whats-the-difference-between-telecommunication-and-radio-communication).  David, in a comment says ‘I guess to me at least it comes down to whether a transmission is intended to be private or not’.  That’s not the legal test but it may still be helpful.  Anyone who has used a two way radio, whether it’s on a private radio network, UHF CB or the Government Radio Network knows that other people with a radio on the same frequency or in the talkgroup can hear the conversation.  When you pick up a phone, even a mobile phone, you expect that the only person who can hear the conversation is the person on the other phone.   The phone does not depend solely on radio communication as there has to be other features such as a SIM card, a telephone number and account etc and the phone is connected to the network.  If there’s no mobile tower nearby my ‘phone won’t work even to call the person next to me. A radio will transmit to the world from it’s own aerial and I can communicate with anyone in range without the need for those extra features.  That may be a useful way to imagine the difference.  David’s comment below, suggests that a pager is just another radio receiver and if that’s right that would mean the pager message is radiocommunication.  If on the other hand, it needs to be ‘connected to’ a network then it would appear it’s a telecommunication’s device.

As noted by my correspondent, you can easily buy a scanner and there are websites that stream emergency services communications (see for example http://nswscan.blogspot.com.au/p/live-streams.html).   On the assumption that action would have been taken if this was illegal I would infer this is not an offence under the Telecommunications (Interception and Access) Act 1979 (Cth) s 7 because this is intercepting ‘radiocommunication’ not ‘telecommunication’.

If a pager is a ‘radiocommunication’ then the Telecommunications (Interception and Access) Act 1979 (Cth) doesn’t apply in which case someone who ‘harvests’ the pager data is not committing any offence.  If the ESO facilitates that, however, the ESO may still be committing offences under the Telecommunications and Privacy laws unless they have taken the appropriate steps to bind the third party service provider to ensure that they do protect the data.

There are then a number of scenarios.

  1. If a pager is telecommunications and the third party is intercepting the CFA/SES communication that is not intended for them, then that would be an offence contrary to s 7 of the Telecommunications (Interception and Access) Act 1979 (Cth).    A pager message is an example of telecommunication if the pager message is delivered via ‘a system, or series of systems, for carrying communications by means of guided or unguided electromagnetic energy or both, but [is not] … a system, or series of systems, for carrying communications solely by means of’ ‘any emission of electromagnetic energy of frequencies less than 420 terahertz without continuous artificial guide’.
  2. If the pager message is delivered via radiocommunication that is ‘a system, or series of systems, for carrying communications … solely by means’ of ’emission of electromagnetic energy of frequencies less than 420 terahertz without continuous artificial guide’ then there is no offence in monitoring the transmission.
  3. If the SES/CFA facilitate the service by providing the feed – so if for example a local unit contracts with the service provider and allows them to access their feed there are a number of other issues.  First that may be an offence under s 7(1)(b) (‘authorising’) or (c) (‘enabling’) of the Telecommunications (Interception and Access) Act 1979 (Cth).   Second, sharing the confidential information that the caller has provided with the service provider, without ensuring that the service provider is also bound by the relevant privacy principles, could be an offence contrary to the Privacy Act 1988 (Cth) and the Privacy and Data Protection Act 2014 (Vic).  If the service is knowingly sharing the information with the service provider that might also be an offence under the Telecommunications Act 1997 (Cth) s 278.

It follows that the SES is correct, there are ‘legal issues such as accessing the data, and addressing information privacy requirements’ at least where the data is provided by the agency.  Equally if the third party provider is harvesting data from a telecommunication (but not radiocommunication) system then intercepting ‘the paging data feeds’ is illegal.

That does not mean that setting ‘up my own feed at the brigade headquarters to display on an information panel in our operations room … is illegal too’ because that is using the information for the purpose for which it was intended and is keeping the information within the agency.  It is not disclosing the information to some third party without ensuring that they too will honour the agencies obligations.  I can’t comment on that in detail but it does appear to be quite different.

Conclusion

As noted at the start this is my first foray into telecommunications law (and I thank my correspondents for opening a new area for me) so my conclusion has to be read with more caution than normal.  A particular problem is that I don’t know or understand the technical details of what the service is providing, how the pager system works and how the message is being obtained by the enhanced service provider.

With those limitations however, it is clear that indeed there could be many issues. The critical issue is that by getting the data from the pager/call out feed the third party provider is getting access to private information without the consent of the person who gave the information and either without the consent of the CFA/SES or without contractual guarantees to ensure that the service provider is committed to protecting the data as if they were the CFA/SES.   To return to the SES memo it says:

VICSES has had discussions with EMV who have undertaken to conduct some further research, including what other interstate jurisdictions are doing about BART and similar applications, seeking advice from ACMA as to what options are available to address legal issues such as accessing the data, and addressing information privacy requirements.

That seems eminently sensible. If ‘Units have gained some advantages through enhanced capability to manage member availability and in some cases supplement the primary alerting system’ then the commitment from VICSES to look at options will, hopefully and in due course, find a way to secure those advantages.  In the meantime the direction that ‘Units are not to seek extensions, renewals or variations to such contracts or to enter into any new contracts following this advice’ also seems entirely sensible.


Categories: Researchers

“Uncomfortable truth about emergency care”

7 March, 2016 - 09:28

That’s the heading of an article by Gerry Fitzgerald appearing in the online journal ‘MJA Insights’ (ie short stories from the Medical Journal of Australia).   This article will be of interest to paramedics who are concerned about hospital delays and being called to what they consider inappropriate calls.  Dr Fitzgerald says:

Professional emergency health care has been transformed over the past four decades with the upgrading and modernisation of both prehospital and hospital-based acute care and the development of new professional roles of paramedic, emergency physician and emergency nurse.

While the improvements in health outcomes are unquestioned, this transformation has also been associated with system-wide congestion which is known to have adverse clinical, organisational and social outcomes, and which is caused by the combined impact of increased demand, access block and increased clinical capability.

However, the public policy responses have tended to be predicated on blaming someone rather than an in-depth understanding of the causes of the problem and designing solutions based on that understanding.

We have tended to blame the patients by calling their attendance “inappropriate”. Or we blame the clinicians or the government for cost shifting, inefficiency or insufficient resourcing.

However, the evidence collated over the past 10 years in particular has shown an entirely different picture and the trends have been confirmed in the recent report into emergency department care by the Australian Institute of Health and Welfare.

Demand for emergency health care is growing by 2% per capita each year (3% for ambulance). Growth is among the more urgent triage categories, across all age groups and both genders and across the system as a whole.

Further, interviews with patients confirmed that the decision to seek acute medical care is generally a conscious and well considered decision based on weighing up the alternatives and often supported by advice from family, bystanders or health professionals.

So if the issue isn’t patient’s abusing the system, what is the issue and what’s to be done?  Dr Fitzgerald has a number of suggestions but rather than repeat them, you can read the full article here: https://www.mja.com.au/insight/2016/8/uncomfortable-truth-about-emergency-care

 


Categories: Researchers

Vicarious liability for the actions of fire wardens

5 March, 2016 - 13:36

A correspondent from Tasmania writes with a question about the functions and responsibility of wardens in an emergency control organisation.  My correspondent asks:

… in respect to the legal liability  of a warden whilst performing their role in accordance with the site emergency plan. Can the individual (chief warden, area warden or floor warden) be sued for actions they may take during an emergency?  I note that in Tasmania the crown solicitor has ruled that wardens in the public sector are protected if they are “acting in good faith”, I’m not sure that the private sector has a similar or can rely on the same ruling (a legal nexus?) Are you able to provide comment or advice?

The answer is ‘no; the individual (chief warden, area warden or floor warden) be sued for actions they may take during an emergency’ but not for reasons suggested by the question.  The answer here depends largely on the common law so will be relevant and equally applicable in all jurisdictions.

The Tasmanian Crown Solicitor does not determine what the law is.

First, the Tasmanian Crown Solicitor may have given advice in relation to wardens in the public sector but an advice is just that, an advice, it is not a ruling and does not determine the law.  It is the solicitor’s opinion as to what the law is and how it might apply (just as this blog sets out my opinion).  So the Crown Solicitor has not ‘ruled’ that there is protection.  The Crown Solicitor’s advice is not a ‘precedent’ that sets out legal principles to be applied in subsequent cases.  It follows that the private sector cannot rely on it as a ‘ruling’ as they could if a judge had determined the matter in court.

Good faith is not a common law defence to a claim in negligence

So what is the position?  The first is that ‘good faith’ is not a defence to a claim in negligence.  In negligence the plaintiff has to show that the defendant owed them a duty to take reasonable care, they failed to act ‘reasonably’ in the circumstances and the defendant’s failure was the cause of the plaintiff’s harm.  The fact that the defendant was genuinely trying to do the right thing is not a defence known to the common law.  In Vaughan v Webb (1902) SR(NSW) 293 a fire brigade superintendent pulled down a wall.  The parties agreed that his actions were negligent but were done in good faith.  Did the fact that he was acting in good faith mean there was no liability for the negligence?  The answer, according to all three judges (Stephen ACJ, Owen and Pring JJ) was ‘no’.  Pring J said (at p 307):

… in my opinion, the words “bona fide” when used to qualify a negligent act are quite meaningless.  A negligent act is one which a man exercising ordinary care and prudence would not commit.  The element of bad faith has manifestly no place in such a definition.  A man may act with the most perfect bona fides and yet be guilty of imprudence or carelessness.

It was because of that decision that all fire and most emergency service legislation now have provisions that say a fire fighter, or the agency, is not liable for acts performed ‘in good faith’.  If good faith was a defence at common law, those sections would not be required.

Vicarious liability

So what could the crown solicitor have meant?  I would infer that he or she was really talking about the concept of vicarious liability.  That rule says that an employer is liable for the negligence of an employee who is acting in the course of his or her employment.  In the course of employment means doing your job – even if you are doing it badly or negligently.   The neat summary is that an employer is liable even if the employee does ‘authorised acts in an unauthorised way’ (New South Wales v Lepore (2003) 212 CLR 511).  Vicarious liability can also extend to any act that is for the employer’s benefit, at the employer’s direction or endorsed by the employer (CCH Australian Torts Commentary, [¶3-340] Vicarious liability).

The justification for vicarious liability is not easy to explain – as the judges of the High Court of Australia noted in Hollis v Vabu (2001) 207 CLR 21 ‘A fully satisfactory rationale for the imposition of vicarious liability in the employment relationship has been slow to appear in the case law’ ([35], Gleeson CJ, Gaudron, Gummow, Kirby and Hayne JJ).   Some justifications are that the point of liability is to ensure that a person who is injured is compensated.  The ‘person’ that can best ensure that happens, either because they have the funds or the insurance policy, will be a person running a business not their employee.   If a person is running a business and employs someone the business owner reaps the rewards of the person’s labour, they pay the wages granted but the employee is acting in the employer’s interest not their own.  As the employer gets the benefit so too they should take the risk.  The employer is also responsible for selecting employees, training them, building the relevant culture that may or may not prioritise safety etc.  All things that a person who engages with the business has no control over.   So the employer is liable but he or she or it can do much to limit that liability by the way they run the business.

Let us then assume a person is employed and one of their duties is to act as the fire warden. There is a fire alarm and they fail to perform their duties as instructed or expected.  If anyone could show that it was that failure that caused their loss and damage (rather than, say the fire) it is the employer that would be liable.   Further if the employee is not up to the task, then it is the employer who will be liable as it is the employer’s obligation to ensure the workplace is safe and that there are appropriate emergency plans in place.  If the fire warden fails, it is the employer who has failed – see Work Health and Safety Act 2012 (Tas) s 19 and Work Health and Safety Regulations 2012 (Tas) r 43.  But vicarious liability won’t apply if there’s actual malice, ie bad faith.

Good faith v Bad faith (or bona fides v mala fides)

Assume that there is a person who works in a building who is deaf and so cannot hear an audio fire alarm. The fire warden is instructed that in the event of a fire alarm it is the warden’s responsibility to enter this person’s office and make sure they are aware of the alarm and are told of the need to evacuate.  If a fire alarm goes off and the warden forgets to do that, or in the melee of real smoke and flames just fails to do that, then the employer would be liable for the negligence of the fire warden.  If, on the other hand, the warden saw this as a chance to get rid of an unpleasant work colleague and deliberately didn’t warn the deaf employee in the hope that he or she would be killed in the fire, then that would be an act of bad faith and there would not be vicarious liability.

As an aside, it should be noted that if the injured person is also an employee none of this matters.  If an employee is injured they will be entitled to workers compensation whether their death or injury was due to neglect or malice. Workers compensation is a ‘no fault’ scheme so he or she will get compensation and questions of ‘vicarious liability’ won’t actually arise.

Misconceptions about insurance

This discussion is important for another reason.  People are often told words to the effect of ‘if you go outside the training, or do something wrong, you won’t be covered by our insurance’.  That is a poor explanation.  An employer (and here we can extend the discussion to agencies that use volunteers like the fire and emergency services) has insurance to cover their liability.  They are liable for the negligent or other wrongful act of their employees (or volunteers).  This liability is not something that they extend to their employees as a matter of respect or loyalty, it is a legal position that they cannot avoid. So an employer (or anyone) takes out insurance to indemnify them should the insured risk occur – eg an employer will (or should) have insurance so that if, in the course of running their business, they cause someone a loss or injury then the insurance company will pick up the bill.  The insurance company is not ‘insuring’ the employee, it’s insuring the employer but the employer is liable for the negligence of the employee.   If the employee does an ‘authorised act in an unauthorised way’ (so that they are negligent) the employer is liable.    The issue is not whether the employee is or is not ‘covered’ by the insurance, it is whether they are acting in the course of their employment.  If the risk that arises is one that the employer does not have insurance for, it is still the employer who is liable.

Another important point about insurance is the issue of ‘subrogation’.  Subrogation is a rule that says that an insurance company that indemnifies their insured is then given all the rights of the insured.  If, for example, my house is insured against the risk of fire and there is a negligently caused bushfire that destroys my home. I claim on my insurance policy and get paid out and provided I had adequate insurance, I’m happy.  My insurance company then has all my rights and can go and sue the person or agency that caused the fire and they sue in my name and they don’t need my permission to do so.    Although a court case may have many named plaintiffs, there may be really only one insurance company that is taking the action – see Class action over the 2013 Blue Mountains (NSW) fires starts –but who’s suing who? (August 24, 2015).

All else being equal, if an employee negligently caused injury the employer would be liable. If the employer then claimed on an insurance company and was indemnified the insurance company could then sue the employer to recover the damages paid.  But all is not equal, the right of subrogation has been removed so an insurer cannot sue a negligent employee to recover any damages paid (Insurance Contracts Act 1984 (Cth) s 66); in NSW see also the Employees Liability Act 1991 (NSW) s 3).

Conclusion

A fire warden who is trying to do his or her job and is acting in good faith is protected in that if they are negligent (and if it is there negligence that caused a person’s loss or damage, something that would be hard to prove if there really was a fire or explosion) then it is their employer that would be vicariously liable for that negligence.   The employer may well be liable if their emergency plan fails on the basis that the staff were not properly selected, trained or otherwise capable of performing their duties.

If the warden was acting in bad faith, that is they take the chance of the fire to maliciously do the wrong thing to advance their own interest then they would not be protected by vicarious liability.


Categories: Researchers

The role of volunteer associations in Victoria’s SES and CFA

2 March, 2016 - 15:10

The Victoria Emergency Service Association (VESA) is supposed to take the concerns or ideas of Victoria SES (VICSES) Volunteers to VICSES management and board. Although VESA can start an open dialogue with VICSES and put forward Volunteer concerns, they don’t actually have any powers to help create change or provide a positive outcome for Volunteers. From what I can see VICSES don’t have any obligation to listen to VESA. The only reference I can find of VESA is the Volunteer Accord which I have been told has now expired. To add to this further and I’m no expert but I believe this accord would be invalid since VICSES became a statutory authority in 2005.

My question is: Would it be possible/legal to push for a “Volunteer Association” within VICSES legislation that has the ability/power within the organisation to voice Volunteer concerns or ideas? To provide an independent system outside unit leadership teams and paid staff? An alternative to allow any issues or disputes between Volunteers to be kept in-house without the need to take matters externally?

I always compare VICSES to CFA. Both agencies are statutory authorities, both work under Emergency Management Victoria (EMV), both have a board of directors that are required to report the Minister for Police and Emergency Services. However once key difference aside from the roles each agency is responsible for, the CFA have their Volunteer Association established under the Country Fire Authority Act.

I’m unfortunately not versed enough in any of this legal jargon to confirm to myself whether a: I am talking total nonsense or not and b: If the powers enacted to the CFA Volunteer Association provides them with the powers I believe they should have. So I was hoping you may be able to shed some light on this for me? I suppose to summarise is there a legitimate and constructive way to tip the scales so that volunteers have a voice for the valuable work they perform to keep their communities safe.

And a quick note, I wish to confirm to you that my views and opinions don’t represent that of the Victoria Emergency Service Association.

I have been provided with a copy of the Victoria State Emergency Service Volunteer Accord that was signed on 6 May 2004.  That accord ‘recognises that Volunteers operate under the Victoria State Emergency Service Act 1987…’  The 1987 Act has been repealed and replaced by the Victoria State Emergency Service Act 2005 (Vic).  The accord further says (emphasis added) ‘To ensure that there is ongoing commitment to the principles of this Accord, the Service will facilitate a review four years after its commencement or upon request by any of the parties to the Accord.’  I do not know whether that 4 year review occurred.

The Accord does not, however, have an ‘end date’ that is it is not expressed to be only for a fixed period.  There is no reason to think that it does not reflect the ongoing relationship between the VICSES and the VESA.   Even though the 1987 Act has been repealed anything ‘created’ under that Act continue to apply under the 2005 Act and any reference to the 1987 Act must now be read as a reference to the 2005 Act (see Victoria State Emergency Service Act 2005 (Vic) s 56).

I will however, for simplicity sake, assume for the sake of the argument, that the 2004 Accord is not relevant because, whether it is or isn’t, it doesn’t answer my correspondent’s questions.

My correspondent says that the Volunteer Fire Brigades Victoria (VFBV), ‘the voice of CFA Volunteers’ (http://www.cfa.vic.gov.au/about/volunteer-association/) is ‘established under the Country Fire Authority Act’.    Under the Country Fire Authority Act 1958 (Vic) the CFA ‘is first and foremost a volunteer-based organisation’ (s 6F).  The Government, the CFA and the VFBV have agreed to a volunteer charter (s 6G) that:

(a) is a statement of the commitment and principles that apply to the relationship between the Government of Victoria, the Authority and volunteer officers and members; and

(b) requires that the Authority recognise, value, respect and promote the contribution of volunteer officers and members to the well-being and safety of the community; and

(c) requires that the Government of Victoria and the Authority commit to consulting with Volunteer Fire Brigades Victoria Incorporated on behalf of volunteer officers and members on any matter that might reasonably be expected to affect them.

The CFA, when is required to ‘have regard to the commitment and principles set out in the Volunteer Charter’ (s 6H).  Further, the CFA ‘has a responsibility to develop policy and organisational arrangements that encourage, maintain and strengthen the capacity of volunteer officers and members to provide the Authority’s services’ (s 6H).  The VFBV is given a specific role.  It is ‘to enable members of brigades (other than industry brigades) to consider and bring to the notice of the Authority all matters affecting their welfare and efficiency (other than questions of discipline and promotion)’ (s 100).

Section 100 has been in the CFA Act since it was enacted in 1958. (In 1958 the section referred to ‘(a) an association of members of urban brigades to be known as the “Urban Fire Brigades Association”‘ and ‘(b) an association of members of rural brigades to be known as the “Rural Fire Brigades Association”‘.  Today volunteers are represented by the VFBV regardless of whether they are in an urban or rural brigade.) Sections 6F-6I were inserted into the Act by the Country Fire Authority Amendment (Volunteer Charter) Act 2011 (Vic).  There are no similar provisions in the Victoria State Emergency Service Act 2005 (Vic).

Let me now turn to the questions asked:

Would it be possible/legal to push for a “Volunteer Association” within VICSES legislation that has the ability/power within the organisation to voice Volunteer concerns or ideas? To provide an independent system outside unit leadership teams and paid staff? An alternative to allow any issues or disputes between Volunteers to be kept in-house without the need to take matters externally?

The answer is ‘of course’.  The law is whatever we want it to be.  It’s one of the challenges trying to explain legal research in the context of a University.  My colleagues in the physical sciences try to understand the way the world works.  If they discover something that can be described as a ‘law’ of physics (such as that E=MC2) then E does in fact equal MC2 whether we like it or not.  If the formula E=MC2 really is correct, then it is correct.   Discover a law of human making however, and if we don’t like it we can change it.

The Country Fire Authority Act 1958 (Vic) provides for a volunteer charter and a statutory role for the VFBV, but the Victoria State Emergency Service Act 2005 (Vic) does not.  Is it possible to change the SES Act?  Of course it’s possible.  The parliament of Victoria could easily put sections, akin to ss 6F-6I and 100 in the SES Act if it wanted to.  The issue becomes convincing the parliamentarians that it’s a good idea and they should do it.  That is not so easy.  To get the parliament to change the law I would imagine the members and the VESA would have to lobby the Minister and the Premier, and if they couldn’t be moved the backbenchers and perhaps the opposition. No doubt the Minister and Premier would ask VICSES whether they thought enacting something like s 100 of the CFA Act was a good idea – would it help their work or not?  What problem would it fix?    So is it possible for that to happen?  Of course.  Will it happen? That depends on the political will, the perceived problem and whether that’s a useful solution.

Do ‘the powers enacted to the CFA Volunteer Association provide them with the powers [my correspondent believes]… they should have?

That’s hard to say. Of course it requires one to infer what powers my correspondent thinks the VFBV should have, but the reality is that s 100 doesn’t give very specific powers.  It creates a role for the VFBV but whether they are successful in that role will depend on much more than just the legislation.  It allows the VFBV ‘to consider and bring to the notice of the Authority all matters affecting [the]… welfare and efficiency …’ of members of the Brigades.  It doesn’t allow the VFBV to insist that the CFA respond to those concerns in any particular way.  The Act does not give the VFBV particular authority to resolve or mediate ‘issues or disputes between Volunteers … without the need to take matters externally’ (by which I infer my correspondent means to the regional and other staff of the CFA).  If they do that sort or work they do so by virtue of the willingness of the VFBV to take on that role and the terms of the Association’s rules.

Is there a legitimate and constructive way to tip the scales so that volunteers have a voice for the valuable work they perform to keep their communities safe.

That I can’t answer as I don’t know whether VICSES volunteers do, or do not ‘have a voice for the valuable work they perform’ nor do I want to enter into that debate. Whether the scales need to be ‘tipped’ is a question I cannot answer and will not attempt to do so.   If however a volunteer, or a group of volunteers, think that they do not have the voice that they want to have then of course there are ways to change the world. Whether that is lobbying the VESA leadership to take a different approach, running for office with the VESA, lobbying government to change the law or running for Parliament, there are ways to ‘tip the scales’.


Categories: Researchers

Getting children out of locked cars

23 February, 2016 - 09:36

I was wondering if you could give your opinion on who can and who cannot break into a car in a case where someone left a child locked in their vehicle? Police, Fire & Rescue, Ambos, First Aid Volunteers, Security and bystanders are all in different situations where they can come across this and I wonder if most would be too scared to act due to the fear of prosecution.

To the list of potential rescuers we should add road service patrol officers (eg NRMA, RACQ, RACV etc).

Fire brigade legislation does give the various Australian fire brigades extensive powers to take action in an emergency that would include forcing entry to a car to release a trapped child (Emergencies Act 2004 (ACT) s 34 General Powers of Chief Officers so these powers are vested in the Chief Officer of ACT Ambulance, ACT SES, ACT Rural Fire Service and ACT Fire and Rescue; Fire and Emergency Act (NT) s 20; Fire and Emergency Services Act 1990 (Qld) s 53; Fire Service Act 1979 (Tas) s 29; Fire Brigades Act 1942 (WA) s 34).   In some jurisdictions these powers are limited so that they only apply in response to a fire or hazardous materials incident (Fire Brigades Act 1989 (NSW) ss 11-22D; Fire and Emergency Services Act 2005 (SA) s 42 with respect to South Australian Metropolitan Fire Service and s 96 with respect to the Country Fire Service; Metropolitan Fire Brigades Act 1958 (Vic) s 32B; Country Fire Authority Act 1958 (Vic) s 30).

State Emergency services may also be given specific powers to enter property to rescue people (Emergencies Act 2004 (ACT) s 34; State Emergency Service Act 1989 (NSW) s 22A; Emergency Management Act 2013 (NT) ss 46 and 47; Fire and Emergency Services Act 1990 (Qld) s 149 with respect to ‘authorised rescue officers’; Fire and Emergency Services Act 2005 (SA) s 118; Fire and Emergency Services Act 1998 (WA) s 18B).

Ambulance officers in some states also enjoy explicit powers that would extend to breaking open a car to release a trapped child (Emergencies Act 2004 (ACT) s 34; Ambulance Service Act 1991 (Qld) s 38 with respect to ‘authorised officers’; Health Care Act 2008 (SA) s 61; Ambulance Service Act 1982 (Tas) s 14A).

It is beyond the scope of this blog to go through all the Australian police legislation so I’ll limit myself now to NSW.  A NSW Police officer may ‘enter premises’ (which includes a vehicle) if ‘a person has suffered significant physical injury or there is imminent danger of significant physical injury to a person and it is necessary to enter the premises immediately to prevent further significant physical injury or significant physical injury to a person’ (Law Enforcement Powers and Responsibilities Act 2002 (NSW) s 9).  No doubt similar provisions exist in most if not all other jurisdictions.

Member of the emergency services that do not have relevant, specific powers, first aid volunteers, security staff, bystanders, and road side patrol officers are all in the same positon, they have no specific legal authority to force open a car – but none is needed.  And none is needed because there is a general authority established by the common (or judge made) law.    (The discussion that follows is taken from my own book Emergency Law (4th ed, Federation Press, 2013, Chapter 3)).

An intentional interference with the goods of another (which would include a car) would be a trespass and would entitle them to compensation for any damage caused. To put that in context, smashing the window of a car in order to get out a heat-stressed child would, without legal excuse, constitute a trespass and would warrant the pay­ment of compensation. It would, however, be outrageous to consider that the person should be liable to pay the cost of the damage to the window. The legal defence lies in the common law notion of “necessity”.

For the defence of necessity to apply it must be shown that there was a real and imminent danger and that the conduct of the defendant was such that “any reasonable man would, in the circumstances of the case, have concluded that there was no alternative to the act of trespass if the property [or life] endangered was to be preserved” (Cresswell v Sirl [1948] 1 KB 241, 247..  The doctrine can be traced back to 1538 when a court said:

Yet we will well agree that in some cases a man may justify the commission of a tort, that is in cases where it sounds for the public good … a man may justify pulling down a house on fire for the safety of the neighbouring houses … (Maleverer v Spinke (1538) 73 ER 79, 81).

In 2008 the High Court of Australia 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 (Kuru v State of New South Wales (2008) 236 CLR 1, [2008] HCA 26, [40] (Gleeson CJ, Gummow, Kirby And Hayne JJ).

The doctrine of necessity can apply where the defendant reasonably believes that some action is necessary even if it turns out later that it was not. In Cope v Sharpe (No 2) [1912] 1 KB 496 the defendant was not liable for setting fire breaks that were not, as it turned out, necessary to control a fire that was extinguished by others before it got to the breaks.

When the damage to property is necessary to save life, greater damage may be done that would be justified “to prevent mere damage to property”.

The safety of human lives belongs to a different scale of values from the safety of property. The two are beyond comparison and the necessity for saving life has at all times been considered a proper ground for inflicting such damage as may be necessary upon another’s property (Southport Corporation v Esso Petroleum Co Ltd [1956] AC 218, 228).

In New Zealand it was said:

A person may enter the land or building of another in circumstances which would otherwise amount to a trespass if he believes in good faith and upon grounds which are objectively reasonable that it is necessary to do so in order (1) to preserve human life, or (2) to prevent serious physical harm arising to the person of another, or (3) to render assistance to another after that other has suffered serious physical harm (Dehn v Attorney General [1988] 2 NZLR 564, 580 (Tipping J)).

Necessity will justify almost any property damage in order to save life. The cutting up of the car, the entry onto property and the destruction of property can all be justified where that conduct is necessary to save another’s life. The doctrine is not limited to professional rescuers. A person visiting their neighbour who sees that they are lying injured on the floor is as justified in breaking the door in order to render assistance as is the local ambulance or fire service.

The law still requires that any action taken under the doctrine must be reasonable, so that if the rescuer acts in a way that is not reasonable in the circumstances, they may be liable in negligence (Beckingham v Port Jackson and Manly Steamship Co (1957) SR(NSW) 403).  This principle is subject to the rule that in deciding what was or was not reasonable, the courts, given the agony of the moment, are willing to excuse conduct that would be considered negligent in less urgent circumstances, particularly when life (rather than mere property) is involved.  The “agony of the moment” rule says that courts must take into account that where a person has found themselves in a situation not of their making and where immediate action is required, then the person’s conduct is not to be judged as negligent because, in retrospect, it appears that another course of action would have been better.

[A] man is not to be charged with negligence if he, not being the creator of the crisis or emergency which has arisen, finds himself faced with a situation which requires immediate action of some sort and if, in the so called “agony of the moment”, he makes an error of judgment and takes a step which wiser counsels and more careful thought would have suggested was unwise (Leishman v Thomas (1958) 75 WN(NSW) 173, 175).

A rescuer, “acting under the pressure of emergency, is to be judged leniently as to the reasonableness of his conduct” (Wallis v Town of Albany (1989) Aust Torts Reports ¶80-283, [69,011] (Pidgeon J); Wagner v International Railway Co 133 NE 437 (1921), 437-38 (Cardozo J)).

The Children and Young Persons (Care and Protection) Act 1998 (NSW) s 231 says:

A person who leaves any child or young person in the person’s care in a motor vehicle without proper supervision for such period or in such circumstances that:

(a) the child or young person becomes or is likely to become emotionally distressed, or

(b) the child’s or young person’s health becomes or is likely to become permanently or temporarily impaired,

is guilty of an offence.

The maximum penalty is a fine of 200 penalty units ($2200).

(For a comparison of the laws in each jurisdiction see https://www.slatergordon.com.au/blog/unattended-children-getting-facts-straight)

The test in the Children and Young Persons (Care and Protection) Act is probably a good guide.  Any person who sees a child locked in a car can take action if they reasonably believe that the child is ‘or is likely to become emotionally distressed’ or the child’s health is ‘or is likely to become permanently or temporarily impaired’.  Provided there are reasons to hold that belief that will be sufficient even if it turns out that the child was not distressed, there health was not impaired and mum or dad were about to walk around the corner.  It may not be reasonable on cold, wet and foggy morning to smash the window of the car when the parents are standing in sight of the car perhaps buying fruit at the roadside fruit market.  It may well be reasonable in an open air car park where the owner of the car is not obviously nearby and you’ve first checked that the doors are in fact locked.

Other defences

In terms of personal liability members of the emergency services that do not have any specific power, eg paramedics with the Ambulance Service of NSW will not be personally liable for their decision.  If they have responded, and given the ambulance service’s general duty to render first aid to, and transport sick and injured persons (Health Services Act 1987 (NSW) ss 67B and 3 (definition of ambulance services)) will be able to argue that their actions were in the course of their employment as paramedics and a good faith performance of their duties for ‘the protection of persons from injury or death, whether or not those persons are or were sick or injured’. (Health Services Act 1997 (NSW) s 67I).

A person who has no particular authority other than concern for the child’s welfare would be able to point to the Good Samaritan laws.  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.’   ‘A good samaritan does not incur any personal civil liability in respect of any act or omission… in an emergency when assisting a person who is apparently injured or at risk of being injured. (Civil Liability Act 2002 (NSW) ss 56 and 57).  A child who is in a car ‘in such circumstances that … the child’s or young person’s health becomes or is likely to become permanently or temporarily impaired’ would also constitute a relevant emergency for the good Samaritan provisions.

Defences do not guarantee that someone won’t ‘try it on’

The law says that this action is Ok but the law is not self-executing.  What I mean by that is that just because the law justifies the action it does not mean everyone will see that it was ‘reasonable’ in the circumstances.  The owner of the car may well want to demand compensation.  If push comes to shove they may even take legal action.  The law means the rescuer can go before the relevant tribunal (probably a small claims court) and say ‘I’m not liable’ but it does not guarantee that the owner won’t ‘try it on’.   A person is less likely to try it on when the rescuer is the police, fire service, ambulance service or road service.    (Having said that, I recall when I was a legal officer for NSW Health and a person asked us to pay for the door that the ambulance service had forced when they came to save the person’s life.  We gave that a very short answer and heard nothing more).

A person concerned about that may prefer to ring 000 for emergency assistance, take a photo before affecting the rescue, or at least ask other bystanders to confirm that they think it’s a reasonable response and hopefully get their names and address to act as a witness to confirm that the circumstances did warrant that action.  Those steps are not necessary, you don’t need to do them and presumably would not take the time in clearly urgent circumstances.  If it is 40 degrees in the shade and the child is obviously distressed or worse, unresponsive, just smash the window.  The response of the police and the press will pretty much ensure that the car owner isn’t going to try on a claim for compensation.

A legal anomaly

Under the Australian Road Rules the driver of a car must ensure that the car is secure (Road Rules 2014 (NSW) r 213).   Rule 213(4) says:

If the driver will be over 3 metres from the closest part of the vehicle, and …

(b) there is only a  child  or children under 16 years old left in the vehicle,

the driver must remove the ignition key before leaving the vehicle.

Maximum penalty: 20 penalty units ($220).

So a driver might decide they’ve got to run into the shop to buy the milk but they’ll leave the child or children in the car, but because of rule 213(4) it would be an offence to leave the key in the car so it would be impossible to leave the engine and air conditioning running.  The anomaly is that rule 213(4) certainly anticipates that a child will be left in the car.  It could be amended to say that if the driver will be over 3 metres from the closest part of the vehicle, they should ensure that there is no child under the age of 16 in the car; but that’s not what it says.


Categories: Researchers

‘Views expressed are my own’ – a useful disclaimer on social media?

15 February, 2016 - 18:56

A Victorian volunteers asks about ‘… EM staff who create a social media account and use the name of their organisation in the tag but state that the views expressed are their personal views’.   My correspondent has provided a screen shot of a page by a senior fire fighter that identifies his position and agency but says ‘Views expressed are my own’ (I won’t reproduce that shot as I don’t want to speak about that member, but about the issue in general).

My correspondent continues:

In the event that a member of the community is following this information I would have no doubt that they would assume that the information is from a trusted source. I suppose the legal question in this case is can a person that looks, smells and feels like an agency representative include a statement that their views are their own. I would have thought that they will be seen as a representative and as such the ‘views are my own’ statement should be deleted.

I have to infer what sort of legal issues we are talking about here and what the person is talking about on their social media page.  I will assume that the page in question is either open to the public or at least widely available to members of the agency.  It’s not a closed group where the only members are family and personal friends known to the author.

I would suggest that if a senior officer is going to put out, on a widely available social media page, any community warning and advice information they are not going to really be putting out their own views.  I can’t imagine that if the agency puts out a ‘watch and act’ warning for Kickatinalong, a senior member is going to say ‘I reckon that’s crazy, the fire’s never going to get there’.   Equally if the agency is saying ‘clear your gutters as good storm preparation’ the officer is not going to contradict that and say ‘I don’t think you need to, it really doesn’t make a difference’.  So in that context its hard to see how they are going to express their own views rather than the official line.  And one can imagine that if their views are contrary to the official line, they are not going to be in the job for long.  A ‘member of the community … following this information’ is going to be at least confused.

It’s also hard to imagine they are going to give their own views on various issues.  I don’t suppose that if there has been a public complaint about conduct within the agency and the Commissioner has said ‘we’ve investigated and are satisfied that everything was in order’ that a senior officer is going to say ‘Well that’s rubbish, the investigation was a white wash and the person the subject of the complaint should have been kicked out’.   And one can imagine that if their views are contrary to the official line, they are not going to be in the job for long…

Perhaps they’ll express their own views on politics – supporting one candidate in favour of another; or social issues – claiming that women are being unfairly appointed because they’re not really up to being fire fighters; news events – I saw the accident and it really was the driver of the truck at fault, or …. I’m not sure what else.  Although a person is allowed to hold their own views, by expressing them in public and linking themselves to their organisation they are clearly holding themselves out as part of that organisation and may well be in breach of the agencies code of conduct.  For example, the NSW SES Code of Conduct and Ethics says (at [6.2], emphasis added):

Where comment might be perceived as being an official view of the NSW SES, the Member must seek authorisation for such comment via the Manager Corporate Communications on behalf of the SES.

Given the person express link to the agency, their comment may well be perceived as the ‘official’ view even if they say ‘views expressed are my own’ as people might well (like me) not really believe the person is going to express their own views.

The NSW Police ‘Official Use of Social Media Policy’ says a

…“personal’ social media site is a site owned by a NSW Police Force employee and used for personal or private interaction, with content that does not represent the NSW Police Force, a business, charity or other organisation.

If a person is operating a public social media site and identifies themselves by name and agency it would, in my view, be hard to argue that is for ‘personal or private interaction’.

(I should I note that my correspondent is NOT from either NSW SES or NSW Police nor is the person who maintains the page he sent me, I’m just picking these as agency examples.)

It’s a bit like a person sitting with a couple of close friends and saying ‘the Commissioner is a dick’ compared to standing on a soap box in the Sydney Domain, in uniform, and saying ‘the Commissioner is a dick, but that’s just my opinion’.   One’s probably OK, the other is not.

Compare this situation to my own.  I operate a private Facebook page and the only requests I accept are from people I’ve actually met.  I also have this WordPress site, Facebook page (Australian Emergency Law) and LinkedIN.  Whilst I like to think that all my readers are my friends, there are many followers there who I don’t know.  I approach the ‘public’ pages differently to the private one.   On these public fora there is a brief bio that does point out I work for the Australian National University.   Even so I wouldn’t expect anyone to think that I am expressing the views of the the ANU because 1) I’m not senior management (it might be different if I was the VC); 2) no-one would expect the ANU to have a view on emergency management law and 3) there is an understanding that one of the things academics are paid to do is express their own views, even if they are contrary to the views of their institution and the government of the day.  That is the fundamental role of academics enshrined by the concept of ‘academic freedom’.  I’m not sure that would be true for an agency officer who identified their social media site as the site of “…..Officer, …. agency’.

Even if a site is for personal or private interaction it does not mean posts there cannot come back to bite you.  Whilst often reluctant to point to US precedents, I do refer readers to the US Fire Law Blog maintained by fire fighter and lawyer Curt Varone.  His blog is full of posts where US fire and EMT professionals have lost their jobs over social media posts and these include cases where they really are just posting on their own blog sites – see http://www.firelawblog.com/category/social-media/

Conclusion

I can’t point to any specific law here; just the principles and how as a lawyer one would approach the issue.  If a member has identified themselves by agency and rank and particularly if they are a senior rank, they can’t really say ‘their views are their own’ as no-one could seriously believe that the views they are expressing are their own.  And if the views being expressed run counter to the official line, or the agencies code of conduct, or the agencies expectation of its staff, they can expect serious consequences for their employment (see for example Linfox Australia Pty Ltd v Stutsel [2012] FWAFB 7097).

Even if what they are putting up is news stories about how they attended the local unit and had a lovely social gathering to hand out awards, they are still reporting on their official duties.

I can’t see how a person who identifies themselves by rank and agency can expect a statement that ‘the views expressed here are my own’ to have any meaning.


Categories: Researchers

Employer’s policy and the law – entering an intersection against the red light

9 February, 2016 - 10:28

This question comes from NSW:

I’m the driver of an emergency vehicle in NSW.  My employer has a policy that says when we are traveling under lights and sirens we must come to a complete stop at red traffic signals before proceeding through.

On a number of occasions, whilst following this policy, I have seen that the traffic travelling with the green light have seen and heard me and stopped to allow for my passage. However once they see me come to a complete stop they assume that it is ok for them to continue through the intersection. I then start to move into the intersection causing confusion for the other motorist who again brakes. My question is could I or my employer be held accountable for potentially causing an accident especially if someone is seriously injured or a death occurred  if another motorist was to collide with the vehicle who has had to suddenly brake for a second time due to my actions?

I have proposed this question with my employer and their answer is as long as I have followed their policy I’m not at fault.

The problem with any answer that says ‘as long as I have followed their policy I’m not at fault’ is that it assumes the police, a plaintiff and/or a court are ‘bound’ by the employer’s policy.  And they are not.  They are entitled to argue, or find, that the policy itself was wrong and that either generally, or in the specific circumstances, a ‘reasonable driver’ would have done something else.  An extreme example may make the point.   Assume that the stated policy is that when responding to an emergency every driver shall travel at not less than 100km/h.   An employee could comply with that policy but it wouldn’t stop them being charged when they ran someone over on a busy street.   The issue is the law, not the employer’s directives.  Now there is some relevant law there, an employee is required to obey the ‘reasonable’ directions of his or her employer and when deciding what a reasonable person in the given circumstances would do, the employer’s policy is clearly relevant.   But everyone one has to have the discretion to say ‘if I follow this policy, I’m going to kill someone, so I’m not going to do that’.   That doesn’t mean a policy that says ‘always stop at the red light’ is a poor policy, only that the assertion ‘as long as I have followed their policy I’m not at fault’ is wrong.

Could the driver or the employer ‘be held accountable for potentially causing an accident especially if someone is seriously injured or a death occurred  if another motorist was to collide with the vehicle who has had to suddenly brake for a second time due to my actions?’  It depends what you mean by ‘accountable’.

Will they be asked to ‘account’ for their actions and policy?  Clearly ‘yes’. The driver will have to explain what they did and if they relied upon a policy directive, the employer may be asked about – required to account for – the policy; why was it phrased that way? How was it intended to be applied? What training was provided? Etc.  That is being accountable or held to account.

Will the driver be liable for civil damages?  No.  Every registered vehicle, or vehicle that is not required to be registered is covered by a compulsory third party (CTP) insurance policy (Motor Vehicles (Third Party Insurance) Act 1942 (NSW)).  The CTP policy is a policy of indemnity, that is it covers 100% of the liability and the costs.  The driver has to pay nothing; the employer has to pay the annual premium.

CTP insurance only covers liability for injury or death caused to a person other than the driver at fault.  As for property damage there is likely to be, and if it’s a government operated emergency service there will be, a relevant insurance policy to pay out for property damage.  Given the driver was acting as an employee – doing their job even if not in compliance with a policy –  the employer and not the employee will be liable (Employees Liability Act 1991 (NSW) s 3; Insurance Contracts Act 1984 (Cth) s 66).

Will the driver be liable for any criminal offence?  Yes, criminal liability is personal and cannot be transferred.  If the driver commits a traffic offence that liability belongs to the driver.  An employer can also be criminally liable for aiding or encouraging a driver to commit an offence or for offences outside the traffic laws, such as offences under the Work Health and Safety Act 2011 (NSW) if their policy and training does not take reasonable steps to ensure a safe workplace.

The first part of the question was:

Could I or my employer be held accountable for potentially causing an accident especially if someone is seriously injured or a death occurred …

The answer is ‘absolutely’.   But that doesn’t address the policy, so now we can get to the actual point of the question.

Readers of this blog will be familiar with the oft quoted Australian Road Rules.  Rules 78, 79, 165 and 306 of the Road Rules 2014 (NSW) say, respectively:

78 Keeping clear of police and emergency vehicles

(1) A driver must not move into the path of an approaching police or emergency vehicle that is displaying a flashing blue or red light (whether or not it is also displaying other lights) or sounding an alarm…

(3) This rule applies to the driver despite any other rule of these Rules.

79 Giving way to police and emergency vehicles

(1) A driver must give way to a police or emergency vehicle that is displaying a flashing blue or red light (whether or not it is also displaying other lights) or sounding an alarm.

(2) This rule applies to the driver despite any other rule of these Rules that would otherwise require the driver of a police or emergency vehicle to give way to the driver.

For the purposes of rule 79, ‘give way’ is defined in the Dictionary that forms part of the Rules to mean:

(a) if the driver … is stopped-remain stationary until it is safe to proceed, or

(b) in any other case-slow down and, if necessary, stop to avoid a collision…

165 Stopping in an emergency etc or to comply with another rule

It is a defence to the prosecution of a driver for an offence against a provision of this Part if:

(a) the driver stops at a particular place, or in a particular way, to avoid a collision, and the driver stops for no longer than is necessary to avoid the collision…

306 Exemption for drivers of emergency vehicles

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.

Let us take as given (ie without reference to the rules) that my correspondent is driving an emergency vehicle and that a driver is required, as a general rule, to stop at a red light and wait until the light turns green before proceeding and all drivers operate on that general assumption (ie if you have a green light you can go, if you have a red light you have to stop).

First, the general rule – if you have a green light you can go but if you have a red light you have to stop – does not apply to the driver of an emergency vehicle in the circumstances described in r 306.  Where r 306 applies the driver can proceed against the red light and should not get a traffic infringement notice (TIN) for that offence.  If he or she does get a TIN (eg due to an automated red light camera) they will have a defence to the allegation of criminal impropriety. (Despite popular belief or hope to the contrary, road traffic offences, including those dealt with by way of a TIN, are criminal offences).

But, the driver has to take reasonable care (r 306(a)(i)) and has to assume that other drivers, facing  green light, are likely to assume that they have clear passage.  That assumption cannot be justified as a matter of law, all drivers should know that not everyone obeys the traffic signals, and some people, like the drivers of emergency vehicles, have an exemption so all drivers should be on the lookout, even if they have a green light, for vehicles entering the intersection.  In Hine v O’Connor [1951] SASR 1, the Supreme Court of South Australia had to consider liability for an accident between a bus and a fire appliance where the fire appliance proceeded into an intersection contrary to a ‘stop sign’ (akin to a red light).  The court said (at 4-5 (Abbott J)):

He [the bus driver] was not, however, entitled to consider himself as having “an open road” across that intersection because a “Stop Sign” is not always obeyed by drivers of vehicles; and, as he admitted in cross-examination, he has himself had the experience of other drivers disobeying such signs … And, of course, O’Connor is presumed to know the law that fire-engines on their way to a fire, as well as other specified vehicles, are exempt from the duty of obeying such “Stop Signs.” Despite the existence of a “Stop Sign” at an intersection, it may become the duty of a reasonable driver in O’Connor’s situation to “give way” to another vehicle whose driver has disobeyed the “Stop Sign.

That obligation to ‘give way’ is reinforced by rules 78 and 79.  The driver approaching a green light must not move into the path of an emergency vehicle and must ‘slow down and, if necessary, stop to avoid a collision’ even if that means stopping at a green light and even if the general rule is that the driver facing the red light – in this case the driver of the emergency vehicle – would be expected to give way to the driver facing the green light.

But just because the driver of the emergency vehicle is not required to stop at a red light and wait for it to turn green, and just because the driver facing the green light is not to move into the path of the emergency vehicle and must give way to that vehicle, it does not mean that the driver of the emergency vehicle can just barrel into the intersection.  In another case from South Australia but this time finalised in the High Court of Australia (South Australian Ambulance Transport Inc v Wahlheim (1948) 77 CLR 215) it was said (at p 220, (Latham CJ)):

[T]he exemption of ambulances [or any emergency vehicle] from the application of the section [that would have required the driver of the ambulance to give way], while it prevents any prosecution of the driver of an ambulance for failing to comply with the section, does not entitle an ambulance to drive ahead regardless of other traffic … The driver of an ambulance must drive upon the assumption that other people will observe the rules of the road; that they will accordingly look out to their right … and that they will expect to be given the right of way by vehicles on their left. Thus the fact that … [the section requiring drivers to give way to their right] … does not apply to ambulances does not relieve the defendant of liability for negligence if in all the circumstances there was a failure to exercise due care.

So too, the exemption from the need to give way at a red light will not relieve the driver of an emergency vehicle ‘of liability for negligence if in all the circumstances there was a failure to exercise due care’.

In yet another South Australian case Patterson v McGinlay [1991] SASC 2727 the court was faced with the very fact situation that I’m asked to comment on.  In this case a police vehicle entered the intersection against a red light with flashing lights and siren operating.    There was a collision and Cox J concluded:

Both drivers were at fault… the plaintiff-appellant failed to have sufficient regard for his own safety. Emergency vehicles are not an uncommon feature on metropolitan roads. If the plaintiff chose to drive with his radio on and his window only slightly open, so that his ability to hear a siren was necessarily impaired, he was under the greater obligation, as it seems to me, to be alert to perceive at the earliest opportunity the familiar flashing light. In fact, he failed to hear the police car’s siren at all and, at an uncommonly wide intersection, he did not see the car itself until the very last moment. The police driver, for his part, was entering a carriageway of the Port Road against the red light. He should have appreciated, and probably did, that his warning signals could not guarantee him a clear passage. His failure to see the plaintiff’s car before impact was negligence of no small order.

The other judges (Chief Justice King and Justice Olsson) agreed and liability was divided 50:50 that is both drivers were equally at fault.

So what?  I’ve already said that the driver will not be liable because of CTP insurance and the doctrine of vicarious liability.  That is correct but the insurers can and do still run the cases as they are only liable if the driver is found to have been negligent.   All of the drivers in the above cases were found to have been negligent to some degree even though they were not personally liable.    Also there are offences of negligent driving (and worse) so if the driver of an emergency vehicle is negligent to the requisite degree then he or she may face a criminal prosecution, ranging from a TIN for ‘negligent driving’ to, in extreme cases, an allegation of manslaughter.  Even if the driver is not liable for civil damages, this discussion is still important.

What’s a driver to do?  This is classic risk assessment where you weigh up the chance of something happening (a collision); how bad might it be (minor to fatal) and what can you do about it?  If you travel through an intersection at 100km/h the chance of a collision is very high, it will be bad and there’s lots you could do to avoid it – slow down or stop!   So a driver of an emergency vehicle must ensure that other drivers have observed the emergency vehicle and are in fact giving way.  Does that require stopping at every red light – well that depends upon the circumstances.

The driver’s employer, a PCBU for the purposes of the Work Health and Safety Act 2011 (NSW)  has to ‘ensure, so far as is reasonably practicable, the health and safety’ of workers (the employed driver) and other affected by the PCBU’s undertaking (that is other road users with whom the emergency vehicle might collide).  To do that a PCBU should probably have in place a policy.  That policy could say:

  1. A driver must slow down and if necessary stop at every red light and only proceed when it is clear that all other vehicles have stopped in order to give way to the emergency vehicle.

Or it could say:

  1. A driver must stop at every red light and only proceed when it is clear that all other vehicles have stopped in order to give way to the emergency vehicle.

Neither is obviously unreasonable; but my correspondent says there is a risk with option 2 in that having come to a stop, other drivers who have ‘given way’ get confused so it’s not clear who is going to go.   What’s to be done about that risk?  First let us recall that none of this takes very long and the other driver has an obligation not to move into the path of the emergency vehicle (Road Rules 2014 (NSW) r 78) and must give way, that is ‘remain stationary until it is safe to proceed’ and in any event, ‘avoid a collision’ (r 79).

What if the driver of the emergency vehicle slows down, but doesn’t stop, and there is an accident?  Clearly the road was not clear and the driver was, arguably, not taking reasonable care.   What if the driver does stop, there is some hesitation and there is a collision?  If the collision is with other vehicles, but not the emergency vehicle, the driver of the emergency vehicle is not at fault – the other drivers all have an obligation to avoid each other and to give way to emergency vehicles.  If there is a collision with the emergency vehicle the fact that the driver stopped first is stronger evidence of them taking care (but not enough care if they still had a collision).

Conclusion

Let me return to the question:

My question is could I or my employer be held accountable for potentially causing an accident especially if someone is seriously injured or a death occurred  if another motorist was to collide with the vehicle who has had to suddenly brake for a second time due to my actions?

So the facts suggested are, car A stops at a green light to give way to my correspondent.  My correspondent has also stopped.  Both vehicles begin to move off but the driver of car A, seeing that my correspondent in the emergency vehicle is intending to proceed again comes to a stop and car B runs up the back of car A.   Could my correspondent or the emergency service be held ‘at fault’?  When put that way the answer is a clear ‘no’.    The decision to stop at the red light by my correspondent is both reasonable and required by law.  The action of car A is to give way. If the drive of car A begins to move off that driver is arguably failing to comply with rules 78 and 79. The driver of car B also has an obligation to give way to the emergency vehicle as well as an obligation not to run into any other car that may suddenly stop because of an engine failure, or a child or an animal on the road or for any one of a 100 reasons.  To think that car A is suddenly going to drive off, and to not pay attention to the driver of the emergency vehicle which is clearly in the intersection, would be entirely the fault of the driver of car B.    The reason my correspondent is not at fault is not because he or she complied with the policy, but because the accident is not their fault.  Other drivers have to drive to the conditions including the presence of the emergency service vehicle.

If my correspondent comes to a stop as does the driver of car A.  Both begin to drive off but car A collides with the emergency vehicle, then the driver of car A has failed to comply with the road rules (rules 78 and 79) and is clearly driving without due attention as they have seen the emergency vehicle, they know it’s there and they are required to wait and allow it to proceed.  Presumably if both vehicles have stopped and both begin to move off they can see each other and are going slowly enough that they can stop again.  In the event of a collision issues of fault may come down to who hit who where or who had the last chance to avoid the collision?

 

 

 

 

 

 


Categories: Researchers