Regular readers of this blog may think that sounds familiar to an earlier title- ‘Just Ridiculous’? When is a MICA Paramedic a MICA Paramedic? (March 28, 2013).  It is similar because the issue of restricting a paramedics scope of practice in order to save money has arisen again.  A correspondent has drawn my attention to a Member Update issued by the Australian Paramedics Association (NSW).  You can download the document here, or access it via the APA website.

The critical part of the update says:

Today in the Industrial Relations Commission (IRC), NSW Ambulance (NSWA) took a position that will place patients’ lives, Paramedic registration and Paramedic well-being at risk.

NSWA’s lawyer stated that Intensive Care Paramedics (ICPs) in P1 positions would have their specialist status removed from the Computer Aided Dispatch (CAD) system and equipment and medications removed from vehicles. They would not be responded as ICPs even if a patient required their intensive care skills. Why? So that NSWA will only have to pay them P1 rates instead of ICP rates.

The IRC Commissioner said it would be “absolutely appalling” if an ICP was prevented from using their life-saving skills merely because of their position title.

I’ve looked the Commission’s daily list and I can’t identify what the proceedings before the Commission were, but nothing turns on that.

I have, on many occasions, written on demands by employers or volunteer organisations that people should not use their skills in the best interests of a patient in order to save the employer money or out of some ill-founded fear of liability.   See for example

• ‘Just Ridiculous’? When is a MICA Paramedic a MICA Paramedic? (March 28, 2013);
• Nursing standards and assisting in an emergency (May 22, 2014);
• Doctor as volunteer Life Saver and scope of practice (February 6, 2015);
• Volunteering with advanced skills (January 18, 2017);
• Scope of practice – previous posts explained (January 21, 2017);
• I’m trained but am I allowed to use my skills? (May 25, 2018); and
• Don’t let the patient die (June 11, 2019).

I hope I have been consistent.  If we are talking about life or death, if you have the skills to save someone you use them.  No-one is going to thank you for sticking to the organisations rules but letting the patient die.  To quote again from the Sheriff’s Inquiry into the death of Alison Hume [2011] FAI 51:

[The Incident Controller] in particular, considered that the rescue operation was “a success”. In his view he had adhered to the policies and procedures set out by Strathclyde Fire and Rescue Service. He had obtempered to the letter the instruction contained within the Memoranda from Strathclyde Fire and Rescue Service of the 14 and 27 March 2008. There had been no casualties other than the one to whom the Service was called upon to rescue.

Unfortunately this was not a successful operation: a woman died who had … survivable though life threatening injuries…

You can ‘obtemper’ (‘obey, comply with’) the company’s ‘scope of practice’ but no-one is going to think that the outcome was a success if the patient dies when they could have been saved.

What I have also said (I hope consistently) is that a person who is a doctor, or an ICP or has any other skill set cannot be expected to use that set if they do not have the equipment to hand.  An off-duty paramedic cannot be expected to treat a patient as he or she would if they had a fully stocked ambulance with them.  A paramedic, now a registered health professional, is expected to provide care to their patients in a way that ‘demonstrates the knowledge, skill or judgment possessed, or care… [at] the standard reasonably expected of a practitioner of an equivalent level of training or experience’ (to paraphrase the Health Practitioner Regulation National Law (NSW) s 139B).  What’s required depends on all the circumstances.

If an ICP is on an ambulance and responds to a life-threatening emergency, if the ambulance is not equipped with ‘equipment and medications’ then he or she cannot be expected to use that equipment and medication.  But that won’t mean that an ICP won’t have extra skills and knowledge compared to his or her partner who is not an ICP.  And the ICP cannot simply turn that knowledge and skills off.  They know what they know, and the patient gets the benefit of that knowledge and skill set even if the paramedic does not have the equipment to hand that he or she would want.   But whatever the person is called, and whatever they are paid, they remain an ICP.    And the patient, and therefore the ambulance service get the benefit of an ICP even though they are not paying for it.  For example if the crew were supported by an intensive care ambulance, the ‘deskilled’ ICP could and should still access the ‘equipment and medications’ on the intensive care ambulance if that is in the patient’s best interests.

I do not think a paramedic could be held guilty of ‘Unsatisfactory professional conduct’ for not using equipment that he or she does not have and has not been issued.  However professional registration should strengthen the arm of paramedics and APA to argue that paramedics should not be restrained from providing the best patient care that they can.

Further, it would be difficult to hold the ambulance service liable both because of difficulty in proving that had the ICP paramedic had the kit it would have made a difference and because the Civil Liability Act 2002 (NSW) s 42 says ‘the general allocation of … resources … is not open to challenge’.   It is up to NSW Ambulance to determine how much it spends on equipment that is restricted to intensive care ambulances so the fact that not every ambulance has an ICP drug kit is a matter for Ambulance to determine when allocating it’s budget.  Those sorts of decisions are generally not reviewable in a court.

I do however agree with the Commissioner – ‘it would be “absolutely appalling” if an ICP was prevented from using their life-saving skills merely because of their position title’ and because Ambulance did not want to pay their own staff what they are worth. Much better to celebrate that there are so many ICPs that they can be deployed in P1 positions thereby improving community service.

It will be interesting to see if the matter before the Commission goes onto final orders to better understand what the application was about and what the Commission ultimately rules.

Today’s correspondent asks me to:

… make some sense of the following.

Section 100 of the Rural Fires Act ‘Offences’ says:

(1)  A person who, without lawful authority:

(a)  sets fire or causes fire to be set to the land or property of another person, the Crown or any public authority, or

(b)  being the owner or occupier of any land, permits a fire to escape from that land under such circumstances as to cause or be likely to cause injury or damage to the person, land or property of another person or the land or property of the Crown or a public authority,

is guilty of an offence.

Maximum penalty: 1,000 penalty units or imprisonment for 5 years, or both.

 The regulations state for section 100 (1 or 2)   $2200

There is a lot of difference between the two penalties one under the act would equate to $110000 whereas the other is a much lesser amount.

Is the Act the guidance in court action and the regulations for officers of department when levying fines?

The short answer is ‘yes; the Act [is] the guidance in court action and the regulations for officers of department when levying fines’ but there’s more to it than that.

Fundamental to the Australian (and many if not most legal systems) is the idea of the separation of powers between the legislature (the Parliaments), the executive (the Ministers and various government departments) and the judicial (the courts) arms of government.   In simple terms the legislature writes the law, in this case the Rural Fires Act 1997 (NSW).  The executive arm of government, that is the Governor, the Minister for Police and Emergency Services and the Rural Fire Service have to put that law into effect that is they have to do the things the Act tells them to do, enforce the penalty provisions (along with police), put in place the systems to grant permits or permissions, operate the Rural Fire Service etc.  Because the parliament can’t foresee everything that needs to be done it has delegated to the Governor the power to make regulations to deal with various issues that need to be dealt with under the Act (Rural Fires Act 1997 (NSW) s 135).  Regulations are called ‘delegated legislation’ as they are a law, but they are not made by Parliament but by the person or agency delegated by Parliament to make those laws.  Regulations can only cover the subject matter authorised by the Act, must be consistent with the Act and can be set aside by Parliament if the Parliament so chooses.  The delegated legislation that is relevant here is the Rural Fires Regulation 2013 (NSW).

The judicial arm of government, the courts, get involved when there is a dispute.  When someone thinks a government department has not complied with the law for example it has failed to do something that the law says it must do, that it has issued or refused to issue a permit on irrelevant or improper grounds, that it has caused loss or damage that is not authorised by the law or, relevantly, where the department alleges that some person has committed a criminal offence.

Deciding whether or not someone is guilty of a crime and the punishment they are to receive is a role reserved exclusively to the courts.  Re Tracey; Ex parte Ryan [1989] HCA 12 Deane J said:

“The power to adjudge guilt of, or determine punishment for, breach of the law, the power to determine questions of excess of legislative or executive power and the power to decide controversies about existing rights and liabilities all fall within the concept of judicial power… Nor can the Executive itself exercise judicial power and act as prosecutor and judge to punish breach of law by executive fiat or decree. The guilt of the citizen of a criminal offence and the liability of the citizen under the law, either to a fellow citizen or to the State, can be conclusively determined only by a Ch III [of the Australian Constitution] court acting as such, that is to say, acting judicially.

(Having said that Parliaments can by executive order provide that a person is to be deprived of their liberty which is why the Australian government can lock people up in indefinite immigration detention – ‘the power is not punitive in nature, and does not involve an invalid attempt to confer on the Executive a power to punish people who, being in Australia, are subject to, and entitled to the protection of, the law’ (Al-Kateb v Godwin [2004] HCA 37, [4] Gleeson CJ).  A state government could pass a law ordering that you be locked up without judicial review (Kable v Director of Public Prosecutions (NSW) [1996] HCA 24, [9] (Brennan CJ) & [29] (Gummow J)) but that is not the same as imposing a punishment for a crime).

Infringement notices (‘on the spot fines’) appear to be contrary to this rule because it looks like the executive (the police or some other authorised person) is determining guilt and imposing a punishment, but that is not the case.  Where an authorised officer issues an infringement notice, he or she is making an allegation of guilt.  The person who receives the notice may choose to pay the prescribed fine and that is the end of the matter or they may choose to challenge the allegation on the basis that they are ‘not guilty’.  In that case the matter will be heard in a magistrate’s court in its criminal jurisdiction with the burden on the prosecution to prove the case ‘beyond reasonable doubt’.  (For further discussion on infringement notices and why they are not a criminal conviction, see Traffic infringements and paramedic registration (October 10, 2018)).

Because infringement notices are administrative and not judicial, there is no discretion given to the enforcement officer.  He or she has a discretion to issue the notice, or not, but the penalty is fixed.  An officer cannot decide the value of the penalty, that is set out in law, and that is the long way around to my correspondent’s question.

The Rural Fires Act 1997 (NSW) s 131 provides that penalty notices can be issued by authorised officers where the Regulations say that an offence is a penalty notice offence.  The fine to be imposed is the amount ‘prescribed’.  (Wherever the word ‘prescribed’ appears in an Act it means one has to look to the regulations to see what has been ‘prescribed’.)

The Rural Fires Regulation 2013 (NSW) r 48 and Schedule 2 sets out what are the penalty notice offences.  A breach of s 100(1) is a penalty notice offence. The prescribed penalty is $2200.

What that means is that if an authorised officer believes that a person has committed an offence contrary to s 100(1) that officer can issue a penalty notice that will impose a fine of $2200.  The officer can decide to issue the notice or not, but if he or she decides to issue the notice the fine is set.  The authorised officer cannot set a higher or lower fine, the fine is $2200.

If the matter is determined in a court, then the penalty notice provisions have no application.  The matter may end up in court if the person who receives a penalty notice elects to have the matter dealt with in court because he or she wants to argue that they are not guilty of the offence or they believe that the circumstances warrant a lesser penalty.  Equally it could be before a court if the authorised officer elects not to issue an infringement notice and instead proceeds by court attendance notice.  He or she may do that if they think the offending, or the offender’s history, is so serious that the fine of $2200 is not sufficient or they think a court may consider sending the person to gaol.

A magistrate who hears the matter and who is satisfied that the accused is guilty of the offence charged can impose any penalty provided for in the Crimes (Sentencing Procedure) Act 1999 (NSW) to the maximum of ‘1,000 penalty units or imprisonment for 5 years, or both.’  A penalty unit is $110 (Crimes (Sentencing Procedure) Act 1999 (NSW) s 17) so the maximum fine is $110,000.  A judge or magistrate has discretion that an authorised officer does not.

The provisions in an Act that define a maximum penalty do provide guidance to a court by helping the court determine where in the scale of offences from most minor to most serious this offence fits.   Judges have other options too like good behaviour bonds, finding an offence proved but taking no action, community service etc.  The ‘maximum penalty’ is, as my correspondent says ‘guidance [for the judge or magistrate] in court action’.

The Rural Fires Regulation 2013 (NSW) r 48 and Schedule 2 provide that an authorised officer may issue a penalty notice and the value of that notice. They are only relevant to ‘officers of department when levying fines’ and set out what the fine is.  The authorising officer has no discretion as to the amount of the fine – issue a $2200 fine or don’t.

Today’s correspondent is a volunteer with South Australia’s Country Fire Service (SACFS).  My correspondent says;

…we have our own brigade constitution and a few weeks before our AGM we asked for guidance over an issue. We were told no matter what is written in your brigade constitution it can and will be overridden by the SACFS  constitution…If this is the cause then what is the point of having a set of brigade rules that are in our constitution if it’s going to be over ruled by the CFS constitution.

I have answered a similar question with respect to the NSW RFS – see Constitutions for NSW RFS brigades (May 21, 2014).

A South Australian Country Fire Service (SACFS) brigade is an ‘SACFS organisation’ (s 3). SACFS brigades are established by the Chief Officer (Fire and Emergency Services Act 2005 (SA) s 68(1)(a)) although they may be formed on the application of ‘a group of interested persons’ (Fire and Emergency Services Regulations 2005 (SA) r 6).   An application should, amongst other things, ‘propose a constitution for the brigade’ (r 6(3)(f)).   Further (s 68):

(2)        An SACFS organisation will have a constitution that accords with any requirements determined by the Chief Officer.

(3)         The constitution of an SACFS organisation may be amended, with the approval of the Chief Officer, in the manner set out in the constitution.

(4)         An SACFS organisation—

(a)         has the functions and powers prescribed by this Act or the regulations or set out in its constitution; and

(b)         has such other functions or powers as may be assigned to it by the Chief Officer.

(5)         An SACFS organisation must—

(a)         maintain such records as may be prescribed, specified by its constitution, or required by the Chief Officer;…

There does not appear to be any clear indication of what matters are required to be dealt with in the brigade’s constitution though there are some issues identified in the Fire and Emergency Services Regulations 2005 (SA).

• Brigades have to select members to fill certain roles. ‘Nominations of candidates for brigade elections will be called by the administrative co-ordinator of the brigade in accordance with the brigade’s constitution’ (r 11(4)). Apart from that most of the details as to who is eligible to stand for election for the positions and the way the election is to be conducted is set out in regulation 11.
• A member who ‘contravenes or fails to comply with … a provision of the SACFS organisation’s constitution’ may be subject to disciplinary proceedings (r 22) but the manner in which those proceedings are to be conducted is set out in the regulation.
• A brigade’s Administrative Co-Ordinator is ‘to give notice of meetings of the brigade in accordance with the constitution of the brigade’ (Fire and Emergency Services Regulations 2005 (SA) Schedule 4).

A brigade’s constitution is subject to the Act and Regulations. As noted, any constitution must meet the requirements set out by the Chief Officer (s 11(2)).  In that case it will be correct that ‘no matter what is written in your brigade constitution’ it will be overridden by any requirements imposed by the Chief Officer, ie a brigade’s constitution cannot be inconsistent with the Acts, Regulations or the directions of the Chief officer.  Further, regardless of what is in a brigade constitution, ‘The Chief Officer of SACFS is responsible for the management and administration of SACFS’ which includes the brigades (s 58).

When writing about the NSW RFS I said ‘it’s not at all clear why brigades need constitutions, rather than rules or standing orders…’ and that would also be my view with respect to the CFS.  Brigades are established by the Chief Officer who is responsible for the ‘management and administration’ of the CFS.   Any brigade constitution must be subject to the direction and requirements of the Chief and there is little explanation of what is required to be in the constitution.  The only matters that get mentioned are the process of nominations (but not the process of election) for various offices and details of when the brigade is to meet.

Constitutions for brigades is a throw back to the days when ‘Firefighting was left to local residents who would band together to fight fires as they arose, without any formal organisation or authority to set back burns’ (Country Fire Service, History of the Country Fire Service (undated)). Under the Country Fires Act 1989 (SA) s 12 it was the Board that determined the Brigades’ constitution which makes it sound much more akin to standing orders rather than a ‘constitution’.

If anyone reads this and goes back to look at that earlier post on the NSW RFS see Constitutions for NSW RFS brigades (May 21, 2014) do be aware of the age of that post and in some respects it is out of date.  Today all brigades of the RFS are established by the Commissioner not a local authority (see RFS Service Standard 2.1.1 Formation and Disbandment of Brigades and Groups of Brigades, [1.2]).  Further RFS Service Standard 2.1.2 Brigade Constitution, issued 21 December 2017 now sets out the terms of the Constitution of any RFS Brigade. That post has to be read subject to those updates.

To return to the question. I was asked:

We were told no matter what is written in your brigade constitution it can and will be overridden by the SACFS  constitution…If this is the cause then what is the point of having a set of brigade rules that are in our constitution if it’s going to be over ruled by the CFS constitution.

I think there is a misnomer there.  There is not a SACFS Constitution per se.  The CFS is constituted by the Fire and Emergency Services Act 2005 (SA) s 58. There is no constitution per se or, if there is, it is the Act.  It is certainly the case that ‘no matter what is written in your brigade constitution’ it cannot be inconsistent with the Act or Regulations.  It also has to meet any requirements published by Chief Officer (s 11(2)).   Within that space a brigade may have a constitution to provide for calls for nominations, meetings, and record keeping and other things about how that brigade is to operate.

It seems to me calling the Brigade’s operating rules a constitution seems inappropriate. These documents do not ‘constitute’ the Brigade (either in South Australia or New South Wales).   In SA the brigade is established by the Chief Officer and is subject to the Act and any requirements published by the Chief Officer.  The purpose of the Constitution is to set local procedures within the ‘gaps’ left by the Act and the Chief Officer’s requirements.

Today’s correspondent asks this hypothetical question;

Could a firefighter join a class action against an insurance company for emotional distress caused in fighting said fire at the centre of the class action?

The Carwoola Fire being the case in point.

The answer is yes, but with some limitations.  I have previously discussed how there is no ‘fireman’s rule’ in Australia and that injured rescuers can sue those that negligently cause the event that leads to their injuries; see:

• Rescuers and nervous shock or mental illness; Wicks and Sheehan v SRA (June 17, 2010);
• “Cop sues offender’s family” (May 22, 2013);
• Police officer sues mental health patient for battery(December 18, 2018); and
• Deceased driver liable for police officer’s PTSD (February 1, 2019).

It follows that if someone negligently started a bushfire and a firefighter was injured by that fire then he or she could sue the defendant (or in the case of the Carwoola fire, the insurer – see Bushfire class action continues even though defendant is in liquidation (August 18, 2019)).

The limitations that I imagine depend on the nature of the class action.  A class action is where a representative plaintiff brings the action on behalf of the class of people affected by the event.  In a bushfire the class of people may be those that suffer loss of property, or physical or psychiatric injury, or economic losses or some combination of those.  The idea is that if the court can determine for one plaintiff whether, say, the defendant was negligent then that resolves the issue for all the other plaintiffs.

The question that a firefighter would need to consider before joining a class action (as anyone does) is whether he or she is really a member of the class as defined.    A firefighter may have trouble fro example putting their PTSD down to one event so the issues of liability may not be the same and that may mean they are better off bringing their own action rather than joining the class action.  That is however true for anyone who is thinking of joining a class action.

A firefighter can sue a person that negligently causes the fire that in turn causes their injuries. There is nothing new in that.  It follows that if they are a member of the class as defined in a class action, a firefighter could join that class action regardless of whether the defendant is the actual person or entity that caused the fire or as in the case of the Carwoola class action, an insurance company that has been substituted for a defendant in liquidation.

Today’s correspondent asks:

How do you go about getting a DNR order from a doctor ?…..it appears to still be a very grey area.  I am not sick, nor do i have any impending health issues.

My simple answer to ‘how do I …?’ is ‘you complete the prescribed form and pay the prescribed fee (if there is one)’.   In many states there is a form and procedure set out in the legislation – for example the Medical Treatment Planning and Decisions Act 2016 (Vic) sets out details of who can give an advanced care directive and in what form and how it is to be interpreted.

However as I’ve said before, the common law allows anyone to refuse treatment and that need only be communicated in any way that is effective (see for example Medical Treatment Planning and Decisions Act 2016 (Vic) s 10 ‘Other rights to refuse medical treatment not affected’).

Treating doctors can also make a DNR order when in their opinion (made in accordance with appropriate medical practice which requires taking into account the patient’s wishes and consulting with other professionals, not just on a whim) that further resuscitation would not advance the patient’s interests (see Airedale NHS Trust v Bland [1993] AC 789; see also for example Consent To Medical Treatment and Palliative Care Act 1995 (SA) s 4B ‘Consent not required for withdrawal etc of medical treatment’).   A doctor is only obligated to provide treatment that is in the patient’s best interest and warranted by their condition.  The fact that a person wants an antibiotic for a viral infection not only does not compel a doctor to prescribe the antibiotic, he or she should not make the prescription as it is not warranted.  Equally if resuscitation (whatever that means in the context) is not warranted by the patient’s condition because it will be futile or over-burdensome, then the treating medical team can refuse to provide that treatment.

The first step to ‘getting a DNR order from a doctor’ is to talk to the doctor.

Today’s correspondent asks if I

…can find somewhere in the legislation that requires the local Council to provide a facility for the local SES?

Another interesting question is, if not required under legislation to provide a facility, can a local Council charge a lease fee to the NSW SES for the facility it uses/occupies?

The obligations of local governments are set out in the State Emergency Service Act 1989 (NSW).  Section 17 says (emphasis added):

(1)  The Commissioner may, on the recommendation of the council of a local government area, appoint one or more persons as a local commander for the area…

(5)  The council of a local government area must, within 3 months of the appointment of a local commander for the area, provide (free of charge) suitable training facilities and storage and office accommodation to enable the local commander to exercise his or her functions.

(6)  Any such facilities and accommodation are to be of a standard approved by the Commissioner.

The local commander is the ‘commander of [all] SES units in a local government area…’ (s 3).  Where there is only one SES unit within a local government area, the unit commander is also the local commander (s 17A(3)).  Section 17(5) makes it clear that council cannot charge a fee for the premises provided under s 17.

A volunteer with St John WA asks a question that I cannot answer, but I can make some comments.  The question is:

Most sub centres are just about to or have had their AGM’s. The sub centre I am at is operated by volunteers only, with an elected committee and one CP who has no voting rights. I asked for a copy of the constitution before our AGM and none is available. There is no copy on St John intranet. All sub centres appear to have access to “sub centre guidelines” but these are very vague and often ask more questions than answers. I was of the opinion that all “NFP Inc” bodies had to have a constitution for all members available upon request. I am sure in WA, St. John would have their own constitution and not operate under model rules. But either way we should know or have access to them. I have made inquiries into this but the organization is growing and currently we have many people in acting positions who appear to not know and have little to no knowledge on this topic. Myself included. It would be appreciated if some light could be shed on our obligations in holding AGM’s and meetings.

This is a really difficult question to answer as I simply don’t have enough detail, the question has to go back to St John (WA), but here are my thoughts given the lack of detail.

The St John Ambulance Australia (WA) 2017/2018 Annual Report says (p. 5):

St John Ambulance Western Australia Ltd is a company limited by guarantee. We are accountable under the Corporations Act 2001 and regulated by the Australian Securities and Investment Commission and the Australian Charities and Not-for-profits Commission.

A company is a legal entity that can sue and be sued.   There is one legal entity, St John Ambulance Western Australia Ltd.  A copy of the Constitution of St John Ambulance Western Australia, adopted on 22 October 2012 is available via the Australian Charities and Not-for-Profits Commission website. St John Ambulance Western Australia Limited is the name by which ‘The Commandery in Western Australia of The Most Venerable Order of the Hospital of Saint John of Jerusalem’ is to be known (cl 8).  Clause 37 says:

The State Board will be responsible for, and must set policy as to all activities to be undertaken in pursuit of the objectives and purposes of Commandery, and manage exclusively all of the business and charitable operations and affairs of the Commandery. Wherever this Constitution requires the Commandery to do anything which is not done by Commandery Chapter,the State Board is responsible to do it.

With respect to sub-centres the Constitution says (cl 1) ‘St. John Sub-Centre means a separate body formed by the Commandery referred to in Article 46.1’.  Article 46.1 says:

The Commandery has from time to time established, and may in future from time to time, in various parts of the State, establish, regulate, manage or dissolve St. John Sub-centres, First Aid Volunteer groups, or bodies to undertake other activities, and has or will recruit and engage volunteers and full and part time employees to staff those activities. For clarity, it is stated that the bodies so formed are not corporately, or legally part of Commandery and the persons so recruited or engaged are not by virtue of that recruitment or engagement Commandery Members.

I fail to understand what art 46.1 says at all.  If they are not ‘corporately, or legally part of Commandery’ what are they?  If the commandary is employing the staff members there must be a legal relationship with the commandery even if the volunteers and staff are not ‘members’ of the Commandery (cl 17).  A person can be an employee of a company without being a member of the company (an employee of BHP does not get to vote at the AGM, only a shareholder does).  The fact that a person who volunteers or is employed by St John is not a member of the Commandery makes sense, but to say that the sub-centres are not ‘corporately, or legally part of Commandery’ at least to me does not.

It could only make sense if the sub-centres were separate legal entities that St John funded at an arms length eg by the payment of grants, but that is not the case.  The St John website says (emphasis added):

St John Ambulance sub centres are responsible for the delivery of ambulance services in their community.

There are about 100 sub centre committees that manage operations on behalf of St John Ambulance Western Australia at full volunteer-run locations. In addition, there are 15 country sub centres with a mix of Volunteer Ambulance Officers and Career Paramedics working side-by-side.

There is nothing to suggest the sub-centres are legal entities.  I doubt that a sub centre can sue or be sued in its own name.  The 2017/18 Annual Report, at p. 9 lists statistics relating to the combined sub-centres – their assets, the number of paid and volunteers staff, the number of patients treated etc – as part of the work of St John.   The sub-centres are listed as part of St John’s ‘159 regional locations’ (p. 27). Note 28 to the Accounts says ‘The following sub centre locations and support funds have been aggregated with the metropolitan operations in the aggregated financial statements’.  If the accounts have been aggregated the sub centres must be ‘corporately, or legally part of Commandery’.  I am not a corporate lawyer and perhaps a corporate lawyer can make sense of it, but to me cl 46.1 makes no sense.

If they are not a legal entity in their own right, and they are established by the Commandery, then the sub-centres must be legally part of the company that is the Commandery (despite cl 46.1). If it is correct then how they are structured, what meetings they need to call and what they can do all depend on how the company (St John Ambulance Western Australia Ltd) has set them up and what rules the company has given them in order to operate.

That sort of detail is not in the constitution nor would it be expected – no company constitution is going to define how the organisation is managed internally, that is a matter for the executive and the Board (cl 37).  It may be that all there is are ‘sub centre guidelines’.

What little I can say is what is required of the sub-centre Committees is a matter for St John Ambulance Western Australia Ltd to determine.  If the sub-centres don’t know what’s expected of them that must be a concern about appropriate governance and management.  I have no idea what cl 46.1 of the Constitution means.  It is, in my view, contradictory to say both

The Commandery has from time to time established, and may in future from time to time, in various parts of the State, establish, regulate, manage or dissolve St. John Sub-centres, First Aid Volunteer groups, or bodies to undertake other activities,

and

… the bodies so formed are not corporately, or legally part of Commandery …

If they ‘are not corporately, or legally part of Commandery’ then I have no idea what they are.

A correspondent has drawn this news story to my attention – Evan Morgan Grahame ’Triple-zero call-taker charged with disclosing official secrets in alleged tow truck rort’ ABC News (Online) 20 August 2019.

My correspondent says:

I’d be interested to hear your thoughts on this article:

Specifically the charges of ‘disclosing Official Secrets’ component related to the accused charges. While probably a clear breach of employment contract (and clearly immoral), I don’t know enough about the law to know if a private company’s data is regarded an official secret? But I’d be interested to hear your thoughts.

The story, in summary, says:

A St John Ambulance triple-zero call-taker has been charged after allegedly relaying details of traffic crashes to people in the towing industry…

[Police] Superintendent Darren Seivwright told ABC Radio Perth the woman allegedly sourced the information from a secure police database and received payment for it…

“All of the information that we hold here at WA Police has the personal information of everybody in Western Australia on it, and it’s therefore considered to be an official secret,” he said.

“The allegation is that one of our employees used that information to gain a personal benefit.​”

The immediate question arising from the report is did she work for St John Ambulance or WA Police?  Other versions of the story confirm that she worked for St John.  An article in the Guardian Express which also quotes Superintendent Seivwright says:

‘the arrests were linked to the January arrest of a 32-year-old woman, who was employed at the Police Assistance Centre and was paid for tip offs’.

Superintendent Darren Seivwright said the link between all the people charged in the Internal Affairs Unit investigation, believed to be six altogether, seemed to be the same towing company.

What I infer is that employees of both St John and WA Police were involved but the person the subject of the ABC article was a St John employee and whilst I don’t know all the details of how the St John (WA) State Operations Centre works I will assume that the St John operators cannot access the WA Police records.  I will assume therefore, that the St John call taker was passing on information where people made triple zero phone calls requesting ambulance assistance at a motor vehicle accident.  I think, having read a number of reports on the matter, that the quote attributed to Superintendent Seivwright, that ‘the woman allegedly sourced the information from a secure police database and received payment for it…’ relates to the ‘employee at the WA Police Assistance Centre, which handles both emergency and non-life-threatening calls, was charged with corruption in January’.

I may be wrong in my understanding of where the St John employee got the information that was passed on but as we will see not much will turn on that.

We’ve all watched spy movies and heard reference to people ‘signing the Official Secrets Act’.  There is indeed the Official Secrets Act 1989 (UK) but the sort of secrets that, in the UK MI5 and MI6, or in Australia ASIO, ASIS and the Defence Signals Directorate deal with seem to be in a very different class to information about the location of a motor accident.

If this person has been charged with disclosing official secrets then it has to be under WA law and the relevant law is the Criminal Code 1913 (WA) s 81.    That section says:

Disclosing official secrets

(1)          In this section —

disclosure includes —

(a)          any publication or communication; and

(b)          in relation to information in a record, parting with possession of the record;

government contractor means a person who is not employed in the Public Service but who provides, or is employed in the provision of, goods or services for the purposes of —

(a)          the State of Western Australia; or

(b)          the Public Service; or

(c)           the Police Force of Western Australia;

information includes false information, opinions and reports of conversations;

official information means information, whether in a record or not, that comes to the knowledge of, or into the possession of, a person because the person is a public servant or government contractor;

public servant means a person employed in the Public Service;

unauthorised disclosure means —

(a)          the disclosure by a person who is a public servant or government contractor of official information in circumstances where the person is under a duty not to make the disclosure; or

(b)          the disclosure by a person who has been a public servant or government contractor of official information in circumstances where, were the person still a public servant or government contractor, the person would be under a duty not to make the disclosure.

(2)          A person who, without lawful authority, makes an unauthorised disclosure is guilty of a crime and is liable to imprisonment for 3 years.

Summary conviction penalty: imprisonment for 12 months and a fine of $12 000.

The State of Western Australia does not operate an ambulance service, instead it contracts with others, including St John Ambulance (WA), for those organisations to provide ambulance services to the community.

“St John Ambulance Australia (Western Australia) Inc. (SJA) is contracted by WA Health to provide ambulance services throughout the state. SJA is a non-government incorporated association, linked to the international Order of St John. It has a long history in Western Australia (WA) as the primary provider of ambulance services, operating since 1922. In this regard, WA and the Northern Territory are unlike other Australian jurisdictions where ambulance services are provided by government agencies and regulated by legislation.” (Delivering Western Australia’s Ambulance Services (Western Australian Auditor General’s Report, Report 5 – June 2013, p. 5).

The contract between WA and St John is available online – Services Agreement between State of Western Australia and St John Ambulance Western Australia Limited.  That contract was due to expire on 30 June 2018 but has been extended until June 30, 2020 (Minister for Health, St John Ambulance WA contract extension (26 June 2018)).

St John Ambulance (WA) is not, then, an entity that saw a gap in the market and is providing ambulance services on a fee for service basis entirely in its own right and according to its own assessment of the market.  It is a contractor to government providing services at the request of and in accordance with the terms agreed to with government.  I think we can safely say that St John (WA) is a ‘government contractor … who provides … services for the purposes of — (a) the State of Western Australia’.  It follows that a person employed by St John (WA) is also a government contractor for the purposes of s 81, quoted above.

It is therefore an offence for an employee of St John to disclose ‘information … that comes to the knowledge of [that] … person because the person is a … government contractor’.  Information about the location of a car accident that comes to a person’s knowledge because they have received a triple zero phone call has only come to that person’s knowledge because they are receiving that call as part of the contracted ambulance services.  It is therefore ‘official information’.

The issue that I can see is whether the Crown will be able to prove that there was ‘a duty not to make the disclosure’.  That may depend on the terms of any employment contract and any duty of confidentiality in those agreements and in the service agreement.  The confidentiality clause in the service agreement between WA and St John (cl 17) relates to confidential information held by each organisation with respect to the other and does not appear relevant.   The definition of confidential information in cl 1 relates to information about a patient’s identity and diagnosis which is not the same as information about where an accident has occurred.  It does include ‘all data collected in the course of this Agreement’ which may be wide enough to capture the information that was passed on.   The situation is made more complex by the fact that St John itself does give out information on the location of emergency calls in order to encourage nearby first aiders to respond – St John First Responder App (2019).  If St John can broadcast to the world the location of an emergency is there a duty on the call taker not to ring someone and pass on that same sort of information?

What we don’t know is the details of the information the defendant is alleged to have provided, where it was accessed from or the terms of the employment contract.

If the information contained personal details, eg the names of people involved in the accident, then it will be easier given the terms of the agreement between St John and WA, and the terms of the Privacy Act 1988 (Cth) (as applied in WA) to argue that there was ‘a duty not to make the disclosure’.

If the information really was accessed from a database maintained by WA Police that St John call takers had access too, there is more likely going to be a confidentiality clause that prohibits further disclosure of that information and that too would make it easier to argue that there was ‘a duty not to make the disclosure’.

We don’t know the terms of any employment contract and most contracts would either expressly, or by implication, impose a requirement not to disclose information that is received in the course of one’s duties.  The Crown cannot however rely on a mere expectation that such a duty exists, it will need to prove, beyond reasonable doubt, that there was ‘a duty not to make the disclosure’.

This is a discussion on s 81 using the report on ABC News as a stimulus for the discussion.  It is not meant to suggest to either the Crown or the defendant in the case before the court how to run the case or what the outcome might be.  I am not suggesting that the defendant is, or is not guilty of the offences charged.  I do not have sufficient details nor is it my place to do that.

This discussion aims to address the point raised by my correspondent who said while ‘probably a clear breach of employment contract (and clearly immoral), I don’t know enough about the law to know if a private company’s data is regarded an official secret’.    A private company’s data is not an official ‘secret’ unless that company is a contractor to government and receives the information in the performance of its duties under the contract.  Even so it is not an offence to disclose that information unless there is ‘a duty not to make the disclosure’.  That duty could arise from law, the contract or the terms of the employment agreement.

Section 81 is entitled ‘Disclosing official secrets’ but the words ‘secret’ or ‘secrets’ do not appear anywhere in the section.  It should be called ‘Disclosing official information’.

Today’s correspondent asks:

1. Can I detain (or apprehend) a patient suffering a mental illness in the ACT whilst working as an event Paramedic?
2. Can I detain (or apprehend) a patient suffering a mental illness in any state or territory of Australia as a Registered Paramedic whilst off duty?

A bit about me to make this easier:

I’m an interstate Paramedic (AHPRA Registered).  I have the ability to detain patients under s56 of the Mental Health Act in South Australia whilst working for SA Ambulance. Sadly, I exercise these powers quite often, as despite the immense effort of staff, the mental health system lacks resources in SA. I also happen to work for a ‘private Ambulance Service’ in the ACT. I say ‘Ambulance Service’, because the entity is authorised to provide Ambulance Services under the Emergencies Act 2004, with approval from the minister;

In SA there is a low threshold (in my opinion), and this is shared by the Chief Psychiatrist, see s56 (c):

  (c)         it appears to an authorised officer that—

                  (i)         the person has a mental illness; and

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

Note I can place someone under ‘Care & Control’ under s56 merely for damaging their own property.  Imagine, a well-minded neighbour calls the ambulance service for a homeowner damaging their own private property secondary to a situational crises.

For my ACT work, my research has been found wanting, as I cannot find an actual definition for an authorised officer, apart from in ‘MENTAL HEALTH ACT 2015 (NO. 38 OF 2015) – SECT 139CB’, where it lists an ‘Authorised Ambulance Paramedic’ but does not define the term.  What constitutes authorised?  Clearly ACT Ambulance Paramedics fit into this, but do NSW Ambulance Paramedics or private Paramedics count?  I have not yet detained anyone, but want to know my legal standing before doing so – E.g. A person appears to be suffering a mental illness at a music festival in the ACT.  In the absence of another authorised officer (e.g. Medical Practitioner), is a private paramedic able to section a patient?

In another scenario, I am holidaying in a country town of Queensland and note a person on the street displaying signs of a mental illness.  I am not concerned for my own safety, scene is safe, but I call 000 and request Ambulance and Police to attend.  There will be some delay before their attendance.  The patient/person wishes to leave the scene and I feel they are a threat to themselves.  Can I detain/section/apprehend them?

Can you please shed some light on the above questions?

Depriving a person of their liberty is the ultimate exercise of state power and the power is therefore generally limited to the agents of the state (though, having said that, there are powers of citizen’s arrest and as we saw in Sydney recently, taking action to detain a person who is an active danger is not only encouraged but honoured).   Putting aside citizen’s arrest the power to detain is reserved for the state so we might, as a starting position, assume that a paramedic who is not currently working for a jurisdictional ambulance service will not have an independent authority to detain a person for their own good.   Let us then look at the law.

My correspondent is correct, the relevant Act in the ACT is the Mental Health Act 2015 (ACT).  Section 80 says:

A police officer or authorised ambulance paramedic may apprehend a person and take the person to an approved mental health facility if the police officer or paramedic believes on reasonable grounds that—

(a) the person has a mental disorder or mental illness; and

(b) the person has attempted or is likely to attempt—

(i) suicide; or

(ii) to inflict serious harm on the person or another person.

As my correspondent has noted it does not refer to a ‘paramedic’ but an ‘or authorised ambulance paramedic’.   The Dictionary that forms part of the Act says:

“authorised ambulance paramedic “means a member of the ambulance service—

(a)     employed as a paramedic; and

(b)     authorised by the chief officer (ambulance service) to apprehend people with a mental disorder or mental illness.

It refers to ‘the’ ambulance service, not ‘an’ ambulance service so I would infer that means ACT Ambulance Service.  In any event the paramedic has to be authorised by the chief officer (Ambulance Service).  If my correspondent is acting for an approved emergency service provider (Emergencies Act 2004 (ACT) Part 4.6) then in my view they are not a member of ‘the’ ambulance service.  Even if they were, the absence of an express authority means that my correspondent is not an ‘authorised ambulance paramedic’ and has no authority to act under the Mental Health Act 2015 (ACT) s 80.    That makes sense when we recall that s 80 says that an authorised paramedic ‘may apprehend a person and take the person to an approved mental health facility’ (emphasis added).  An event paramedic may want to detain a person, but they probably don’t want to transport them.

There are both common law and statutory powers to use reasonable force in self-defence (including the defence of others) and to prevent a suicide (in the ACT see Criminal Code 2002 (ACT) s 42 and Crimes Act 1900 (ACT) s 18 respectively). That would give rise to a power to detain a person who was a danger to others or was threatening to take their own life (not just damage their own property or who otherwise would benefit from mental health care).  Equally if the person’s symptoms mean that he or she is not competent to give consent (remembering that being mentally ill does not, of itself, mean a person is not competent – see Victorian decision on refusing medical treatment – reviewing the principles (November 24, 2018)) then the doctrine of necessity would justify action that is reasonable in the circumstances and in the patient’s best interests and that may include seeking to gently detain a person pending arrival of police or ACT Ambulance.  I’m not a clinician but one would have be careful that attempts to detain a person ‘in their own best interests’ did not do more harm than good if they were not an actual threat to themselves or others but that is a matter for clinical judgment.

When it comes to interstate action every state and territory does provide for interstate cooperation in the exercise of powers and the treatment and transport of the mentally ill (see for example Transporting the mentally ill from NSW to the ACT (July 18, 2018) and Mental health services by paramedics across the NSW/Victoria border (October 25, 2018)).

Without going through every section in every state, the principal is that authorised officers can exercise their authority when interstate.  As my correspondent has noted, a paramedic in South Australia has ‘the ability to detain patients under s56 of the Mental Health Act in South Australia whilst working for SA Ambulance’ (see definition of ‘authorised officer’ and ‘ambulance officer’).  That would mean that if in Queensland for work, eg on an interstate deployment, my correspondent could exercise the relevant powers, but not whilst on holiday.

The powers conferred on paramedics are conferred on them in their capacity as employees of the jurisdictional ambulance services and therefore as agents of the State. (Here I note that the power to detain the mentally in WA is vested in police as the state does not run the ambulance service – see Trauma or mental illness – WA (June 19, 2019)).  It follows that in my view the answers to the questions asked are:

1. Can I detain (or apprehend) a patient suffering a mental illness in the ACT whilst working as an event Paramedic?

The short answer is ‘no’, at least not under the provisions of the Mental Health Act 2015 (ACT).  The answer maybe ‘yes’ if the person is a threat to others, threatening suicide or not competent to give consent to treatment and what is proposed is reasonable in the circumstances and in the patient’s best interest.

2. Can I detain (or apprehend) a patient suffering a mental illness in any state or territory of Australia as a Registered Paramedic whilst off duty?

No.

For a related post, see The mentally ill and event first aid (January 10, 2019).

In the post The end of an era at the Australian National University (August 18, 2019) I announced that I was being made redundant from the ANU, not from life.  Thank you all for the kind comments and best wishes but as I said ‘I will continue this blog at least whilst I see what other opportunities arise.’

What I meant is that the blog will continue unless I find myself so engrossed in something new that I haven’t even discovered yet.   Unless and until that happens, the blog will continue though it will be written by Dr Michael Eburn, Barrister rather than Associate Professor Eburn. Keep sending those questions and insights and I’ll keep reporting on the cases that come across my desk.

In my last post, The end of an era at the Australian National University (August 18, 2019) I announced that my position at the ANU was redundant and I was to leave the university. There I said ‘I will continue this blog at least whilst I see what other opportunities arise.’  Just to prove the point I follow that post with this blog post reporting on the decision in Margaret Ritchie v Advanced Plumbing and Drains Pty Ltd [2019] NSWSC 1028.

Margaret Ritchie v Advanced Plumbing and Drains Pty Ltd is a class action arising out of ‘of a bushfire which spread from a property at Carwoola NSW, on the Southern Tablelands near the Australian Capital Territory, on 17 February 2017. The plaintiff alleges that the bushfire was negligently started by Advanced Plumbing.’  The problem is that Advanced Plumbing went into liquidation on 18 December 2017.

Ms Ritchie sought leave to continue the action against CGU, the insurers of Advanced Plumbing.  Her right to proceed directly against the insurers, as well as the need to obtain leave of the court was contained in the Civil Liability (Third Party Claims Against Insurers) Act 2017 (NSW) (“the Act”).   In order to be allowed to proceed, the plaintiff had to show ([4]):

1. That there is an arguable case of liability against the defendant (ie Advanced Plumbing and Drains Pty Ltd);
2. That there is an arguable case that the insurer’s policy responds to that liability; and
3. There is a real possibility that, if the plaintiff obtains judgment against the defendant, the defendant will not be able to meet it.

In a judgment delivered on 16 August 2019, Campbell J gave Ms Ritchie leave to continue the proceedings.  There was no real issue on point 3, as Campbell J said (at [5]) ‘Advanced Plumbing is not a good common law defendant, it having gone into voluntary liquidation and the initial report to creditors indicating an excess of liabilities over assets.’  The issue was whether there was an arguable case that Advanced Plumbing was liable and whether CGU were on risk to cover that liability.

With respect to the fire the plaintiff’s allegations (at [8]) are:

… the essential act of negligence of Advanced Plumbing pertains to the actions of its employees, and another, who, on a total fire ban day, used a “power cutting wheel” to cut reinforcing steel. The use of this equipment produced a “shower of sparks” that ignited nearby long grass causing a large bushfire. This fire spread over about 3500 hectares and caused very extensive damage. The occurrence took place at a construction site on which a house was to be erected for the company’s director who had directed several employees to carry out with the works on his private property. The evidence read at the hearing suggests that the person operating the cutting tool was a sometime employee of Advanced Plumbing not then currently on its books who the foreman had enlisted for the day. He appears to have been subsequently, formally re-employed as an apprentice plumber.

CGU denied liability (at [6])  because they said that the conduct that caused the fire ‘did not arise “as a result of an occurrence in connection with [Advanced Plumbing’s] business”; and is caught by the “welding endorsement” excluding liability arising from work involving certain processes, or the use of specified equipment, unless specific safety measures are adopted.’  The machine being used was a ‘quick cut’ not a welder ([13]).

His Honour held (at [19]-[26]) that there was an arguable case against the defendant. He said:

The material read before me clearly shows that there will be evidence available at the trial of the action demonstrating that Advanced Plumbing’s director and guiding mind, Jason Hooper, directed a number of employees to perform work on the construction site for his proposed private dwelling. Two persons were directly involved in the work using the quick cut. They were Shannon Orford, described as Advanced Plumbing’s “Civil Foreman”, and Harry Elliot who at that time probably was not employed by Advanced Plumbing.

The evidence seems to indicate that Mr Orford and Mr Elliot were working in a trench which had been previously dug for footings for a proposed retaining wall, near the construction pad for the dwelling. They were placing reinforcing steel for concrete footings which were to be poured on one of the following days. It was necessary to cut the steel in places where the footing dropped a level. The cutting was done using the quick cut, more formally a Husqvarna K 970 power cutter. The friction between the high speed cutting wheel and reinforcing steel ordinarily causes a shower of sparks. For this reason the usual method is to cut directing the shower of sparks into the trench. Half a dozen or so cuts had been made earlier without incident…

The men were apparently entirely oblivious to the total fire ban then in place. Mr Orford and Mr Hooper both agreed that had they been aware of the ban, bolt cutters would have been used to cut the steel, rather than the quick cut.

Initially Mr Orford claimed to be the person using the quick cut when the fire started. It later became apparent he had said that to protect the younger Mr Elliot. It appears to be the case that Mr Elliot was given the task of completing a particular cut. He had experience cutting with an angle grinder. Initially he directed the shower of sparks into the trench in the proper manner. However, the sparks rained on Mr Orford who yelled out for Mr Elliot to turn the machine around. It is apparent that Mr Elliot obeyed this yelled command directing the shower away from the line of the trench and in the direction of the long grass across the fire ring…

Whatever complexities there may be in deciding questions of the existence, nature and scope of duties of care in the modern law of negligence, generally speaking a person who undertakes the performance of work on land will be under a duty to exercise reasonable care in its performance to avoid foreseeable risk of harm to others: Voli v Inglewood Shire Council (1963) 110 CLR 74; [1963] HCA 15. Where the work is hazardous work, including work involving a foreseeable risk of the escape of fire from the land, the landowner or other person authorising the work will be subject to a non-delegable duty of care extending to ensuring that the persons performing the work take reasonable care to avoid that occurrence: Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520; [1994] HCA 13. For this reason, and given the relatively low threshold I have referred to, it is pointless to pause to consider whether Advanced Plumbing would be vicariously liable for any negligence on the part of Mr Elliot: cf, Sweeney v Boylan Nominees Pty Ltd (2006) 226 CLR 161; [2006] HCA 19.

I regard it as arguable that Advanced Plumbing owed Ms Ritchie and other neighbours a non-delegable duty of care … I am also satisfied that … cutting steel using a quick cut on an extremely hot day exposed the plaintiff and other group members to a reasonably foreseeable and not insignificant risk of harm by the escape of fire from Mr Hooper’s property. I am also satisfied that it is arguable that a reasonable person in the position of Advanced Plumbing would have taken the precaution of requiring the work of cutting the reinforcing steel to be performed using bolt cutters which, on the material read at the hearing, did not involve the risk of the ignition and escape of fire.

It is also arguable that use of the quick cut or the failure to use bolt cutters was a necessary condition, as a matter of fact, of starting the fire and of its escape … it is also at least arguable that no real question arises about the scope of Advanced Plumbing’s liability properly extending to the harm suffered by the plaintiff and other group members.

The burden to show that the insurance policy issued by CGU did not extend to cover this risk fell to CGU ([28]).  Determining this matter required careful consideration of the terms of the policy.  CGUs argument was that the work being done was not part of the business of Advanced Plumbing. First the work was private work for the company’s director and second the work being done was ‘part of the preparation and laying of metal reinforcement mesh, in preparation for a concrete pour…’ and this ‘was not related to drainage or plumbing work’ ([38]).

The business case argument failed as the definition of the defendant’s business, in the insurance policy included ‘private work undertaken by the Insured’s Employees for any director, partner, or senior executive of the Insured’ (see [39]-[41]).

The normal work of the defendant was ([42]) “[p]rincipally plumbing and any other activities incidental thereto” not only plumbing.   His Honour accepted ‘the submission that Advanced Plumbing was not a typical residential plumbing service. Rather, on the evidence it is apparent that it was a business which undertook larger scale commercial projects.’  Further the evidence was (at [45]) that:

… the works conducted on his private premises were well within the scope of the usual business activities of Advanced Plumbing. There is no evidence that such work was any more complex than usual, or that that it was significantly different from the types of jobs typically undertaken by Advanced Plumbing.

At [53] His Honour concluded:

I am not satisfied that CGU has established that it is beyond argument that it is entitled to disclaim indemnity because Advanced Plumbing’s potential liability is not a result of an occurrence happening in connection with Advanced Plumbing’s business as required by the insuring clause.

With respect to the welding endorsement, the insurance policy said (at [55]-[56]):

The liability of the Insurer to indemnify the Insured pursuant to Clause 1.1 and to pay other costs and expenses pursuant to Clause 1.2 shall not extend to any liability arising out of or in any way connected with any arc or flame cutting, flame heating, arc or gas welding, electric, oxy-acetylene, laser cutting and/or spark producing equipment by or on behalf of the Insured or similar operation in which welding equipment is used, unless such activity is conducted in strict compliance with the:

1. Australian Standard AS 1674, part 1 – 1997 ‘Safety in Welding and Allied Processes – Fire Precautions’…

CGU’s argument is that the Husqvarna K970 power cutter is “spark producing equipment” within the meaning of the welding endorsement. And that the work in question was not conducted in strict compliance with Australian Standard AS1674 Part 1 – 1997.

At [63] His Honour said:

In my opinion the general expression “spark producing equipment” in context in the welding endorsement should be read down to be limited to equipment of the type specified, all of which, as Mr Rankin explains, involve the direct application of heat in one form or another to perform their function. In my judgment “spark producing equipment”, in context, does not apply to equipment which may incidentally produce sparks depending upon the particular use to which it is being put on a particular occasion. It’s clear that the power cutter, or other grinders, can be used in a variety of industrial situations, all of which may depend upon friction to perform the equipment’s function, but not all of which produce sparks. I am not satisfied that it is beyond argument that the power cutter is caught by the endorsement.

Further even if the quick cut machine is covered by the endorsement (at [64]):

… the evidence indicates that certain precautions were taken including clearing the fire circle and the provision of fire-fighting equipment. It seems to be at least arguable if the endorsement applied that the standard was complied with at least in so far as the risk of grass or bushfire was concerned.

Accordingly it was arguable that CGU were on risk for the activity that caused the fire.  His Honour was not saying that CGU were liable, only that they could not establish that they were not liable so the matter can proceed to trial so the parties can lead evidence and have more complete arguments based on that evidence.   His Honour said (at [66]):

I am satisfied that it is arguable that Advanced Plumbing is liable to the plaintiff and other group members; that there is an arguable case that CGU’s policy responds to that liability; and there is a real possibility that if the plaintiff obtains judgment against Advanced Plumbing, that Advanced Plumbing will not be able to meet or satisfy that judgment.

Having reached those conclusions, His Honour made the orders allowing the action to proceed against CGU in the place of Advanced Plumbing.  It now remains to be seen how the issues of liability are finally resolved should the matter continue to trial.  Of course now that CGU know they are liable the matter may, like most cases, settle.

On Thursday 8 August the ANU announced that it would ‘withdraw from delivery of the GDLP [Graduate Diploma of Legal Practice] and the MLP [Master of Legal Practice] programs’ with ‘the subsequent closure of the SLP [School of Legal Practice]’.   The university is to discontinue ‘up to 29 … continuing academic staff positions’ and my position is one of those to go.  In short, I am to be made redundant and dismissed from the University.  My final date at ANU is yet to be negotiated.

It’s been an extraordinary career.  I’ve met and worked with some wonderful people. Academics and emergency management practitioners with amazing intellects, passion and commitment to making the world a better and more resilient place.  I’ve got to travel the world (largely at someone else’s expense) having been invited to conferences and events in Germany, Italy, Japan, Malaysia, New Zealand, Switzerland, the United Kingdom, the United States and around Australia.  My family and I have had the joy of spending 2 sabbaticals in the UK – 9 months at the University of Hull in 2003/2004 and 6 months at Northumbria University, Newcastle in 2017.

Being an academic is a privilege. I’ve got to choose the areas in which I want to work and have been fortunate enough to establish an expertise in, and be recognised as an expert in, the area of emergency management and response law.  Having been involved in emergency services since the age of 13 it has been a joy to turn that interest into a career.  I’ve worked with members of the fire, ambulance and emergency services across Australia and I’m grateful for the respect they’ve shown me and in return I have tried to honour the work that they do.

As a lawyer that expertise is not something that I could have developed in private practice as there just is not enough work in that area.  A legal practitioner becomes an expert in the work that comes in the door, not the work that they necessarily want to choose.

Whether I remain in this field remains to be seen.  I retain a practising certificate as a Barrister in the ACT and I have a very small practice giving advice to emergency service providers, both public and private.  There may be opportunities to expand that practice and to be available to offer training across the sector.  I will continue this blog at least whilst I see what other opportunities arise.  My time on the Board of Paramedics Australasia will end in November but I hope to continue to serve on the Board of St John Ambulance Australia (ACT).

This is an early transition to retirement and that is not a bad thing.  I’m looking forward to avoiding interminable emails and hopefully finding some work where going home means knocking off.  This is not a moment of sadness or anger; the forces of the Universe have come together to end my full-time career and force me to look for new opportunities.  Those opportunities will include finding ways, and now time, to step back and give my wife time to focus on the interests that she has put on hold whilst our girls needed her attention, and whilst my career has developed.

There are exciting times ahead.

Today’s correspondent has read

…  number of [your] recent posts regarding the registration of paramedics and protection of that title. Given that the Victorian government has passed the various acts required to neuter CFA and establish “Fire Rescue Victoria” including the establishment of a “professional firefighters registration board” [as described in various publications, not necessarily its legal name], can you make any comment on how this will impact the many volunteer firefighters, or those employed in industry, parks and so forth, within Victoria.

Some explanation of what this board is intended to accomplish could also help!

The Firefighters’ Presumptive Rights Compensation and Fire Services Legislation Amendment (Reform) Act 2019 (Vic) (‘the Reform Act’) became law on 3 July 2019. Part 2, dealing with compensation rights is in force.  Other parts of the Act dealing with the reforms to the CFA, the creation of Fire Rescue Victoria and the establishment of the Firefighters Registration Board are yet to come into force (see s 2).  I have previously commented on the provisions for presumptive rights to compensation (see Presumptive workers compensation law for Victorian firefighters (June 23, 2019)).

When the Reform Act comes into force, it will amend and rename the Metropolitan Fire Brigades Act 1958 (Vic).  The Act will be called the Fire Rescue Victoria Act 1958 (Vic) and what is now the Metropolitan Fire Brigades will become Fire Rescue Victoria (‘FRV’; Reform Act s 23).   The Act will also be amended to include provisions to establish the Fire Services Implementation Monitor and the Firefighters Registration Board (Reform Act s 85).  The references to sections of the Fire Rescue Victoria Act 1958 (Vic), below, are references to sections that will be inserted once the Reform Act is commenced.

The Minister is to prepare a plan to implement the reforms to the two fire agencies (Fire Rescue Victoria Act 1958 (Vic) s 130). The Fire Services Implementation Monitor is to ‘monitor and review the progress of Fire Rescue Victoria and the Country Fire Authority in carrying out the Implementation Plan’ (s 131).  The Monitor is to ensure that the CFA and FRV cooperate to ensure seamless fire services for Victorians and ‘ensuring that volunteer brigades are not adversely affected by the fire services reforms’ (s 130(2)(b)).

The Firefighters Registration Board, the subject of the rest of this discussion, is to be established by s 149.    The purpose of the Registration Scheme is (s 148(2)):

to provide for the registration of—

(i) officers and employees of Fire Rescue Victoria proposed to be made available to the Country Fire Authority under a secondment agreement within the meaning of section 25C(10); and

(ii) other persons who wish to be employed by Fire Rescue Victoria in order to be made available to the Country Fire Authority under a secondment agreement…

To understand that we need to go back to earlier provisions.  Currently the Metropolitan Fire Brigades operate in metropolitan Melbourne.  Outside that area, firefighting services are provided by the Country Fire Authority (the CFA).  The CFA has both volunteer and employed firefighters plus many people employed in other roles.  With the implementation of the fire service reforms, all employed fire fighters will be employed by FRV.  The CFA will become ‘a fully volunteer fire fighting service’ (Reform Act s 1(c)(ii)).   The CFA can employ the ‘Chief Officer, Deputy Chief Officer and Chief Executive Officer’ but other employees of FRV can be seconded to the CFA (Reform Act ss 50, 51 and 75).  In essence those employed to work for the CFA will actually be employed by FRV and seconded to the CFA.

The explanatory memorandum issued with the Bill says:

Fire Rescue Victoria and the Country Fire Authority will undertake a joint selection process to decide on suitable officers or employees for secondment.  The Chief Officer of the Country Fire Authority will have the final approval on whether an officer or employee is suitable for secondment.

Subsections (2) and (3) of new section 25C provide that if the Chief Officer of the Country Fire Authority is not satisfied that suitable officers or employees can be made available under subsection (1), the Chief Officer may request Fire Rescue Victoria to conduct a further external equitable, fair and transparent selection process, in consultation with the Chief Officer.

These provisions facilitate entry of new officers or employees into Fire Rescue Victoria for the purpose of a secondment to the Country Fire Authority.  A person cannot be engaged as an officer or employee of Fire Rescue Victoria as a result of this process, unless the person meets the registration requirements specified by the Firefighters Registration Board.  This will ensure that candidates possess the necessary skills and experience to perform their duties at the Country Fire Authority.

In short, a person who wants to be employed by FRV but who wants to work with the CFA has to be registered as a firefighter.  That will be of particular relevance to people who are not yet employed by the CFA or MFB but who, after the reforms has started, wants a job with the CFA.  He or she will have to meet the standards for registration before he or she can be employed by FRV and seconded to the CFA.

There are transitional provisions for current employees of the CFA who will be transferred to FRV (see Fire Rescue Victoria Act (as it will be) s 25C(4)).

How this will impact the many volunteer firefighters, or those employed in industry, parks and so forth, within Victoria?

Largely it won’t.  Volunteer firefighters and firefighters employed by agencies other than Fire Rescue Victoria won’t be affected. This registration scheme is not at all a copy of or similar to the scheme of paramedic registration under the Health Practitioner Regulation National Law.  The registration scheme is only relevant for people who want to be employed by FRV for the purposes of working for the CFA

Today’s question comes from NSW and relates to the use of the title ‘paramedic’.  My correspondent says

AHPRAs webpage says:

A person must be registered with the National Board if they:

• Take or use the title ‘paramedic’ in a way that could be reasonably expected to induce a belief that the person is registered under the National Law, (s 113(1)(a)) and/or
• take or use a title, name, initial, symbol, word or description that, having regard to the circumstances in which it is taken or used, indicates or could be reasonably understood to indicate, that the person is a paramedic or is authorised or qualified to practise in the paramedicine profession, (s 116(1)(b)) and/or
• claim to be registered under the National Law or hold themselves out registered under the National Law, (s 116(1)(c)) and/or
• claim to be qualified to practise as a paramedic (s 116(1)(d)).

I have noticed however that within the NSW service certain groups continue using the title without being registered. Several discussions have been had internally but it appears that the advice keeps being that as the government service we have certain exemptions from these provisions. Vocational entry officers and retired staff for example. In my station the vocational guys have the word Paramedic on insignia and often on their uniform, including in big lettering on their backs. Emails and other correspondence is generally addressed using the tile (eg Paramedic Eburn) even if they’re less than half-way through the course.

Outside the service I also see numerous companies such as Paramedical Services Pty Ltd and the Australian Paramedical College using paramedical as part of their trading name although they do not offer approved qualifications.

What are the actual rules around this and does the NSW service really have exemptions for the use of the title for their students and retired officers?

The website is just an interpretation of the law.  We need to go to the actual legislation.  The Health Practitioner Regulation National Law (NSW) s 113(1) says:

A person must not knowingly or recklessly–

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

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

The relevant title for paramedicine is ‘paramedic’.  So, we can rewrite s 113(1) to say:

A person must not knowingly or recklessly–

(a) take or use [the title ‘paramedic’]… in a way that could be reasonably expected to induce a belief the person is registered under this Law in the health profession [of paramedicine…], unless the person is registered in the profession [of paramedicine], or

(b) take or use [the title ‘paramedic’]…, in a way that could be reasonably expected to induce a belief the person is registered under this Law in the profession [of paramedicine], unless the person is registered in the profession [of paramedicine].

Further, s 116(1) says:

A person who is not a registered health practitioner must not knowingly or recklessly–

(a) take or use the title of “registered health practitioner”, whether with or without any other words; or

(b) take or use a title, name, initial, symbol, word or description that, having regard to the circumstances in which it is taken or used, indicates or could be reasonably understood to indicate–

(i) the person is a health practitioner; or

(ii) the person is authorised or qualified to practise in a health profession; or

(c) claim to be registered under this Law or hold himself or herself out as being registered under this Law; or

(d) claim to be qualified to practise as a health practitioner.

There is one key exemption to this rule as it applies to paramedics.  You can, according to the Paramedicine Board ‘… call yourself a ‘paramedic’ while your registration application is being considered as long as you submitted your application before participation day on 1 December 2018’ (see https://www.paramedicineboard.gov.au/Registration/After-youve-applied.aspx and Health Practitioner Regulation National Law (NSW) s 315).

New South Wales ambulance has no exemption that allows them to give the title to ‘paramedic’ to anyone who is not registered as a paramedic (or who applied for registration before 1 December 2018 and whose application is still being considered).  NSW cannot call someone a medical practitioner who is not a doctor, they cannot call someone a paramedic who is not a registered paramedic.

A person who ‘holds a Diploma of Paramedical Science issued by the Ambulance Service of New South Wales’ has a qualification that leads to registration (Health Practitioner Regulation National Law (NSW) s 312) but that does not mean a student who has not yet completed the diploma, and been registered, can use the title. Students, including students in the NSW Ambulance Diploma, may be registered as student paramedics (Health Practitioner Regulation National Law (NSW) ss 87 and 313) but this still does not give them the right to use the title ‘paramedic’.

A person could use the title ‘retired paramedic’ or ‘student paramedic’ as those qualifiers – retired and student respectively – would not suggest that the person is registered – see https://www.paramedicineboard.gov.au/Professional-standards/FAQ/Fact-sheet-Using-the-title-paramedic-after-1-December-2018.aspx see also The use of protected titles by students and others (January 30, 2018).

The use of the term ‘paramedical’ ‘… as  part of [a] … trading name …’ probably doesn’t breach the Act either.  No-one would think that the company Paramedical Services Pty Ltd is a registered paramedic anymore than one would think the Australian College of Nursing is a registered nurse.  The use of the word ‘paramedic’ or ‘paramedicine’ or even ‘paramedical’ could be problematic if it was used on the side of a vehicle and gave the impression that the vehicle was staffed by registered paramedics (see ss 113(2), 116(2) and 117(3)) but that all depends on context.

Conclusion

The rules set out in the Health Practitioner Regulation National Law (NSW) ss 113(1) and 116(1) quoted above, along with rules 113(2), 116(2) and 117 referred to but not quoted, are ‘the actual rules around’ the use of the title ‘paramedics’.

The rules do not give ‘the NSW service … exemptions for the use of the title for their students and retired officers’.  Only a registered paramedic can use the title ‘paramedic’.

Today’s correspondent asks

… with the advent of registration, are WA paramedics allowed to witness a statutory declaration?

I suspect not, given that the 2005 Act quite clearly lists the professions permitted to witness a document, but some of my colleagues think otherwise.

As far as I can tell, signing a stat dec when you are not permitted to could result in a prison term?

It’s true that claiming to witness a statutory declaration when one is not entitled to do so is an offence punishable by up to 12 months’ imprisonment Oaths, Affidavits and Statutory Declarations Act 2005 (WA) s 17.

It is also true that the ‘the 2005 Act quite clearly lists the professions permitted to witness a document.  What is not clear is what version of the Act my correspondent is looking at as the current version of the Act (with an effective start date of 1 December 2018, that is the date that paramedic registration came into force) lists, in Schedule 2 ‘Authorised witnesses for statutory declarations’, cl 28A:

A person registered under the Health Practitioner Regulation National Law (Western Australia) in the paramedicine profession.

It follows that indeed a paramedic can take the declaration required by the Oaths, Affidavits and Statutory Declarations Act 2005 (WA).

For related posts see:

• Can members of Victoria’s emergency service administer oaths and declarations? (March 19, 2019); and
• Paramedics making declarations for employment purposes in Victoria (January 30, 2016).

At a recent Brigade meeting questions were asked about RFS members turning out in their own cars, and where they stand.   My correspondent says:

We are aware that there is no special provisions that permit them to break the road rules, but would they (personally) and their car (property) be covered by insurance from the time they get the call (I.e. they leave their home).

Would this be covered in any of your existing articles (I have read most, but may have missed it), or is this a question that would need to be asked of the Service?

Another questionable component is “if the road is closed to the public at a certain point (as a result of the bushfire) and the staging area / assembly point is up that road – would there be any legal issues with the member using their private car to get from the road closed point and the assembly point?”.

Compensation for Rural Fire Service volunteers is governed by the Workers Compensation (Bush Fire, Emergency and Rescue Services) Act 1987 (NSW).  This Act applies if a volunteer firefighter is injured during a ‘relevant journey’ (s 7).   The Act also provides for compensation for damage to the personal property of a firefighter during a relevant journey or whilst fighting a fire (s 12; in particular s 12(2)(c)).

A journey is a relevant journey (s 9) if:

(a) it is a journey between the place of abode or place of employment of the fire fighter, or place from which the fire fighter was called, and a bush fire, and

(b) it is made exclusively and genuinely for the purpose of engaging in fighting a bush fire.

The answer to the first question is that NSW RFS firefighters are covered by the provisions of the Workers Compensation (Bush Fire, Emergency and Rescue Services) Act 1987 (NSW) from the time they get the call and head off either to the shed or to the fire.

As for the second question I cannot see any legal issues arising from a firefighter ‘using their private car to get from the road closed point and the assembly point’.  To a certain extent that may depend on how the road is closed; if the road closure point is staffed by a police officer and the police officer directs the fire fighter not to pass the road closure point then it may be an offence to ignore that direction.  Short of that I can’t imagine what legal issues are thought might arise.

Today’s question comes from a Queensland paramedic who asks:

…  if it is possible that someone is found civilly negligent for failing to apply the doctrine of necessity?

I am employed by a company that provides mine sites with paramedics (QLD), and I was discussing a hypothetical scenario with colleges in which we have a patient that urgently needs to go to hospital (a Myocardial Infarction was the hypothetical complaint) but QAS advised that there would be a significant delay in attending the patient. My colleague’s position was that it would be illegal to transport the patient to hospital ourselves according the Ambulance Service Act 1991 (QLD) section 43, and that they would remain with the patient on site, despite the significant delay in QAS providing transport, until QAS could conduct the transport. I disagree that that is the correct interpretation of that section of the Act, however, assuming that it was the correct interpretation, I believe the doctrine of necessity would apply, and I would transport the patient anyway. I also believe that following the law so strictly, even when it would clearly harm the patient is unethical, if not negligent.

I agree with my correspondent.

First the Ambulance Service Act 1991 (QLD) s 43 says (emphasis added):

A person, other than the chief executive or the commissioner, 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.

That says that a person is not allowed to claim that they provide ambulance transport.  It stops marketing of private ambulance services (see also s 48 ‘Restricted use of words ‘Ambulance Service’’) but it does not say that a person cannot transport another person to hospital.  If that is what meant, then it would be an offence everytime someone drove a family member, or work colleague, to hospital rather than calling an ambulance.

I agree with my correspondent that the view that driving the person to hospital would be contrary to s 43 is not a ‘correct interpretation of that section of the Act’.  It’s then hard to assume, for the sake of the argument, that this is the correct interpretation, but I will do my best.  Let me assume that the on-site paramedic is provided by a private company that has a contract to provide on-site health services to the mine site.  Let me also assume that it has a Ministerial approval to operate but that approval says that it is limited to operating on the mine site.  One would have to ask why the approval was in those terms?  Does the Minister really want to ensure that a registered paramedic is not to take a person in urgent need of medical care to hospital in any circumstances, or is it really intended to ensure that the private company does not start offering services away from the mine site, eg in the nearby town?  It’s hard to know both because we are, at this stage, simply imagining a prohibition and because, even if there was a real approval it will set out its terms but not the reasoning behind them.  So for the sake of the argument I’ll assume that there is an approval to operate an ambulance service only on the area of the mine site and that the standard on-site procedures that are both documented and rehearsed is that if the patient needs transport to hospital, QAS are called and they attend the site, receive a hand over from the on-site paramedics and then transport to the public hospital.

With that assumption we can now imagine the patient that urgently needs to go to hospital with an acute myocardial infarction.  The onsite paramedics have an ambulance capable of making the journey and there is no conflicting demand that would stop them (eg the mine can continue to operate even if they leave the site because there is another crew on site to continue to meet the operational requirements of the operator).  A call is made to triple zero and they are advised that there will be a significant delay in the QAS response, a delay that is so long that there is no doubt that if the on-site paramedics drive to hospital they will get the patient to hospital before QAS would be expected to be on the mine site.  Could the paramedic company be liable to the patient if the patient suffers an adverse outcome that would, on the balance of probabilities, have been avoided if they refuse to transport rather than wait for QAS?

That’s a really difficult question.  Generally speaking, you cannot be under a duty to breach the law.  If we think of issues of consent to treatment it is sometimes argued that a paramedic (or doctor) has to treat a patient because of their ‘duty of care’ but the duty to take reasonable care of your patient cannot extend to assaulting them or subjecting them to false imprisonment.  Nor can a duty to come to the aid of a patient justify driving a vehicle in a way that is negligent or poses a subjective danger to the public.  Part of the reason why that is the case is that for necessity to apply the response has to be proportionate to the risk.  The risk to one person does not justify exposing others to death or injury.  Overriding a person’s autonomy because of a risk of physical injury is disproportionate if respect for autonomy and the right of people to make their own choices is the pre-eminent interest that the law wants to protect, rather than life per se.   There is also however a demand that people do obey the law.  Necessity is like asking for forgiveness rather than permission so before the fact one can say ‘don’t do that it’s against the law’ but after the event one can say ‘ok we’ll forgive that this time as the benefit outweighed the harm done by the breach’.    Saying that one may be forgiven is not the same as saying that one has a duty to break the law.

In Stuart v Kirkland-Veenstra [2009] HCA 15 the widow of Mr Veenstra sued Victoria Police arguing that the police officers who observed her husband sitting in a car with a pipe from the exhaust into the car, should have detained him under the Mental Health Act 1986 (Vic). In the High Court the issue came down to whether or not the police had the requisite power.  The police officers had determined that Mr Veenstra was not displaying the symptoms of mental illness so they did not have any power and did not detain him.  Whilst the police may have owed a duty to exercise reasonable care that duty could only be a duty to do what they were empowered to do. In the High Court of Australia Gummow, Hayne and Heydon JJ said (at [100]) ‘There can be no duty to act in a particular way unless there is authority to do so’.  In our hypothetical there is a limitation on the paramedics field of operations.  In that scenario, arguably, there could be no duty to transport the patient to hospital as the prohibition removes any other authority they may have had.  In simple terms a private company or citizen does not need authority to drive someone, particularly someone who consents to hospital but where there is a prohibition that general authority to do as one pleases is removed.

There is another difference.  Mr Veenstra did not look for police assistance, nor was he asking police to assist him. In our hypothetical scenario registered health professionals are providing care to a person who is both in need of care and is looking to the paramedics to provide professional care, albeit within the limits permitted by law.  That close relationship must give rise to a duty of care even if it is yet unclear what that duty requires.

If we accept that there is a duty of care then the response to that duty requires consideration of multiple issues.  In Wyong Shire v Shirt [1980] HCA 12, Mason J of the High Court said (at [14]):

In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant’s position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man’s response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant’s position.

That formula has been largely restated in legislation.  In Queensland, the Civil Liability Act 2003 (Qld) s 9 says:

(1) A person does not breach a duty to take precautions against a risk of harm unless—

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

(b) the risk was not insignificant; and

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

(2) In deciding whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (among other relevant things)—

(a) the probability that the harm would occur if care were not taken;

(b) the likely seriousness of the harm;

(c) the burden of taking precautions to avoid the risk of harm;

(d) the social utility of the activity that creates the risk of harm.

In our case we can assume that the risk of adverse consequences for a patient with an acute myocardial infarction no receiving timely in-hospital care is foreseeable and not-insignificant (ie s 1(a) and (b) are established).  Would the reasonable paramedic transport the person to hospital or wait for QAS?  That requires consideration of (2)(a) to (d).  One might infer that there is (or was) a high probability that the adverse outcome would occur and that it would be serious. There is little burden if, as I’ve assumed, the paramedics have a vehicle and the skills, and the mine can continue to operate in their absence.  They are not creating the risk of the heart attack but there is little social utility in staying on site (there might be if their departure meant the mine had to close) and little social disutility in transporting the patient.  What the Civil Liability Act doesn’t mention, and Mason J did was the issue of the ‘any other conflicting responsibilities which the defendant may have’.  One of those responsibilities is a responsibility to honour the limitation in their licence or approval.  Another way to put that is that a court would be reluctant to impose a duty to act if that led to incoherence in the law, ie putting two laws into conflict.

At the end of the day a lawyer can hide behind the generic legal answer – the obligation upon the paramedic is to act as the reasonable paramedic in all the circumstances.  That is the answer but it is impossible to answer in the abstract.

My opinion on this interesting and tricky question is that necessity is a defence – if you like an act of forgiveness – it cannot give rise to a duty to act contrary to law.  If there really is an in-force prohibition on, in this scenario, transport off-site then there can’t be a legal (as opposed to a moral) duty to act contrary to that prohibition.    What a court would not doubt consider is exactly how is the prohibition phrased and why is it there and they may well look to find that it did not apply in the circumstances in which case a duty could be established that would not set the law up in internal conflict.

I could certainly make an argument that just as anyone can drive someone to hospital if that is required so could any paramedic and any purported prohibition is directed to not operating a fee for service private ambulance company rather than treating the very people who the paramedic is engaged to treat and whilst the ‘normal’ practice may be to wait for QAS but it was not intended to do that where that put’s the patient’s life at risk.  How that argument would stand up would depend to a large extent on how the prohibition was worded, and here again I note my agreement with my correspondent that I don’t think the Ambulance Service Act 1991 (Qld) s 43 is such a prohibition.

However the question I was asked was ‘if it is possible that someone is found civilly negligent for failing to apply the doctrine of necessity?’.  To answer the question directly I think the answer to that question is ‘no’; one cannot be duty bound to break the law, even if one can be forgiven for doing so.

A registered AHPRA paramedic in WA was:

… attending an elderly patient who has fallen at home. Not compliant with medications. Has had a couple of alcoholic drinks. Patients partner did not feel safe keeping him home due to regular falls and increased recent aggressive behaviour.

Not compliant at answering questions and makes threats to harm the attending paramedic crew.

Does not fall under mental health. Patient was refusing transport but the paramedic crew could not properly assess the patient due to their non-compliance. What grounds do we have to take the patient to an emergency department? Under duty of care is it ok to engage the police to force the patient to be transferred for further care and management against their will?

I think I have answered this question in respect of New South Wales – see Assessing capacity when the patient won’t cooperate (August 24, 2018).

If the patient is competent and refuses treatment, and the paramedic does not think the patient is mentally ill within the meaning of the Mental Health Act 2014 (WA) then that is the end of the matter in terms of compelling the person to go to hospital.   The police have no power to detain a competent person who is not mentally ill, to undergo treatment either.  ‘[E]xcept in cases of emergency or necessity, all medical treatment is preceded by the patient’s choice to undergo it’ (Rogers v Whitaker [1992] HCA 58, [14]).  The sort of emergency or necessity contemplated there is where there is ‘a necessity to act when it is not practicable to communicate with the assisted person’ (In Re F [1990] 2 AC 1) not just where it is a matter of convenience (Murray v McMurchy [1949] 2 DLR 442)).

Certainly, if there was concern for the person or his partner it’s ok to ring police but they cannot ‘force the patient to be transferred for further care and management against their will’ any more than paramedics can. Police could only intervene if there were other grounds to take action eg if they made or obtained a Family Violence Restraining Order (Restraining Orders Act 1997 (WA)) or took the person into custody for an offence or to protect them (Protective Custody Act 2000 (WA) s 6).

When today’s correspondent

… was first employed it was not condition of my employment that I have a first aid certificate.  Later my employer sent me do first aid on their time and at their cost – I was then also paid a first aid allowance.  New employees are now required to have a first aid certificate which they have to keep current at their own cost and in their own time.

Management have appointed first aid offices, one in each main employment area with only these paid the first aid allowance.  My first aid certificate is now out of date and they are insisting that I go and get a new one on my own time but they will pay the cost – I have said “no” as I am not a first aid officer and it was not part of my employment contract to have a first aid certificate (which they admit is the case). But they are insisting I go and do the course, but it has to be in my own time and they will reimburse the course cost.

Now I have also stated that if a situation arose that required first aid, I would not be doing it but then calling for the first aid officer as they were getting paid to do it not me. Yes, I would attend to life threatening matters not just the splinters, small cuts and the like matters not requiring emergency or ambulance response.

How do I stand with all this?

This is largely an industrial issue and a question of what your employer reasonably requires.  Many people might be pleased to have their employer pay for a first aid certificate as that is a useful skill anywhere.   The employer may think they are doing you a favour.

The general rule is that there is no duty to come to the assistance of a stranger but at a work place, colleagues and visitors to the workplace are not strangers so there has to be a duty to do something if someone needs help, even if that duty is no more than to activate the workplace first aid procedures – ie call the nominated first aid officer.

Some may think there are moral issues with your position but without knowing details of the work or the employment contract, I cannot see any legal ones.

Today’s correspondent is a ‘medical student in Queensland’ who posits

… a scenario that regards the legislative protections in place for specialist doctors who are bystanders in a hospital environment.

Imagine the following (perhaps not so hypothetical) scenario – a patient in a regional hospital without a vascular surgery service is taken to the theatre for a routine operation by a general surgeon (i.e. for an appendectomy). During the course of the operation, a major blood vessel is damaged, leading to a catastrophic bleed that threatens the patient’s life. There are no specialist doctors employed by the regional hospital which can be called to help in this situation. One of the theatre staff is friends with a vascular surgeon who by chance is currently vacationing in the area (a 5 minute drive from the hospital, having a surf at the local beaches), and calls said vascular surgeon to ask for advice. Despite the advice being applied by the general surgeon in theatre, the catastrophic bleeding continues. Note that the vascular surgeon has no relationship with the regional hospital or the patient- they have never been an employee the regional hospital or its parent hospital and health district, and have never before seen this patient.

1)         Does the vascular surgeon now owe a duty of care to the catastrophically bleeding patient on the operating table?

2)         Does good Samaritan legislation cover the vascular surgeon should he decide to rush to the operating theatre and personally attempt to control the bleeding?

3)         Would the answer to the above question change if this happened in a state other than QLD? or in the ACT or the NT?

I ask this because I was under the impression most good Samaritan legislation only covers people in the pre-hospital environment, and while this would be a rate situation I personally have heard of this happening at a hospital I was placed at.

Whenever someone tells me they are a student I do hope I’m not answering an assignment question, but I’ll assume that I am not (but if I am, do make sure that the answers are referenced appropriately).

The first thing that springs to my mind with questions like this is why is it assumed that he practitioner in question is going to be negligent, because the issue can only arise if there is a poor outcome and alleged negligence?  Second, if one has an impression of the law the best solution is to go to the law and read it.  None of the ‘good Samaritan’ legislation (and yes, I know it’s not actually called ‘The Good Samaritan Act’ in any state or territory but the term is used in the relevant legislation – see https://emergencylaw.wordpress.com/civil-liability-legislation-in-each-state/) is limited to the ‘pre-hospital environment’.

Giving advice to a colleague on the phone would not give rise to a duty of care to the patient.  It would certainly not give rise to a duty to attend the hospital and actually become involved in the patient care.  If it did no doctor could ever seek advice from a colleague. The doctor treating the patient is responsible for his or her decisions, whether those decisions are based on the advice of others or not.

In this context the relevant legislation would be the Law Reform Act 1995 (Qld) s 16 which says:

Liability at law shall not attach to a medical practitioner, nurse or other person prescribed under a regulation in respect of an act done or omitted in the course of rendering medical care, aid or assistance to an injured person in circumstances of emergency—

(a) at or near the scene of the incident or other occurrence constituting the emergency; or

(b) while the injured person is being transported from the scene of the incident or other occurrence constituting the emergency to a hospital or other place at which adequate medical care is available;

if—

(c) the act is done or omitted in good faith and without gross negligence; and

(d) the services are performed without fee or reward or expectation of fee or reward.

The ‘scene of the incident or other occurrence constituting the emergency’ is the hospital itself as that is the place where the patient is and where the circumstances are beyond the capacity of the local staff.  That hospital, on the scenario given, is not a ‘place at which adequate medical care is available’.

Provided the good doctor is not expecting to get paid or receive any other reward, that is he or she is simply acting out of humanitarian need, there is no reason that this Act would not apply.

In the ACT the Civil Law (Wrongs) Act 2002 (ACT) s 5(1) says;

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.

A good samaritan is (s 5(4)):

(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.

Section 5(4)(b) clearly applies to the situation where the doctor give advice. There is nothing on its face to say s 5(4)(a) would not include the doctor who travels to the hospital where he or she has no pre-existing relationship to help save a life provided that he or she is not expecting to be paid.

In the Northern Territory the Personal Injuries (Liabilities And Damages) Act 2003 (NT) s 8 says:

(1) A good Samaritan does not incur personal civil liability for a personal injury caused by an act done in good faith and without recklessness while giving emergency assistance to a person.

(2) A good Samaritan with medical qualifications does not incur personal civil liability for advice, given in good faith and without recklessness, about the treatment of a person being given emergency medical assistance…

(4)     In this section:

“emergency assistance” means:

(a)     emergency medical assistance; or

(b)     any other form of assistance to a person whose life or safety is endangered in a situation of emergency.

“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 in need of emergency assistance; or

(b)     a person with medical qualifications who, acting without expectation of payment or other consideration, gives advice about the treatment of a person who is apparently in need of emergency medical assistance…

The doctor who gives advice is a good Samaritan under paragraph (b) of the definition in s 8(4).  There is nothing on its face to say that a doctor who assists a colleague at a hospital where there is no pre-existing relationship and no expectation of getting paid is not also a good Samaritan under paragraph (a) of the definition in s 8(4). There is nothing in the Act to limit it to the out of hospital environment.  In the scenario given if the local staff are unable to cope then there is, in the hospital, a need for ‘emergency medical assistance’ and if the visiting doctor is able and willing to provide that then I see no reason why he or she does not fall within the definition of a ‘good Samaritan’.

Without going through them all I can think of no example of good Samaritan legislation that would lead to a different result in any of the other jurisdictions.

My answers to the questions are:

1)         Does the vascular surgeon now owe a duty of care to the catastrophically bleeding patient on the operating table?

No.

2)         Does good Samaritan legislation cover the vascular surgeon should he decide to rush to the operating theatre and personally attempt to control the bleeding?

Yes, provided he or she does not expect to get paid.

3)         Would the answer to the above question change if this happened in a state other than QLD? or in the ACT or the NT?

No.