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Discussion on the law that applies to or affects Australia's emergency services and emergency management, by Michael Eburn, PhD and Barrister.
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The NSW SES is the combat agency for floods and storms – but what is a flood? or a storm?

6 October, 2015 - 12:28

This question comes from a NSW emergency management professional:

A colleague and I were having a nonsensical discussion on a water main break because the SES turned up at one. So we played semantics with the different ways the flow of water could be construed as a flood. Pretty straight forward that riverine and flash flooding gives the SES the Combat Agency role in NSW for ‘Flood’. Tsunami is included because it is specifically designated.

Now here is the issue. It is also generally accepted that SES issue warnings and response for Dam Failures. In a dam failure, the water coursing down could be considered a flood in a debate (perhaps). Prescribed dams have plans and I have not yet dived into combat agency or control agency mentions there. But in legislation, no real mention on the subject that I can find nor a specific mention in State EMPLAN.

But what of a water main break where water, and lots of it, is freely flowing down streets and through the houses? Under stand it is the water authorities problem but could it be considered a flood?

The State Emergency Service Act 1989 (NSW) s 8 says, amongst other things:

The State Emergency Service has the following functions:

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

(a) to act as the combat agency for dealing with floods (including the establishment of flood warning systems) and to co-ordinate the evacuation and welfare of affected communities,

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

(d) as directed by the State Emergency Operations Controller, to deal with an emergency where no other agency has lawful authority to assume command of the emergency operation …

(f) to assist the State Emergency Operations Controller to carry out emergency management functions relating to the prevention of, preparation for and response to… emergencies in accordance with the State Emergency and Rescue Management Act 1989,

(g) to assist, at their request, members of the NSW Police Force, Fire and Rescue NSW, the NSW Rural Fire Service or the Ambulance Service of NSW in dealing with any incident or emergency…

If the SES is going to be the combat agency for floods and storms then one would imagine that what is a flood or storm is defined; but those terms are not defined.

Flood

Following the Queensland floods of 2011 an inquiry into flood insurance determined that there were problems with inconsistent definitions.  The result was that flood was defined for the purpose of insurance law (Insurance Contracts Act 1984 (Cth) s 37B; Insurance Contracts Regulations 1985 (Cth) r 29D).   For the purposes of an insurance contract, flood means:

… the covering of normally dry land by water that has escaped or been released from the normal confines of any of the following:

(a) a lake (whether or not it has been altered or modified);

(b) a river (whether or not it has been altered or modified);

(c) a creek (whether or not it has been altered or modified);

(d) another natural watercourse (whether or not it has been altered or modified);

(e) a reservoir;

(f) a canal;

(g) a dam.

So water flowing from a dam, whether it’s a dam break or a controlled release is a flood, water from a burst water main is not – at least not on your household insurance.   That does not mean a person with household insurance is not covered – they are.  A contract for household insurance must provide cover for ‘bursting, leaking, discharging or overflowing of fixed apparatus, fixed tanks or fixed pipes used to hold or carry liquid of any kind’ (Insurance Contracts Regulations 1985 (Cth) r 10).   A person that has household insurance is covered for damage caused by water escaping from the main, but only if they have flood insurance are they insured for water coming from the dam.  But that is about insurance law and is a guide, but is not the definition for the SES Act.

The Water Management Act 2000 (NSW) refers to ‘flood work’ but does not define ‘flood’.   The Water Act 1912 (NSW) s 166C also refers to ‘flood’ but gives no definition.  Neither does the Water Act 2007 (Cth).

For the Local Government Act 1993 (NSW) ‘flooded’ means ‘inundated by waters derived from the runoff of rainfall on land’ (s 3 and Dictionary).  That is a much more limited definition than the definition of ‘flood’ in the Insurance Contracts Act.

The Environmental Planning and Assessment Act 1979 (NSW) which is the Act that governs land use planning and one would hope includes provisions to limit development on flood prone land has no definition of ‘flood’.

The National Arrangements for Flood Forecasting and Warning refers to ‘types of floods’ ‘caused by heavy rainfall, although extreme tides, storm tide, tsunami, snow melt or dam break’ also cause flooding as does ‘coastal flooding as a result of sea level rise’.  The National Arrangements are concerned with ‘flooding as a result of heavy rainfall, which generally falls into the two broad categories, flash floods and riverine floods’ (see [1.2]).

In the absence of a legislative definition, lawyers start with a dictionary, traditionally the Oxford but in Australia the Macquarie Dictionary is often the dictionary of choice.  The Macquarie Dictionary (online) (relevantly) defines flood as ‘a great flowing or overflowing of water, especially over land not usually submerged’.  On that definition water from a dam or a burst water main are both a flood.

Given the variety of definitions it may be up to the Commissioner to determine what the SES functions are, and to do so in consultation with the State Emergency Management Committee.  The NSW SES website gives the following as examples of floods:

  • Rivers in Flood
  • Flash Floods
  • Dam Failure
  • Storm Surge
  • Tsunami

The NSW State Flood Plan – a sub plan of the State Emergency Management Plan, defines flood as:

Relatively high water level which overtops the natural or artificial banks in any part of a stream, river, estuary, lake or dam, and/or local overland flooding associated with drainage before entering a watercourse, and/or coastal inundation resulting from super-elevated sea levels and/or waves overtopping coastline defences.

That could include water escaping from a burst main as it would be ‘local overland flooding associated with drainage before entering a watercourse’ because the definition doesn’t refer to the source of the water but it’s destination – before entering a watercourse.

Storm

A similar definitional problem arises with ‘storms’.   When I was a member of an operational SES unit we would debate whether a ‘job’ was ours – did the tree just fall over, was their wind and if so a lot of wind?  Did it rain, if so how much?  Was there, or was there not, a storm?  Again there are no binding definitions of what is a ‘storm’.    The Bureau of Meteorology does not define ‘storm’ but it does issues severe thunderstorm warnings.  They say (‘About Severe Thunderstorms’):

Severe Thunderstorms are defined as those that produce any of the following:

  • Hailstones with a diameter of 2cm (the size of a $2 coin) or more
  • Wind gusts of 90km/h or greater
  • Flash flooding
  • Tornadoes

The SES is the combat agency for ‘storms’ not ‘thunderstorms’ and not ‘severe thunderstorms’ so that definition can’t be applicable.   The NSW State Storm Plan doesn’t define ‘storm’!    It does say, however, (at [6.1.3]):

Response operations will begin:

On receipt of an Australian Government Bureau of Meteorology:

  • Severe Thunderstorm Warning
  • Severe Weather Warning for hail, flash flooding, damaging surf
  • Tropical Cyclone Watch
  • Tropical Cyclone Warning
  • Sheep Graziers Warning

Which would suggest that by ‘storm’ the plan is limited to those severe events.  [6.1.3] goes onto say, however, that response operations will also begin ‘following impact of a storm not covered by a formal warning’. This again begs the question of ‘what is a storm?’  The NSW SES website lists the following as examples of storms:

  • Thunderstorms
  • Tornadoes
  • Tropical Cyclones and Ex-Tropical Cyclones
  • Mid-Latitude Low-Pressure Systems (including East Coast Lows)
  • Low Pressure Troughs
  • Cold Fronts and Southerly Busters
  • Cold Outbreaks

The Macquarie Dictionary defines storm as:

  1. a disturbance of the normal condition of the atmosphere, manifesting itself by winds of unusual force or direction, often accompanied by rain, snow, hail, thunder and lightning, or flying sand or dust.
  2. a heavy fall of rain, snow, or hail, or a violent outbreak of thunder and lightning, unaccompanied by strong wind.
  3. Meteorology a wind of Beaufort scale force 11, i.e., one with average wind speed of 56 to 63 knots, or 103 to 116 km/h.

So if a tree falls on a house in a mild wind or after some rain, is it storm damage?  There is no clear answer to that.

Does it matter?

One wonders if it really matters.  If we assume there is water flowing from a burst main that is threatening or doing damage to homes and businesses would we expect the SES to ‘turn out’ or refuse because it’s not a flood?

I imagine that most SES units being made up of volunteers who join to do the sort of work the SES does, and who want to help their community are willing to turn out regardless of the precise definition of flood or storm.  Further one of the functions of the SES is ‘as directed by the State Emergency Operations Controller, to deal with an emergency where no other agency has lawful authority to assume command of the emergency operation’.  The State Emergency Operations Controller is the Commissioner of Police (State Emergency and Rescue Management Act 1989 (NSW) s 18).  If the SES are directed to take charge of the response then they are in charge.

If the SES are not so directed, so for example the Local Emergency Operations Controller (State Emergency and Rescue Management Act 1989 (NSW) s 30) is taking charge then he or she could call on the SES to assist (State Emergency Service Act 1989 (NSW) ss 8(1)(f) and (g)).

Conclusion

There is no clear legislative definition of flood or storm.  For NSW SES the definitions have to be the ones in the relevant State sub-plan.  The definition of flood could include water from a water main.  There is no definition of ‘storm’.

I can’t however see that it matters.  Volunteers are probably willing to turn out without quibbling too much about definitions and in doing so they help build the resilience of the community that they are part of.  In modern thinking of ‘all hazards, all agency’ response whether the SES are responding as the combat agency or to assist another agency or to assist the water authority shouldn’t make too much of a difference.  Presumably the agency staff can work together to coordinate the response and if necessary identify who is to be the incident controller.  If they can’t then the Local Emergency Operations Controller is ‘responsible for controlling’ the response (State Emergency and Rescue Management Act 1989 (NSW) s 31).


Categories: Researchers

FRNSW and what does it mean to ‘proceed with all speed’?

6 October, 2015 - 08:46

A firefighter with Fire and Rescue NSW asks:

Section 11 of the Fire Brigades Act relates to responses & states that FRNSW must “…despite anything to the contrary in any Act, proceed with all speed to the fire…” I am at a permanently manned station & have 2 Retained stations within 10-12km. When calls are in the adjoining stations area they are responded because ESCAD (our response system) recognizes that they are closer. The permanently manned appliance would be quicker even though it is further distance from the incident address.

Is FRNSW complying with the Act when they respond a closer resource distance wise rather than the quickest timewise?

The answer is ‘yes, FRNSW are complying with their statutory obligations’.

Section 11 of the Fire Brigades Act 1989 (NSW) says:

When there is an alarm of fire, a fire brigade must, despite anything to the contrary in any Act, proceed with all speed to the fire and try by all possible means to extinguish it and save any lives and property that are in danger.

In an earlier post (The inter-relationship between emergency services and other legislation (September 24, 2015)) I said:

This section can be traced back to the Fire Brigades Act 1884 (NSW). The reference to ‘all possible speed’ back in 1884 may or may not have had reference to such things as ‘speed limits’. Today however, one could not read the Act as authorizing fire brigades to operate without reference to the road rules in order to ‘proceed with all speed’. For example, it may be quicker to proceed now rather than wait for a sober and competent driver but that would not justify driving unlicensed, whilst intoxicated or at a speed dangerous to the public.

Some statutory provisions impose a ‘duty’ on a statutory authority.  Sometimes a person who suffers a loss can sue for ‘breach of statutory duty’ but only if it is clear from the Act that the parliament intended to give individuals a right to a private remedy. In other cases the only remedy may be an action to require an authority to perform its duty under the Act.  Sometimes the provision is just a general statement setting out the intended direction of the agency.  Section 11 falls within that last category.

In Bennet and Wood v Orange City Council (1967) 67 SR(NSW) 426 the plaintiffs sued the Council for negligence – the council, in turn, joined the Commissioner for NSW Fire Brigades alleging that they were liable for failing to proceed with ‘all speed’ as required by the then Fire Brigades Act 1909 (NSW) s 28.    The court held that the section gave rise to no private right of action, that is it was not intended that anyone could sue for failing to comply with the section – the headnote (a summary but not a part of the court’s reasons) says that the effect of the case was to hold that section 28 was ‘merely descriptive of the obligations of the Board…’ (p 426).     In essence s 28 (and now s 11) are there to remind the Commissioner what the fire brigades are supposed to do and what his job is, but it doesn’t give rise to an actual legally enforceable obligation.

Even if there was an obligation the section can’t be read literally.  If it was all fire appliances would be racing cars and fire appliances would run over pedestrians on their way to fires because stopping either to let them cross or to attend their injuries would reduce the speed of the response.  To procced with ‘all speed’ has to be read as with all practicable or reasonable speed and that has to take into account the allocation of resources – ensuring that coverage continues across the Fire District, the traffic at a given time of day, keeping a separation so appliances don’t run into each other when proceeding to a fire etc.

If the brigades could not despatch a closer retained crew, even though they may take longer than a permanent crew that is already ‘on station’ but further away then there would be no point in keeping a retained station.  Alternatively the permanent crew would be sent to every fire and retained firefighters then called up to provide ongoing coverage – a rather unsatisfying role for the retained firefighters.    Rather the reference to ‘all speed’ has to be read as taking into account the time it takes for the retained firefighters to get to the station and then turn out.   That it takes time for that to happen does not mean they are not responding with all ‘reasonable’ speed for that particular station.

Conclusion

Section 11 of the Fire Brigades Act 1989 (NSW) is descriptive and does not impose any obligation that can be enforced by a person who is aggrieved that the brigades did not respond quickly enough.  The reference to ‘all speed’ has to be read as ‘all reasonable speed’ and that has to take into account all the circumstances including that the area where the fire occurred is protected by a retained rather than permanent fire crew.

FRNSW is meeting its obligations if it chooses to respond a’ closer resource distance wise rather than the quickest timewise’.


Categories: Researchers

Tasmania – Alcohol affected patient refuses treatment and is not guilty of assaulting police Part 2

5 October, 2015 - 20:13

The reason for this part 2 is that I have now been provided with a copy of the Magistrate’s reasons which can be found here: Bonde v Morrison.

As we know the accused was found guilty of assaulting the paramedic.   When originally approached by paramedics he had refused their aid and they had left him. Later he appeared to be unconscious and his friends called an ambulance. This time Mr Morrison agreed to be transported by rejected any physical contact. When he appeared to lapse into unconsciousness, the paramedic did a ‘eyelash flick’ to try to determine if he was in fact unconscious. He wasn’t and he reacted by kicking the paramedic and threatening him. Mr Morrison was then restrained by the treating paramedic and a friend that was accompanying him in the ambulance.

The magistrate found that Mr Morrison’s actions were voluntary and intentional and the paramedic’s actions were justified by his ‘duty’ (which, with respect, I would suggest is not the law. The real question was whether it feel within the doctrine of necessity ie it was not possible to communicate and he did only that which was reasonable). In any event the Magistrate also found that the actions by Mr Morrison were not in self-defence but ‘retaliating in anger’.

With respect to the police and the hospital the issue was more complex. The doctor said he decided to sedate the patient because of his ‘duty of care’ to other staff and to the patient.   He said that it was Mr Morrison’s conduct at the hospital that led to the decision to administer sedation. The nursing notes did not however match the timing of the doctor’s evidence.   The evidence supported the conclusion that Mr Morrison was calm in hospital until an attempt to administer the drugs was made, and that the doctor’s decision was based on the report he had received from the ambulance en route, and not from any assessment he made of the patient.

At [34]-[36] the Magistrate said:

The evidence discussed above strongly supports the conclusion that the decision was made administer sedation as a pre-emptive response to the history reported by the ambulance officers when they contacted the hospital to request security assistance. It supports the conclusion that the defendant was calm, until an attempt was made within minutes of him entering the hospital to inject him with a sedative drug. There is no evidence that he was given any explanation of that intended action. I reject the evidence of Dr Tyrrell who says that he made the decision to administer sedation because he observed the defendant acting aggressively and violently towards staff. I am satisfied that the defendant became aggressive and violent in the Emergency Department only after he realised that an attempt was to be made to inject him with an unknown drug, against his will…

There is no doubt that he expressed aggressively and loudly that he did not want the injection. He was then facing a situation in which he was being forcibly restrained and injected with a drug without his consent and without information as to the identify the drug. There is no evidence that he was provided with any information as to the purpose, nature or risks of the injection. In any event, he was entitled to refuse treatment. The injection into his body of an unknown drug was a gross violation of his personal security and integrity and, viewed objectively, justified the use of commensurate force in self-defence. The fact that several persons were attempting to restrain him for the purpose of leaving him vulnerable to the injection increased the level of force that would be considered reasonable in the circumstances.

We can see that the critical issue here was consent. Mr Morrison may have behaved violently and unreasonably in the ambulance but once in hospital he was calm.   A doctor’s duty and authority to treat a person depends on either consent or some other lawful authority.   Mr Morrison didn’t consent to the administration of the drugs because he was never asked. The doctor claimed to have seen Mr Morrison being violent but that was not the evidence of others including the nursing records. The doctor was taking pre-emptive action but in that case the decision was not a treatment taken in Mr Morrison’s best interests – it was not a medical treatment decision. The decision may well have been different if Mr Morrison was being violent in circumstances where the staff could not communicate with him or if he was not competent (as discussed in Part 1). But that was not the situation here.

Had Mr Morrison been asked he would, no doubt, have refused the sedation but given he was being calm, he presumably did not need it. As noted in Part 1 ‘all medical treatment is preceded by the patient’s choice to undergo it’ (emphasis added).   If it was possible to communicate with Mr Morrison the doctrine of necessity could not apply to authorise treatment without consent.

Remember too:

The fundamental principle, plain and incontestable, is that every person’s body is inviolate. It has long been established that any touching of another person, however slight, may amount to a battery

It doesn’t matter whether the persons are trying to help or harm.

Mr Morrison’s actions were, in the Magistrate’s opinion, were reasonable because he found himself being restrained – assaulted – by multiple people seeking to inject him with a drug where he didn’t know what it was or what it was for and he had made it clear he didn’t want it.  Many of us would think that if it was doctors, nurses and police that were trying to restrain us we should comply and that is a very ‘safe’ option, but the law says we don’t have to – you don’t have to stop and answer police questions, you don’t have to go with police when they ask and you don’t have to accept or receive treatment offered by medical staff and the law recognises that primacy.  Honouring that – allowing people to make their own decisions if they can do so – is a fundamental legal tenant and more important than saving lives hence the right of people to refuse treatment even if that refusal will kill them.  And the right of people to resist the application of unlawful force.


Categories: Researchers

Tasmania – Alcohol affected patient refuses treatment and is not guilty of assaulting police

5 October, 2015 - 17:46

A number of people have asked me to comment on this story – Caroline Tang, ‘Drunk punched policeman in LGH in self-defence: magistrate’ The Examiner (Online) 2 October 2015.   The gist of the story is that the accused had consumed a considerable amount of alcohol during the course of an evening. At some time he had been knocked unconscious and paramedics were called.

  • Whilst being transported to hospital he kicked the paramedic in the face and threatened to kill him and his family. He also threatened to charge the paramedic with assault if he touched him.
  • At 4.13am he arrived at hospital. At 4.50am he had a blood alcohol concentration of 0.2 or 4 times the legal driving limit.   The treating doctor ‘made the decision to sedate Morrison because he had a ‘‘duty of care’’ towards him and staff, while Morrison’s erratic conduct and evidence of head injuries led him to believe he might have had a bleed on the brain or skull fracture.’
  • The ‘previously calm Morrison had expressed aggressively and loudly that he did not want an injection when he saw hospital staff approach him with a needle’.
  • ‘Several persons’ attempted to restrain him; presumably one of those persons was the police officer who was struck ‘twice to the face’.
  • The Magistrate found that Mr Morrison ‘acted in lawful self-defence when he punched and swore at a policeman who was helping to restrain him, because Launceston General Hospital staff injected him three times with a sedative after he exercised his right to refuse treatment.’
  • Mr Morrison was convicted of assaulting the paramedic and fined $700.

These facts are taken entirely from the newspaper report. At the time of writing I have no access to the actual decision of the magistrate, a matter to which I will return in a minute. I will however address some issues raised via Facebook.

The first question is ‘Has this case set a dangerous precedent for paramedics?’ to which the answer, at least from a lawyer’s perspective, is ‘no it hasn’t’.   A precedent (in legal terms) is a prior decision where a superior court – a court of appeal or the High Court of Australia – makes a ruling on the law that other lower courts have to follow.    Magistrate’s court sit at the bottom of the judicial hierarchy so a decision of a magistrate does not create a ‘precedent’ that any other court has to follow.   Evidence of that can be found by looking at a legal database such as the Australian Legal Information Institution (or AustLII). AustLII provides access to all the decisions of the High Court and the state’s appeal courts, but very little from Magistrates. The database from the Tasmanian Magistrate’s Courts contains only 8 decisions for 2015. Magistrate’s courts are the busiest courts dealing with many hundreds of cases a year. It would be impossible and unnecessary to report them all. Clearly someone decides which one’s say something interesting about the law and puts them up here, but it’s not all of them, it’s not even close to most of them. Whether this case will ever get ‘reported’ remains to be seen, but it hasn’t been put up there yet.

Magistrates’ decisions usually depend little on the law and most on the facts. The right of a person to refuse treatment if they are competent is not an issue. The issue in this case is the facts – was this person competent? Where his actions reasonable? We might all agree (from the facts in the newspaper) that the answers are ‘no’ but we don’t have the evidence. If the Magistrate found the answers to those questions were ‘yes’ then that is a ruling on facts, not law. A ruling on the facts is never a precedent. If the magistrate found that this accused, with a BAC of 0.2 was still competent, that in no way says whether the next defendant with that BAC will be competent. The facts of each case are necessarily different.

Another comment says

‘‘The injection into his body of an unknown drug was a gross violation of his personal security and integrity…” Its called medical treatment?!

It may indeed be called medical treatment but we don’t have to accept medical treatment. As the High Court said Rogers v Whitaker [1992] HCA 58, [14]:

… except in cases of emergency or necessity, all medical treatment is preceded by the patient’s choice to undergo it. In legal terms, the patient’s consent to the treatment may be valid once he or she is informed in broad terms of the nature of the procedure which is intended’.

If this defendant was being approached by multiple people to receive an injection which he had ‘expressed aggressively and loudly that he did not want’ then that is a violation of personal integrity. The days when people had to accept treatment that they don’t want, even though it’s objectively in their best interests, are long gone.   In Collins v Wilcock [1984] 1 WLR 1172 at 1177 Lord Justice Goff said:

The fundamental principle, plain and incontestable, is that every person’s body is inviolate. It has long been established that any touching of another person, however slight, may amount to a battery… “the least touching of another is anger is a battery.” The breadth of the principle reflects the fundamental nature of the interest so protected. As Blackstone wrote in his Commentaries, 17th ed. (1830), vol. 3, p. 120:

“the law cannot draw the line between different degrees of violence, and therefore totally prohibits the first and lowest stage of it; every man’s person being sacred, and no other having a right to meddle with it, in any the slightest manner.”

The effect is that everybody is protected not only against physical injury but against any from of physical molestation.

To administer the treatment in question there had to be a lawful justification and clearly consent was not available.

Another correspondent wrote:

Once upon a time I learnt that someone who is drunk is mentally not capable to make decisions on his own behalf and as an ambo you have the duty of care to administer necessary medication assuming his/her consent.

That does sound like what a lot of people have been taught, but it is wrong.   The mere fact that a person is drunk does not mean they are unable to make decisions.  In In Re MB the court (Lady Justice Butler-Sloss, Lord Justice Saville and Lord Justice Ward) said (at [30]):

A person lacks capacity if some impairment or disturbance of mental functioning renders the person unable to make a decision whether to consent to or to refuse treatment. That inability to make a decision will occur when

(a)       the patient is unable to comprehend and retain the information which is material to the decision, especially as to the likely consequences of having or not having the treatment in question.

(b)      the patient is unable to use the information and weigh it in the balance as part of the process of arriving at the decision.

The person’s intoxication may well affect a person’s capacity under both (a) and (b). A reduced capacity does not mean no capacity. The question is not whether a person is intoxicated but whether they are able to make the judgements required under (a) and (b) above.

If a person is not capable of making a decision, reasonable treatment may be given but you cannot assume consent. Rather the relevant law is that of necessity. In Re F [1990] 2 AC 1 Lord Goff said:

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

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

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

The High Court did say ‘except in cases of emergency or necessity’ but the terms are synonymous in that context.  There is not a separate doctrine of ’emergency’ and ‘necessity’ – there is only a doctrine of necessity (see In Re F [1990] 2 AC 1 and also my book Emergency Law (4th ed, Federation Press, 2013, pp 44-45).  It follows that necessity is a defence but not when a person who is competent (see In Re MB above) has refused consent, even when others think the proposed treatment is indicated by their condition.  As noted above, the fact that the person was intoxicated does not mean they could not make a decision.  If they can, and they communicate their wishes (as Mr Morrison did) then necessity cannot be a justification.

So are ‘paramedics are supposed to ignore someone who doesn’t think they need treatment?’ “Ignore” may be too strong, but you can’t treat people who refuse. Paramedics may take some comfort from the decision of the NSW Supreme Court in Neal v NSW Ambulance [2008] NSWCA 346. Mr Neal refused treatment but alleged the treating paramedics should have raised their concerns regarding a possible head injury with the police who could have detained Mr Neal and taken him to hospital. Mr Neal lost the case on the basis that even if he had been taken to hospital he would have refused treatment there so the eventual, poor outcome would have happened anyway. For the paramedics, the comfort comes from the finding in the court at first instance, and not challenged on appeal, that they could not treat Mr Neal as they did not have his consent.

Paramedics may also take comfort from the High Court’s decision in Stuart v Kirkland-Veenstra [2009] HCA 15. In that case the widow of Mr Veenstra sued Victoria police for failing to take her husband into custody when they found him sitting in a car with a pipe from the exhaust into the driver’s compartment.   The police considered that Mr Veenstra was not demonstrating evidence of a mental illness so they had no power to detain him under the Mental Health Act 1986 (Vic).   The police were not liable even though Mr Veenstra took his own life later that day.

There is no duty to rescue and the law does not put saving life as the absolute priority or obligation of health professionals including paramedics. Their duty has to be limited by the patient’s wishes. So yes, if a person appears to be competent and refuses treatment that has to be honoured but that doesn’t mean people should be ignored. There may be obligations to warn people, or those with them of the paramedics concerns but treatment cannot be imposed.

Now here is the problem. In this case and in Mr Neal’s case there is a difficulty in assessing whether or not a person is competent (see Steer, B., ‘Paramedics, consent and refusal – are we competent?’ (2012) 5(1) Australasian Journal of Paramedicine Article 4) and whether or not their refusal is competent, informed and applies to the current condition (In Re T [1992] EWCA Civ 18).

In In Re F [1990] 2 AC 1 Lord Bridge of Harwich said:

It would be intolerable for members of the medical, nursing and other professions devoted to the care of the sick that, in caring for those lacking the capacity to consent to treatment they should be put in the dilemma that, if they administer the treatment which they believe to be in the patient’s best interests, acting with due skill and care, they run the risk of being held guilty of trespass to the person, but if they withhold that treatment, they may be in breach of a duty of care owed to the patient.

But that ‘intolerable’ burden is the law – as Lord Justice Staughtan said in In Re T [1992] EWCA Civ 18, [60] and [61]:

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

Some will say that, when there is doubt whether an apparent refusal of consent is valid in circumstances of urgent necessity, the decision of a doctor acting in good faith ought to be conclusive… However, I cannot find authority that the decision of a doctor as to the existence or refusal of consent is sufficient protection, if the law subsequently decides otherwise. So the medical profession, in the future as in the past, must bear the responsibility unless it is possible to obtain a decision from the courts.

This ruling is equally applicable to paramedics, save that paramedics can be protected by statutory protection such as that found in the Ambulance Service Act 1982 (Tas) s 41.

Conclusion

Remember we don’t know the facts of this case – but what we might infer is that Mr Morrison was pretty insistent – in fact he ‘expressed aggressively and loudly that he did not want an injection’.

  • A person is entitled to refuse consent.
  • Without consent the treatment can only be justified by necessity, which does not allow treatment that is contrary to the known wishes of the person.
  • If the person did not have the capacity to refuse consent then their apparent refusal is of no legal effect and treatment may be given.
  • Determining whether or not a person is competent and has refused treatment is a difficult decision and under current law ‘good faith’ is not a defence (save for cases where statutes have been enacted to give a ‘good faith’ defence). It follows that a health professional can be liable for treating someone who has given a valid refusal, but negligent for failing to treat if the consent was not valid. That this is difficult, if not intolerable, is not in question, but making hard decisions is what being a professional is all about.
  • If a person has refused treatment then they are entitled to use ‘reasonable force’ to resist an assault (Criminal Code 1924 (Tas) s 46).

Having said that I make no comment at all on whether or not the conduct reported in the paper was ‘reasonable’. It’s hard to imagine how a magistrate came to that conclusion but without access to the Magistrate’s reasons I can’t comment. The conduct against the paramedic was not reasonable hence the conviction.


Categories: Researchers

Carrying and using Methoxyflurane and other scheduled drugs in NSW

3 October, 2015 - 21:47

A volunteer and Remote Area First Aid instructor in NSW asks a question about the administration of penthrox (Methoxyflurane).   He says that the advice he’s received form the Registered Training organization is:

  • Only be possession of penthrox with a prescription from (your) doctor
  • When delivering penthrox do it as exactly as you have been trained
  • Do not go ever go beyond your level of training

He asks

Is this advice correct?

The relevant law here is the Poisons and Therapeutic Goods Act 1966 (NSW) and the Poisons List that is made under s 8 of that Act (though it should be noted that this Act, along with its equivalent in other jurisdictions is given effect to a national scheme). The current NSW poisons list can be found on the NSW Health website. Methoxyflurane is listed in Schedule 4.

Schedule 4 is for

Substances which in the public interest should be supplied only upon the written prescription of a medical practitioner, nurse practitioner … midwife practitioner … dentist, optometrist … podiatrist … or veterinary practitioner.

It is an offence (s 16) to be in possession of a schedule 4 substance unless the person is an appropriately authorized health professional, the drug has been prescribed for them or the person has been authorized by the Director General of Health:

… to obtain possession of the prescribed restricted substance for the purposes of the person’s profession or employment and obtains, or attempts to obtain, as the case may be, possession of the prescribed restricted substance in accordance with any conditions subject to which the person is so authorised

or

the person is licensed or otherwise authorised by this Act or the regulations to obtain possession of the substance for the purposes of his or her profession or employment.

The Director-General of Health may also issue authorities to allow people to possess and use scheduled drugs Poisons and Therapeutic Goods Regulation 2008 (NSW) r 170.

  • Only be possession of penthrox with a prescription from (your) doctor

The Poisons and Therapeutic Goods Regulation 2008 (NSW) r 33(1) provides that ‘A medical practitioner must not issue a prescription for a restricted [ie Schedule 4] substance otherwise than for medical treatment’.   The prescription must contain ‘the name and address of the patient’ (r 35(1)(b)).  A medical practitioner cannot issue a prescription to allow someone to possess a scheduled drug for administration to an as yet unidentified patient as part of first aid (see also Doctors delegating authority to carry drugs (August 20, 2014)).

It follows that having a prescription from your doctor is relevant if the drug has been prescribed for you and your medical treatment. It is irrelevant if the purpose of having the drug is to give it to someone else in the course of first aid.    A prescription from your doctor cannot lawfully authorize you to carry drugs to give to someone else.

  • When delivering penthrox do it as exactly as you have been trained

If you have a license or authority to carry a scheduled drug, you must comply with any terms of that authority (r 171).

A number of people are authorized to possess and use Methoxyflurane in first aid. These authorities are set out in Schedule C to the Poisons and Therapeutic Goods Regulation 2008 (NSW). They are:

  • A person who holds a current occupational first-aid certificate approved by the WorkCover Authority in accordance with the regulations under the Occupational Health and Safety Act 2000 … ([9]);
  • A person who is trained and authorised to administer first aid at a mine (within the meaning of the Work Health and Safety (Mines) Act 2013) … ([11]); and
  • A ski patroller who holds a valid first aid certificate issued by the Australian Ski Patrol Association for use in ski patrol duties … ([14]).

This list does not include a person qualified in remote area first aid. Unfortunately the list in Schedule C is not a complete list. Schedule C contains authorities made under regulation 129. As noted however, the Director General of Health may also grant authorities under regulation 170. These authorities are not publically accessible.

An authority under regulation 170 can be given to a particular person, or a class of persons. The DG may have given an authority to the effect that any person who has completed ‘the training package SISOOPS305A – Provide first aid in a remote location’ is entitled to possess and administer methoxyflurane but I cannot confirm that.

If that is the case (and let us assume that it is) then presumably the training reflects the terms and conditions of that authority – in which case yes, you must use and administer the penthrox only as you have been trained to do so and in circumstances provided for in that training.


Categories: Researchers

Rank v responsibility; law v policy – amended

2 October, 2015 - 15:00

This cryptic heading reflects the issues raised in this question from a NSW RFS volunteer:

One of our members who was previously not an officer of the brigade gained employment with the RFS and as part of his employment was given a staff rank that outranks any of the officers in the brigade. This member has since informed us that he also carries that rank into his volunteer time with the brigade and that as a consequence he has to wear his staff rank to jobs with the brigade and if he is unhappy with the way an incident is being run by the brigade he has a legal obligation to take over control of the incident, and that he is the one that will be responsible if something goes wrong as he would be the senior officer on scene.

I was hoping if you could advise:

1) Whether staff rank does carry across to volunteer time, even if the person hasn’t been voted in as an officer by the brigade;

2) If rank does carry across does the member in question have a legal obligation to take control if they are unhappy with the way an incident is being run;

3) If something were to go pear shaped at an incident where another officer was the IC but the member with staff rank was present would the IC be responsible or the senior ranked member on scene?

The reference to ‘rank v responsibility’ should be obvious, but ‘law v policy’?  That is relevant because the whole role of the Incident Controller (the IC) is a matter of policy not law and it is law that ‘trumps’.  Let me explore the issues to explain.

The starting point for this discussion has to be the Rule Fires Act 1997 (NSW) s 12 ‘Functions of Commissioner’. According to that section the Commissioner is responsible ‘for managing and controlling the activities of the Service’. He or she ‘may determine the various duties that members of the staff of the Service are required to perform’ and determine the ‘ranks of members of the Service’.

The Commissioner has determined issues of rank and these are set out in Service Standard 1.2.1 NSW RFS Ranking and Rank Insignia.  The operational ranks of members are set out in SOP 1.2.1-1 [1]. They are:

(a) Commissioner

(b) Deputy Commissioner

(c) Assistant Commissioner

(d) Chief Superintendent

(e) Superintendent

(f) Inspector

(g) Officer L3/Group Captain

(h) Officer L2/Deputy Group Captain

(i) Captain

(j) Officer L1

(k) Senior Deputy Captain

(l) Deputy Captain

(m) State Mitigation Support Service (SMSS) Crew Leader

Operational ranks are distinguished from operational support such as communications, catering and transport (see [3]). The ranks of Group Captain, Deputy Group Captain, Captain, Senior Deputy Captain, Deputy Captain and State Mitigation Support Service Crew Leader are all volunteer ranks.

A staff rank holder does not necessarily outrank a volunteer; an Officer L3 and Group Captain are the same rank. A volunteer Captain outranks an Officer L1.

The ‘General powers of rural fire brigade officers and others’ to take action ‘for the purpose of controlling or suppressing a fire or protecting persons, property or the environment from an existing or imminent danger arising out of a fire, incident or other emergency’ may be exercised by Deputy Captain or above (Rural Fires Act 1997 (NSW) s 22; Service Standard 1.3.1 Delegations and Authorisations; Service Standard 1.3.2 Powers of Officers).

Both the service standards and the legislation are silent on the exact interplay between ranks. There is no clear statement that there is an obligation to obey the orders of a senior officer though such obligation must be implied.

The role of staff in volunteer brigades is governed by Service Standard 2.1.9 Participation by Permanent Staff in Brigade Activities.  It says ‘Permanent members of staff of the NSW RFS may also be members of, and participate in, the activities of a rural fire brigade’. It doesn’t say whether they should wear their staff rank but there is only one Rural Fire Service, the service consists of the Commissioner, employed staff and volunteer firefighters (Rural Fires Act 1997 (NSW) s 8). It stands to reason that a person is employed by the Rural Fire Service then when they have their uniform on it should include the rank slides that reflect their appointment.

The first question I was asked was ‘Does staff rank does carry across to volunteer time, even if the person hasn’t been voted in as an officer by the brigade?’ My reading of Service Standards 1.2.1, 2.1.9 and the Rural Fires Act s 8 is that there being only one Rural Fire Service a person’s appointment is their appointment whenever they responding as part of that service and it would not make a difference if they were responding in either a staff volunteer capacity.

The next question triggers issues between law and responsibility. AIIMS (4th ed, p 12) says ‘An Incident Controller is appointed for every incident and is responsible and accountable for all of the functions of incident management’.  Readers of that manual would be forgiven for thinking that position reflects, or is reflect in, the law but that is not the case. The role of ‘Incident Controller’ is not expressed in law.   If a matter goes ‘pear shaped’ the person who will always be ‘responsible’ is the Commissioner. The chief officers of Victoria Police, the Country Fire Authority and the Department of Sustainability and Environment certainly discovered during the 2009 Victorian Bushfires Royal Commission that responsibility rested with them, not with their appointed incident controllers (for further discussion on the relationship between the IC and the chain of command see my book Emergency Law (Federation Press, 4th ed, 172-173).

So if ultimate responsibility rests with the Commissioner it is up to the Commissioner to determine how the roles of IC and people of various ranks are to be managed.  One can imagine that a future post event inquiry, depending on the outcome, the question will be relevant.

  • If a senior officer insists that they are to take on the role of IC and displaces a more experienced and qualified ‘junior’ officer then the issue will be why should that happen and the ultimate recommendation will be ‘IC’s should be appointed on the basis of skills and qualifications not rank’ (see 2009 Victorian Bushfires Royal Commission, Recommendation 18 – ‘The Country Fire Authority and the Department of Sustainability and Environment amend their procedures to require that a suitably experienced, qualified and competent person be appointed as Incident Controller, regardless of the control agency for the fire’. Change ‘regardless of the control agency for the fire’ ‘regardless of rank’ and you can see how this will be relevant.)
  • If a senior officer allows a junior officer to remain as IC but there is a poor outcome, the issue will be why didn’t the senior officer supervise the junior officer and either counsel him or her or take over the role when it became apparent things were not working out (see 2009 Victorian Bushfires Royal Commission, Final Report [2.3.5] The Fundamental Responsibility of those in Command’).

When the Commissioner of the Rural Fire Service makes a declaration under s 44 the declaration nominates who is to be the IC.  That person then has the Commissioner’s delegation with respect to the fire and it would not be appropriate for a person of senior rank to the IC, but subordinate rank to the Commissioner, to intervene and somehow remove the person’s appointment.  But the idea of AIIMS is that every incident has an incident controller and they may not be directly appointed by the Commissioner.  In that case the person of senior rank does have a ‘command’ responsibility.

So can I answer the final two questions?

2) If rank does carry across does the member in question have a legal obligation to take control if they are unhappy with the way an incident is being run; and

3) If something were to go pear shaped at an incident where another officer was the IC but the member with staff rank was present would the IC be responsible or the senior ranked member on scene?

The ranked member has a legal obligation to do something if he or she is unhappy with the way the incident is being run.  Service Standard 2.1.9 Participation by Permanent Staff in Brigade Activities [2.8] says (emphasis added):

A permanent member of the staff who participates in a brigade activity as a member of a brigade: (a) does so as a volunteer; and (b) is subject to the direction and control of the relevant brigade, group and district officers unless a safety issue or an inappropriate operational strategy is planned or being undertaken, in which case the issue should immediately be raised with the appropriate officer.

If the incident goes ‘pear shaped’ then everyone will be responsible for their decisions and actions.  The IC will be responsible for what or she did and if the ranked member thought there was an issue he or she will be responsible for explaining what they did about that and if they did nothing, why not.


Categories: Researchers

Paramedics and passive smoking

1 October, 2015 - 11:06

This question comes from a NSW Paramedic.

NSW Ambulance have policy directives in regards to smoking on ambulance stations, NSW Health buildings, NSW Ambulance vehicles for example within 20 metres of ambulance vehicles. I have always requested, sometimes demanded that patients, patient family and friends or bystanders not smoke whilst I am assessing and treating patient. Even in patient’s homes. I always state that I am entitled to work in a smoke-free environment. My question is, however, is it actually lawful to request that they (patients, bystanders etc) refrain or cease smoking when I’m assessing/treating patients?

The easy answer is that of course it’s lawful to request that people cease smoking, you don’t need any lawful authority to make the request and if they comply all well and good. The real question is can you compel them to stop smoking and that is a more complex question. We can consider different scenarios where the answer is more, or less, clear.

The obvious example we could not only request but insist that person stop smoking is when you are treating a patient in the presence of hazardous, flammable material such as fuel. If I imagine you are a car accident and there is leaking fuel there is also likely to be, in attendance, police and fire brigade. At a Hazardous Materials incident the officer in charge of Fire and Rescue NSW as various powers including the power to order a person to leave the area (Fire Brigades Act 1989 (NSW) ss 13 and 19). Equally, police have power to direct a person to leave a danger area in order to protect them or others from “injury or death” (State Emergency and Rescue Management Act 1989 (NSW) s 60L) Clearly of a person was smoking and refused to request stop the appropriate response would be to ask the Fire Brigade or police to take appropriate action.

There may be examples where smoking is causing a hazard but police or fire brigade are not in attendance. The obvious example would be where paramedics are using oxygen to treat a person and a bystander assists on smoking. Let us assume, for the sake of the argument, that this is in the patient’s home. Certainly the danger should be made clear to the smoker for lawful authority there is to take any action is unclear.

A person who is at someone else’s place of work has an obligation to take reasonable care for their own and others’ safety (Work Health and Safety Act 2011 (NSW) s 29) but they are unlikely to recognise that they are a place of work  or are bound by that particular Act in their own home. It is unlikely that SafeWork NSW (the agency that since 1 September 2015 has replaced WorkCover as the health and safety regulator in New South Wales) would be interested in investigating and prosecuting a person in the circumstances. Even if they were it is not much help at the time.

The Smoke-Free Environment Act 2000 (NSW) seeks to ‘to promote public health by reducing exposure to tobacco and other smoke in certain public places’ (s 3) and so will have no application in a private home.

It is an offence to obstruct or hinder an ambulance officer who was attempting to treat a person (Health Services Act 1997 (NSW) s 67J). However that offence requires that the obstruction or hindrance is ‘intentional’. A person who is smoking while a paramedic is treating their friend or relative is probably not intending to obstruct or hinder the officer and it would be difficult to argue that by smoking the officer was so obstructed or hindered. The case may be clearer where a paramedic has to compromise their treatment e.g. by turning off oxygen. In that case it would be relatively easy to see the paramedic was obstructed or hindered in the performance of their duties. Whether that was intentional would depend on the facts but if the smoker had been told that they had to stop smoking or move away, or the paramedic would not be able to treat their friend and if they refused than that might go some way to proving the essential elements of that offence. Prosecution for that offence at some later time will not however help at the time the treatment is being administered.

If the person wants to smoke inside the ambulance and there is clear ability to ask them to stop or to leave the vehicle. For example if a patient’s relative was to travel with them to hospital and wants a cigarette to ‘calm their nerves’ then the paramedic is entitled to refuse permission. The person is in the ambulance only with the license or permission of the paramedic and that licence can be revoked if they refused to comply with the conditions imposed by the paramedic and the ambulance service. In short you can say ‘you can’t smoking here and if you insist I’ll pull over and you have to get out’.

If the paramedic were in Victoria that he or she could, if time permitted, seek police assistance. In that state ‘a police officer is authorised to remove any person who interferes or may interfere, by his or her presence or otherwise, with the provision of care or treatment’ by operational ambulance officer (Ambulance Services Act 1986 (Vic) s 39 AB). In the Australian Capital Territory the chief officer of ACT Ambulance may ‘give directions to regulate or prohibit the movement of people, animals or vehicles; or evacuate people or animals from an area to another place’ (Emergencies Act 2004 (ACT) s 34(k) and (l)).   If that power has been delegated to individual offices (s 39) then they too could give those directions but there does not appear to be any specific legal consequences if a person fails to comply with that direction. In Tasmania it is an offence to impede a paramedic in the performance of his or her duties (Ambulance Service Act 1982 (Tas) s 39B(1)). Unlike New South Wales this offence does not require proof of an intention to impede. It is also an offence in Tasmania to fail to comply with a lawful requirement or direction given by paramedic (s 39B(3)).

Conclusion

A paramedic that is concerned about smoking by bystanders is entitled to ask them to stop. Where there is a risk they should attempt to explain that risk and if necessary it may mean they have to compromise their treatment e.g. by turning off oxygen equipment. While there are some legal obligations on the bystanders enforcing them is likely to be impossible and ineffective. It is unlikely that any use of force to stop a person smoking, in the interest in ensuring a smoke-free workplace, could be justified.

Where the smoking is creating an actual danger of fire or explosion a paramedic should seek assistance from police or the Fire Brigade.


Categories: Researchers

New Zealand fire authorities seek to recover cost of fire fighting

1 October, 2015 - 10:08

The Wanganui Chronicle in New Zealand is reporting that ‘The National Rural Fire Authority will seek more than $100,000 in costs from the person they believe is responsible for last summer’s Santoft forest fire’ (Zaryd Wilson, ‘Fire Authority seeks Blaze costs’ Wanganui Chronicle (online) 1 October 2015).

The Forest and Rural Fires Act 1977 (NZ) s 43 provides that a person who is responsible for the ‘outbreak’ of a fire is also responsible for the costs of fighting that fire and protecting neighbouring properties.  One can envisage that in many cases, particularly where the fire fighting is effective, the costs of fighting the fire may be much higher than the damages caused by the fire.   The Act also provides that the person responsible is liable to pay for the loss or damage to any property caused by the fire.

The legislation imposes strict liability, that is the liability is established without the need to prove negligence or lack of care (Garnett v Tower Insurance Limited [2011] NZCA 576. [38]). Further, ‘The harm need not be foreseeable. However, the defendant is not liable where the harm, although produced by his or her actions, was an extraordinary consequence, not a normal fact of life’ (Nelson Forests Limited v Three Tuis Limited [2013] NZHC 856, [24]).

In West v NZ Fire Service Commission  [2007] NZHC 1274 the defendant had lit and was monitoring a fire on his property.  When he realised it was approaching the property boundary he made an emergency call and requested assistance, in particular, ‘the use of a helicopter and monsoon bucket’ to extinguish the fire.  Rather than simply provide the services requested, the New Zealand Fire Service and the relevant council made their own assessment of the resources required to suppress the fire.  In an action to recover the costs of the fire fighting Mr West argued he should only be liable for the costs of the services he requested.  Not surprisingly he lost that argument.

Both West Australia (Bushfires Act 1954 (WA) s 58) and the Northern Territory (Bushfires Act (NT) s 57A) have provisions that allow for the recovery of fire fighting costs but in both of those jurisdictions, liability only arises if the person responsible has committed an offence or failed to comply with the provisions of the Act. In New Zealand the liability does not require any allegation or proof that the fire was illegally lit; liability ‘is not contingent on the one responsible having committed any offence, or any offence of a particular character. It stands quite apart from the array of offences that the 1977 [Forest and Rural Fires] Act creates’ (Department Of Conservation v Smythe [2008] NZHC 1316, [62]).


Categories: Researchers

Coroner’s inquiry into the Wambelong (Coonabarabran) bushfire, January 2013

29 September, 2015 - 18:38

Introduction

New South Wales Deputy State Coroner HCB Dillon has handed down his findings following an inquiry into the devastating bushfires of 2013 near Coonabarabran in northern New South Wales. This inquiry follows a previous Parliamentary enquiry into the same fires. Before both the parliament and the coroner a group of affected landowners known as the Coonabarabran Property Owners’ Alliance raised issues of concern with the response by the National Parks and Wildlife Service and the New South Wales Rural Fire Service. In the Parliamentary inquiry it was clear that they were alleging that there had been negligence in the response to the fire.

A coroner’s inquiry may be established to conduct an investigation into the cause and origin of a fire.   A coroner may also hold a general inquiry into a fire which includes an ‘examination of all of the circumstances concerning the fire …’ (Coroners Act 2009 (NSW) s 30). This inquiry was a ‘general inquiry’ and so extended beyond the issue of cause and origin and included a review of the planning for and response to the fire.

It has been reported that at least one member of the Coonabarabran community had hoped that the coroner would make some finding of negligence in respect of the fire.  Stephen Lill, whose farm was damaged in the fire is quoted as saying “It’s put an unbelievable strain on the people of Coonabarabran. Unfortunately we didn’t hear the negligence word mentioned there in court” (Sophie Tarr, ‘Bushfire findings ‘no comfort’ to victims’ 7News (Online) 28 September 2015). It should be no surprise that the word “negligence” did not appear in the coroner’s report. As the coroner says (at page 10):

A coronial fire inquiry is a search for truth. It is intended to be an independent, objective, fair examination of the available evidence relating to the fire. It follows that a proper inquiry is neither a witch-hunt nor a whitewash. One of the general purposes of holding coronial inquiries such as this one is to address the suspicions and fears of members of the community who have been harmed by events such as this one. Civilised societies are concerned about catastrophic harm caused to their members and try to understand those events. This may help those harmed but also enables the community to learn from their traumatic experience.

It is critical to emphasise from the outset that these proceedings have been an inquiry, not a trial or a contest. Although arguments have been put on both sides of various questions and issues, and the Alliance has not resiled from its criticisms of the NPWS, these proceedings are by definition inquisitorial in nature, not adversarial. The primary concern and focus, therefore, in this (and all coronial proceedings) has been to ascertain the facts. For this reason, there are no formal “parties”, as such, in these proceedings, with rights and interests to be adjudicated upon after they present their respective cases. Nor is it the function of this inquiry to apportion blame, although, of course, it is necessary to make findings as to the appropriateness of what was done.

Despite these comforting words it is often the case that inquiries such as this do begin to resemble adversarial trials, a most notable example being the coronial inquiry into the 2003 Canberra fires. In this case, at least judging from the final report, that does not appear to have happened here though that, no doubt, may help explain the frustration of Mr Lill and other affected property owners.

Even so, the coroner was aware of the concerns of the property owners and was conscious of the need to address them. He set out their concerns and summarised the most important ones (at page 9) as ‘… allegations or grievances [that] relate to the preparation for outbreak of the fire; the response to the fire; the back burn operation; and community notification’.  The coroner addressed each of those in the course of his report.

The coroner’s conclusions

With respect to the cause and origin of the fire the coroner found there was insufficient evidence to establish either the cause or the exact starting point of the fire.

With respect to prior preparation and hazard reduction in the Warrumbungle National Park the coroner noted that there had been plans to hazard reduction burns dating back to 2012. This had not occurred for various reasons including inappropriate weather conditions. “With the benefit of hindsight” it was found that there probably was an opportunity for the hazard reduction burn back in May 2012 but:

It is difficult … to be critical of the individual officers who, at that time, did not seize it. In their professional views, the conditions were not sufficiently favourable to carry out a successful burn during the whole period. It is true that they showed no particular urgency in searching for windows of opportunity. This was not carelessness on their part. Their approach, in the circumstances as they perceived them to be, is explicable on the basis of their aggregated experience as NPWS officers with local knowledge that catastrophic fires had not previously broken out in the park. Nevertheless, with the benefit of hindsight, it seems that any hazard reduction burns carried out in the window of opportunity … may have been beneficial…

The gist of the coroner’s finding was that the initial response to the fire was inadequate to control it but not an unreasonable response given current practices and experience. The coroner said (at p 36-37):

A lesson to be learned from this and other fires is that history is not a reliable guide to fire prediction or behaviour in the 21st century. Experience and developments in the science are undermining conventional wisdom based on history.

That is a lesson from the fire, but not a criticism of the first responders who applied their prior knowledge and experience of fires in this area.

The next issue was the response to the fires. The coroner noted that the fire was initially dealt with as a “Class I” fire which meant that was controlled locally by National Parks and Wildlife Service staff. It appears the fire was treated as a class I fire until 11am  on 13 January 2013 when it was upgraded to a class 3 fire and a declaration was made under s 44 of the Rural Fires Act 1997 (NSW). The effect of this declaration was to put the Commissioner of the Rural Fire Service in charge of all fire fighting operations.   A concern raised was the delay in upgrading the fire with the belief that had the fire been upgraded to a ‘Class 2’ fire, or a s 44 declaration made earlier, that would have brought more resources to bare and improved the outcome.   The coroner agreed that, with hindsight, it ‘seems a common sense proposition’ that a s 44 declaration should have been made earlier (p 29) but whether this ‘would have made a difference to the outcome is very difficult to say with certainty’ (p 31).

Another concern was the use of a back burn to try and contain the fire.  It was suggested that the back burn was put in when conditions were inappropriate and this had led to further spotting and the spread of the fire.  The coroner found however that the back burn made no difference to the outcome, neither controlling nor increasing the size of the fire (p 39).

Another issue was community warnings.

One of the major grievances of the Alliance and others who were affected by the fire in the region was that emergency notification came far too late to enable them to take action to save their property. (p 41).

Reference was made to the expert evidence that

… emphasised the importance of the public being pre-prepared during the fire season. [The expert witness] … noted that “during major fires, the time period between fires starting and/or breaking containment lines may be very short. That means that there is typically insufficient time to do fire preparation (eg remove fuels from around assets and, in some situations, relocate to safe zones) once the emergency notification has been made.”

Even so, the coroner did agree that a higher ‘watch and act’ warning should have been given earlier.   The problem for the IMT was that the fire prediction modelling did not suggest that the fire would cross a major road in the National Park and threaten private assets.  Unfortunately the models were inaccurate.   This was the first time the RFS had used the fire prediction system and fire ground managers were not familiar with it or its limitations.  The coroner recognised the difficult position that caused for firefighters:

… people on the ground then are caught between two stools: do they rely on their own judgment or do they rely on the prediction? What if the prediction casts doubt on their own judgments? In this, as in other fields, such as psychiatric risk assessment tools, the presumed predictive value of the tool may lead to over-reliance or complacency or, on the other hand, may lead to complete distrust of such tools. Defining what the predictive tools can and cannot do is of critical importance, especially in extreme situations. One of the vital lessons to be learned in this inquiry is that the limits of the predictive tools that are available to fire-fighting services in this country need to be clearly understood by all involved in using them.

In this case when the fire started behaving in a way that was not predicted, eg when it jumped over the road, emergency managers should have considered what they would do if they lost control of the fire and warn potentially affected communities.  He said (at p 43):

In my view, once it became clear to the controllers that a direct attack could not, for safety reasons, be carried out the next day, and that an indirect attack would be made in conditions unfavourable for back burning generally, that raised the risk of the fire breaking out. Given the rapidity with which Australian fires can develop into catastrophes, it would have been prudent to issue a Watch and Act alert on the Sunday morning.

It is interesting to compare this finding with that of the inquiry into the 2013 Tasmanian fires (Malcolm Hyde, 2013 Tasmanian Bushfires Inquiry: Volume 1 (Government of Tasmania, 2013)).  In that fire the modelling using the Phoenix-Rapidfire system was amazingly accurate.  It ‘predicted [the fire] would run south east reaching Dunalley at 3.00pm on 4 January. The fire actually reached Dunalley following this path at 3.25pm on 4 January’ (p 53).  This type of modelling was also new for the Tasmanian IMT’s and was not used as a basis to warn the affected community.   In that case the Special Investigator was critical of the IMT for not relying on the modelling.

Those two findings can be reconciled.  If the modelling suggest that a community is at risk then it is appropriate to warn them.  If the modelling does not suggest that a community is at risk but the fire starts behaving in a way that is not predicted, then experience fire managers have to apply their own knowledge and understanding to consider where the fire may go in a ‘worst case’ scenario and warn communities accordingly.

Discussion

A coroners findings are intended to identify what happened and to make recommendations for the future.  In this case the coroner made 23 recommendations. Whether they will be useful I will leave for others to judge.

As a legal commentator I can say that the coroner did not make findings that would give comfort to anyone seeking evidence of negligence.  Even if there was an unreasonable failure to properly identify the scale of the fire, to seek a s 44 declaration or to properly manage the back burn, the coroner found that these things did not contribute to the final losses.  There may have been an opportunity to issue earlier warnings but the coroner made no finding on whether that would, or would not, have made a difference.  Where he found that things could have been managed better by, for example, have pre-positioned resources given the high fire danger (Recommendation 18) , responding to the fire with resources taking into account the fires possible growth rather than current size of the fire (Recommendation 8) and taking a more active approach to warning (Recommendation 11), he found that the actions were understandable, reasonable and done in good faith.

This is how the coroner summarised the situation facing the IMT (at p 39):

On the night of 12-13 January, the NPWS incident controllers had (if they had only known it) the invidious choice of doing virtually nothing or attempting what turned out to be the impossible. Had they pulled off a miraculous save, they would hae been local heroes. Had they attempted nothing, the criticism that would have undoubtedly have followed would have been blistering and perhaps justifiably so.

And further (at p 45) they:

… were facing a situation very few people in the world ever have. Although, with the magnificent 20/20 vision hindsight gives us, it appears to me that a number of aspects of the fire could have been managed better, I have no doubt that the NPWS officers involved in this fire acted with utmost good faith and to the best of their ability in the most difficult of circumstances.

These findings are not binding on any subsequent court should the property owners proceed with a claim for compensation.  If that were to occur the evidence would need to be tested again and a court would reach its own conclusions on both the facts and the law.

Conclusion

There is no doubt that property owners who believe the fire was mis-managed and that there was culpable fault by NPWS will be disappointed by the measured nature of this report, fire managers on the other hand, may take some comfort from the understanding of the difficult choices and decisions that had to be made in a dynamic environment.


Categories: Researchers

Natural Justice and the SES

28 September, 2015 - 18:24

My friend and colleague, Luke Dam, posted a link to this news story via the Emergency Management Australia LinkedIn group: Angus Thompson, Father and sons SES volunteers lose legal fight over suspension from Bacchus Marsh unit, HeraldSun (Online) 23 September 2015.

The story reports that the Victorian Civil and Administrative Tribunal (VCAT) found that it did not have jurisdiction to review a decision of Victoria SES to suspend four members of the Bacchus Marsh SES unit.   According to the press report ‘VCAT member Anna Dea said the tribunal had no review powers because the men had not been formally suspended.’

The decision the subject of the story is Chapman v Victoria State Emergency Service (Review and Regulation) [2015] VCAT 1402.   In this case there had been a falling out between four members (Mr Raymond Chapman and his sons Daniel and Paul and Mr Brendan Bennet) and the unit leadership team. This had lead to a number of grievances being lodged and meetings held to try and resolve the issues.   On 10 October 2014 Victoria SES appointed an independent investigator to look into the various issues and the unit leadership.    The investigation was to ‘determine if VICSES is able to provide a safe working environment for the members of Bacchus Marsh Unit or if further investigation is required to determine whether charges will be laid against individuals under Part 2-Discipline clause 6 of the Victoria State Emergency Service Regulations 2006.’

On 12 January 2015 the Assistant Chief Officer and Regional Manager – Mid West Region reported on the outcome of the investigation.   In a letter to the Chapman’s, the Assistant Chief Officer (ACO) wrote:

With the depth of ill will, distrust and disrespect that has developed over a period of approximately two years, it is unrealistic to believe the members of Bacchus Marsh Unit can return to a positive and safe working environment whilst you are still attending the Unit. The lack of genuine desire to resolve differences and work together in a positive and collaborative way arises from the openly expressed view of you and your sons that the leadership group is incompetent and should be dismissed, with you and/or others from your group taking over the leadership.

It was reported that the Unit leadership team would remain in place, the four members were expected to:

… interact with the Unit leadership in a manner that is consistent with the organisation’s values and policies, including demonstrating respect for the leadership structure, complying with lawful directions and positively representing the interest of the Unit with the service and the wider community.

At that point one could not say that anyone had been suspended, but the ACO’s letter continued:

Because of the serious nature of the allegations raised about your conduct, and the potentially serious health and safety risks, it is appropriate to advise that you are to return all the VICSES equipment to the Regional Office and cease attending the Bacchus Marsh Unit until such time as the organisation decides the risks to health and safety are eliminated or minimised in accordance with the organisation’s WHS safe working environment responsibilities…

I will arrange a meeting with you … to discuss this matter and also to clarify what would be required for you to demonstrate behavioural change of sufficient magnitude and scope for you to be able to resume duties with the Bacchus Marsh Unit without jeopardising VICSES duty of care to provide a safe working environment for Unit members.

The members’ uniforms and ID’s were collected and a meeting held. According to Mr Chapman said he understood he had been suspended and his membership of the SES terminated; the Assistant Chief Officer (ACO) on the other hand believed there had been a mutually agreed ‘cooling off’ period and the Chapman’s behaviour in other emergency services would be monitored to see if there were behavioural changes that would allow a return to Victoria SES.

Mr Bennett says he was told by the ACO that he was indeed suspended. The four gave evidence that other members of the unit had been informed of their suspension.   There was further correspondence and meetings when Victoria SES officers denied that the members had been suspended.  Eventually the four members applied to VCAT to have the suspension decision reviewed.

The process to suspend a member is set out in Part 2 of the Victoria State Emergency Service Regulations 2006 (Vic). Member Dea of VCAT summarised their effect (at [63]) as:

… the process leading to a suspension (or a reduction in rank) under regulation 18 is lengthy and formal. It requires:

  • A complaint to be made,

  • Notice of the complaint to be given in writing;

  • A decision to lay a charge;

  • Notice of the charge and the hearing arrangements to be given in writing;

  • A hearing to be held before the Authority; and

  • The Authority to decide that the charge has been substantiated.

Where a suspension is imposed under r 18, a member had the right to seek a review of that decision at VCAT (Victoria State Emergency Service Regulations 2006 (Vic) r 21).  Member Dea found that there was no action taken under Part 2 and therefore no decision for VCAT to review under regulation 21.

Discussion

This outcome seems very unsatisfactory. The members were told that they could not continue attending the SES unit.   In the opinion of Member Dea ([46]-[47]):

… it seems to me, applying the ordinary meaning of suspension, that it might be said that the applicants were suspended. That meaning includes action causing something to cease or bring to a stop or action causing a cessation, for a time, of the operation of a privilege or the like or the exercise of the enjoyment of a privilege.

The applicants were told not to attend the Unit. Their uniforms and other necessary items had been removed. Their intranet access appears to have been removed or changed. While it is correct to say the 12 January 2015 letters required them to attend a meeting, for the Chapmans that letter and subsequent correspondence made it plain that they would not be expected to return to the Unit for 12 months to allow time for the processes and steps outlined in the letter to be completed. There was a requirement to demonstrate behavioural change to VICSES and apparently produce references or be subject to checks before returning. In my opinion, relying on the material described above and taking the applicants’ cases at their highest, it is arguable that those circumstances are consistent with the ordinary meaning of suspension.

This suspension was not, however, made under Regulation 18. So how was it made? The ACO had no power to suspend a member (see [58]-[62]). At [69]-[70] Member Dea says (emphasis added):

It is clear that at the time the investigation commenced and the 12 January 2015 letter was written, ACO Warren and Ms Bahen had in mind concerns about providing a safe place in which the leadership and members could operate and only the possibility that charges or other disciplinary processes may be called for.

Despite the lack of clarity about the basis for the actions taken, I am satisfied on the documents produced by the applicants, that the investigation being undertaken and the identification of outcomes set out in the 12 January 2015 letter were preliminary to the processes described in Part 2 of the regulations. There is nothing to suggest that ACO Warren thought he had the delegated powers of the Authority under regulation 18 or the COO under Part 2 of the regulations.

What follows is:

  1. The members were suspended;
  2. The power to suspend lies in regulation 18;
  3. The ACO did not believe that he was exercising that power;
  4. There was a ‘lack of clarity’ for the basis for the various actions taken;
  5. But because it wasn’t explicitly under regulation 18 the VCAT had no jurisdiction.

It’s a shame that having found that the members were suspended and that the suspension was not made under r 18 Member Dea did not have the jurisdiction to declare the decision invalid; but that was not her jurisdiction. Her jurisdiction was limited to reviewing a decision made or purported to made under r 18.   While she accepted ‘… the applicants wish to have the circumstances discussed above reviewed by this tribunal given it is likely to be speedier and less costly than possible alternatives’ ([73]) she did not have the power or jurisdiction to grant that wish. As she said (at [49]) ‘As a creature of statute, the tribunal only has the powers it is granted through the VCAT Act or under another enactment.’   If VCAT could only review a decision made under regulation 18 and this action was not, and not intended to be made under that Regulation, then VCAT was not the right tribunal. But that did not mean the application was without merit.

Although VICSES were successful Member Dea refused to order that the four members pay the SES’ costs.   She said (at [80]-[81]):

While I have concluded that the applicants have no right of review to this tribunal because no decision was made under regulation 18, I do not accept that the proceedings have been brought frivolously or vexatiously. I accept the applicants’ position that, prior to and since they received the 12 January 2015 letters, they have sought an explanation from VICSES about the power it relied on for its actions and have sought a means to resolve the underlying dispute.

While it might have been preferable for the applicants to seek legal advice before commencing and continuing with these proceedings, legal representation is not a prerequisite for commencing proceedings in this tribunal…

Had the parties sought legal advice they may have been advised that their only remedy lay with the Supreme Court rather than the cheaper and more informal VCAT.

What follows is:

  • If VICSES seek to discipline a member under regulation 18, the member can seek a review of that decision at VCAT;
  • If, on the other hand, a senior officer of VCAT takes action against a member that he or she is not authorised to take, without being fully aware of the powers he or she is exercising or being unable to explain the authority that he or she thinks is being exercised and in effect imposes a suspension (even if they don’t believe that is what they are doing) the member is left without an effective, independent remedy. They would no doubt have a remedy relying on the ‘chain of command’ but as these members had been told that senior officers would no longer accept a grievance from them (see [10]) that was not going to provide an effective review. For a decision that is made beyond power the applicants would have had to go before a court, probably the Victorian Supreme Court.

(For a similar conclusion, this time involving Queensland SES see Gilmour v The State of Queensland represented by Queensland Fire and Emergency Services [2014] QCAT 70 where the Queensland Civil and Administrative Tribunal (QCAT) also found that it ‘only has jurisdiction to review a decision in circumstances where an enabling Act provides for the review’. In that case there was no equivalent to the Victorian regulation 21 and the applicant could point to no Act or regulation that would allow the QCAT to review a decision to suspend his membership of the SES).

Conclusion

This decision may be an interesting analysis of the jurisdiction of VCAT but it must be an unsatisfactory outcome for VICSES and its members. Whilst this one case is a ‘win’ for VICSES it was a win simply because the applicants commenced their action in the wrong tribunal.   In the longer term, a result that says ‘a decision made without authority cannot be easily reviewed’ may encourage some people to act without authority rather than try to comply with the regulations with the added inconvenience of VCAT review.


Categories: Researchers

Making the installation of AED’s compulsory

27 September, 2015 - 21:21

This question comes from a paramedic student (hopefully this isn’t an assignment question). This student says:

I have been doing some research into automated external defibrillators (AED) and why despite over 30,000 sudden cardiac arrests occurring in Australia every year, legislation does not require our large public businesses (shopping centres, libraries, etc) to have an available AED. I was referred to you by my Law and Ethics lecturer as an expert in Emergency Law.

I was hoping you may be able to point me in the right direction as far as the current national legislation relevant to AED’s and any other legislation, etc that may prove helpful in my review of current standards.

A search of current legislation (Acts and Regulations) for the word ‘defibrillator’ shows that there is very little relevant legislation. ‘Defibrillator’ appears in the following current Acts and Regulations;

  • Health Insurance (General Medical Services Table) Regulation 2015 (Cth) – Schedule 1 General medical services table – providing for a payment for medical practitioners conducting an ECG ‘on premises equipped with mechanical respirator and defibrillator’;
  • Non Emergency Patient Transport Regulation 2005 (Vic) providing that a vehicle used for transporting ‘medium and high acuity’ patients is to be equipped with a defibrillator (Schedule 9 and reg 51) and that staff are trained in how to use it (reg 24);
  • Aviation Transport Security Regulations 2005 (Cth) reg 1.09 which exempts a defibrillator from the definition of a ‘weapon …capable of being used to administer an electric shock’;
  • Cremation Regulations 1954 (WA) Appendix A, form 7 – where a medical practitioner is required to answer the question ‘At the time of death was the deceased fitted with a cardiac pacemaker, defibrillator or other battery operated implant or device?’; and
  • Workers’ Compensation and Injury Management (Scales of Fees) Regulations 1998 (WA) – Schedule 1 which provides for payment for ‘Anaesthesia for… insertion of automatic defibrillator …’

Relevant legislation with respect to standards will be standard consumer and product legislation such as the Competition and Consumer Act 2010 (Cth) requiring that products are fit for purpose and properly designed and manufactured.

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

So why isn’t it compulsory for large public businesses (shopping centres, libraries, etc) to have an available AED? I’m speculating here but I can think of a number of issues.

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

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

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

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

The next issue is that this would require extensive cooperation within government. The Department of Health does not regulate shopping centres and whatever government department is regulating those places is not necessarily aware of the issue.

Regulating to impose an obligation upon private citizens and businesses to invest in equipment that may not ever be used may not be politically prudent and could well fail to meet the standards set by the Office of Best Practice Regulation. Although that office is about Commonwealth law, states are also required to consider the impact of regulations and whether the costs warrant the benefits.

It is likely that making the installation of an AED compulsory would impose significant costs to achieve limited benefit, would be politically unpopular and would be inconsistent with current trends to reduce red tape and compliance costs; but as I say this is mere speculation.


Categories: Researchers

Posting photos on social media as a community warning (Victoria)

25 September, 2015 - 11:08

This question comes from a CFA volunteer.  It is

… a question relating to social media in particular the posting of photos by CFA members whilst at an emergency. There are a range of policies, etc governing this but I am concerned that these are written by anti social media Execs. I also have a firm belief that locals who are near or in the path of the fire would appreciate me as a responder (if safe to do so) taking photo and posting these on social media. If I posted photos of fires in particular bushfires, could I argue that I am supporting the organisation to comply with S50B of the CFA Act?

I’ve made a number of posts about taking photos – see:

But this question relates to the use of photos and s 50B of the Country Fire Authority Act 1958 (Vic).    Section 50B says:

Duty to warn the community

(1) The Chief Officer must issue warnings and provide information in relation to fires in the country area of Victoria if—

(b) the Chief Officer considers that the issuing of warnings or the provision of information is necessary for the purposes of protecting life and property.

(2) The Chief Officer must have regard to any guidelines, procedures or operating protocols issued by the Emergency Management Commissioner under section 44 of the Emergency Management Act 2013 for the purposes of carrying out a duty under subsection (1).

(Section 50B(1)(a) was repealed in 2013 so the omission of paragraph (a) is not a mistake).

The CFA may establish volunteer brigades and ‘every brigade …  and all officers and members of brigades … shall be under the order and control of the Chief Officer’ (s 27).  The Chief Officer may delegate his power or authority to a person or office holder approved by the CFA (s 28).

Discussion

The duty to warn the community is a duty vested in the Chief Officer and he or she may delegate that obligation to others.  The obvious person to receive that delegation would be an incident controller who would set up the necessary team within the IMT.   The Chief Officer is unlikely to delegate his or her authority to a front line fire fighter.

There is no general duty or power upon anyone to ‘assist’ the CFA and it certainly would not be regarded as assistance for a person to undertake, on their own initiative, some action in the belief that it would assist.  For example a private citizen who observes a bushfire could not seriously light a fire as a ‘back burn’ and claim some immunity because they were intending to ‘assist’ the CFA.

Equally a firefighter taking a photo and posting it on a website is not assisting the CFA Chief Officer to meet his or her obligations.  In some circumstances such action may actually hinder the Chief Officer or his or her delegate.

The Chief Officer has ultimate control of all brigades and their members and can set out the policies and procedures that they are to follow.  It is not up to members to decide that they don’t need to comply because in their view, the policies are badly written, ill-informed or not helpful.

Conclusion

My earlier posts have addressed the issues of taking photos at the scene of an emergency. The presence of s 50B in the Country Fire Authority Act 1958 (Vic) does not affect those answers.   A person, whether a fire fighter or not, cannot argue that posting photos on social media is a legitimate exercise of the powers or obligations set out in s 50B nor is it somehow justified as ‘supporting the organisation [or the Chief Officer] to comply with’ those obligations.  One supports the Chief Officer to achieve his or her obligations by following his or her directions.


Categories: Researchers

Transporting more than one patient in an ambulance

25 September, 2015 - 10:42

This question comes from a paramedic but I’m not sure in which state or territory.  My correspondent says:

I work for an emergency ambulance service in Australia. Our ambulances are fitted with 2x stretchers and 2x rear facing seats. On many occasions we will be transporting a patient to hospital and get asked via Comms if we can attend a second case (with a patient on board). This would often involve the driver assessing the patient, bringing them back to the ambulance and transporting 2 patients to hospital at any one time.

Also, the smaller stations that only have 1 ambulance may be dispatched to MVA’s that have multiple patients, since being the only ambulance in town we are expected to transport all or as many patients as we can (2x stretcher and potentially a seated patient).

My question is, does this impede on each individual’s confidentiality by transporting 2 different people? My assumption is that you can ask patient 1 if they consent to picking up another, however patient number 2 cannot be asked prior to your arrival. In the past I have had to transport a head injured patient and a post-ictal patient at once from difference scenes, also 2x patients from an MVA which included the driver who caused the crash with another patient injured.

There is no right to privacy in Australia – see Simpson’s Solicitors, No Privacy Tort For Australia… Yet, 21 March 2013 – but there are state and federal privacy laws. These laws relate to government agencies and how they collect, store and use private data (see Privacy and Personal Information Protection Act 1988 (NSW) and Privacy Act 1988 (Cth)).

Because I don’t know from which jurisdiction this question comes, I’ll refer to the Commonwealth Act.   The Australian Privacy Principles set out in Schedule 1 to the Act deal with:

Australian Privacy Principle 1–open and transparent management of personal information

Australian Privacy Principle 2–anonymity and pseudonymity

Australian Privacy Principle 3–collection of solicited personal information

Australian Privacy Principle 4–dealing with unsolicited personal information

Australian Privacy Principle 5–notification of the collection of personal information

Australian Privacy Principle 6–use or disclosure of personal information

Australian Privacy Principle 7–direct marketing

Australian Privacy Principle 8–cross-border disclosure of personal information

Australian Privacy Principle 9–adoption, use or disclosure of government related identifiers

Australian Privacy Principle 10–quality of personal information

Australian Privacy Principle 11–security of personal information

Australian Privacy Principle 12–access to personal information

Australian Privacy Principle 13–correction of personal information

As I say, they’re really about how an agency deals with the information it’s collected rather than the situation described here.  Here it would be a breach of the principle to take a history from Patient 1 and turn to Patient 2 and say ‘did you hear that – he reckons …’    In any event compliance with the Principles requires an agency such as the ambulance service to ‘take such steps as are reasonable in the circumstances to …’ to comply.   Where an ambulance service is faced with multiple patients and limited resources that has to be considered when determining what is ‘reasonable’.

As for confidentiality, people do have a right to expect that their treating health practitioners will keep their confidences.  For a conscious patient they can understand that their conversation may be overheard but an unconscious patient or one who for whatever reason can’t form that understanding then clearly there is an impact on their ‘confidentiality’.  Whether they like it or not Patient 2 will be in a position to learn something about Patient 1 either by overhearing the conversation or simply observing them, their injuries and the treatment being give.

Paramedics are unregistered health professionals.  New South Wales, South Australia and Queensland have a code of conduct for unregistered health professionals and there are moves to introduce a national code (see Victorian Government Health Information, Regulation of Unregistered Health Care Workers, June 19 2015; see also COAG, A National Code of Conduct for health care workers 2014).   The draft National code of conduct (at p 44) says:

Health care workers to comply with relevant privacy laws

A health care worker must comply with the relevant privacy laws that apply to clients’ health information, including the Privacy Act 1988 (Cth) and the [insert name of relevant state or territory legislation]

Commentary:

The purpose of this clause is to make clear the legal requirement that applies to all health care workers to comply with relevant state and territory privacy laws that protect the privacy and confidentiality of client information.

This clause is based on the NSW Code (Clause 14) and the South Australian Code (Clause 13)…

That does not add much, particularly if I’m right and the Privacy Acts don’t deal with the situation described in the question.

Compare this provision to the provision contained in the Medical Board of Australia’s Good Medical Practice: A Code of Conduct for Doctors in Australia (March 2014).  It says (at [1.4]) ‘Patients also rely on their doctors to protect their confidentiality’.  This is given further weight at [3.2] where the code says:

A good doctor–patient partnership requires high standards of professional conduct. This involves: …

3.2.3 Protecting patients’ privacy and right to confidentiality, unless release of information is required by law or by public-interest considerations.

We’re not talking here about the ‘release’ of information or the ‘right to confidentiality’ but clearly the patient is not enjoying the sort of privacy they may hope for.

The risk to privacy is not however unique to the ambulance.  People in public hospitals including ED waiting areas, treatment areas where there is just a curtain between the beds and public wards all face the same dilemma.   Their conversations may be overheard and other people can observe them and their treatment.

The problem is that it may be ideal to have a separate ambulance, and a separate room for each patient but this is not feasible.  We simply cannot afford to resource our health and emergency services to that extent.  We can’t staff each ambulance station just in case there is another Kempsey bus crash in their area (this was an accident on 22 December 1989 that involved 2 coaches and claimed 35 lives and injured 41).   Because of that there will always be cases where paramedics, doctors and other health professionals have to treat multiple casualties at the same time with the impact that must have on each person’s privacy.  But that impact is unavoidable in those cases.

Discussion

To return to the question, does transporting more than one patient ‘impede on each individual’s confidentiality’ and the answer is that it must do but that does not make it unlawful or unreasonable.

Clearly if resources are available to avoid that outcome it would be better to use them but where those resources are not available everyone has to make do with what there is.

Although some paramedics may say they feel like they are operating a taxi service, the reality is that they are not.  It follows therefore that I do not think you ‘can ask patient 1 if they consent to picking up another’ or you can ask but their answer doesn’t determine the matter.   Patient 2 may require more immediate or urgent care than Patient 1.  In any event it is the ambulance service that is allocating the resources not the patient.   Patient 1 really doesn’t get a say but, having said that, the paramedics have a duty to protect patient 1 so they could and should advise the coordination centre whether they think it is appropriate to take on another patient.  For example if patient 1 is a teenager who has just been violently sexually assaulted, a paramedic would be acting appropriately to tell the communications centre that they cannot collect a patient who requires transfer for medical treatment at the same hospital due to the clinical needs of their first patient including the need to protect their privacy and deal with their no-doubt fragile state.  If you are ‘asked … if [you] can attend a second case’ then it has to be the case that sometimes the answer is ‘no’.

As for transporting two people from the same accident or worse, fight, the issue is not so much one of confidentiality as risk management.  If they are going to start, or continue an argument inside the ambulance that is a risk to both patients and paramedics.   But, again there could be a case where they have conditions requiring urgent attention and there really is no alternative.

With regard to the question of resources, it should be recalled that the risks could be addressed by having more paramedics and ambulances on the road but as suggested above, it is unrealistic to have enough to deal with every possible event – if we did many would spend much of their working day doing nothing.  But whatever is the optimum level of resourcing a person cannot sue a government on the basis that it should have allocated the resources in a different way, that is putting more money into ambulance services at the expense of some other government project (see Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540; Civil Liability Act 2002 (NSW) s 42).  It is not negligent to not be able to provide one ambulance per person even if it is axiomatic that to do so would enhance patient privacy.

Conclusion

Does transporting two patients in the one ambulance ‘impede on each individual’s confidentiality’?  The answer must be ‘yes’ but in some cases that will be the only option.  To do so creates no more legal issue than treating a patient in a public ward or other place where things may be seen or overheard.


Categories: Researchers

The inter-relationship between emergency services and other legislation

24 September, 2015 - 16:55

This is a short but complex question:

I was wondering if you can clarify, when it gets down to the wire, which legislation takes precedence; ie a declared emergency/fire under Emergency Management Act in relation to OHS, dangerous goods and/or even road rules in the various jurisdictions?

I’m not sure from which jurisdiction it comes, but it can be answered generally. The short answer is that none of the Acts take ‘precedence’ or ‘priority’ over the others rather they all have to be interpreted and understood in context. Where one Act is ‘subject’ to the other then that will be set out in the legislation.

Take for example the NSW Road Rules and fire brigades legislation. When a fire brigade is responding to an alarm of fire, Fire and Rescue NSW are required:

… despite anything to the contrary in any Act, proceed with all speed to the fire and try by all possible means to extinguish it and save any lives and property that are in danger. (Fire Brigades Act 1989 (NSW) s 11).

This section can be traced back to the Fire Brigades Act 1884 (NSW). The reference to ‘all possible speed’ back in 1884 may or may not have had reference to such things as ‘speed limits’. Today however, one could not read the Act as authorizing fire brigades to operate without reference to the road rules in order to ‘proceed with all speed’. For example, it may be quicker to proceed now rather than wait for a sober and competent driver but that would not justify driving unlicensed, whilst intoxicated or at a speed dangerous to the public.

Today the fire brigades are subject to the traffic laws including the Australian Road Rules. But, I hear you say, rule 316 of the Australian Road Rules provides various exemptions and indeed it does. Rule 316 of the Australian Road Rules (reproduced as rule 306 in the Road Rules 2014 (NSW)) says ‘A provision of these Rules does not apply to the driver of an emergency vehicle if…’ certain circumstances are met. Rule 306 is however part of the Road Rules. The Brigades must operate to comply with the rules that include rule 306. IF they meet the conditions then the other rules don’t apply but not because the provisions of the Fire Brigades Act take ‘precedence’ over the Road Rules but because the Road Rules themselves provide how the provisions are related. But both sets of rules operate together.

The Roads Act 1993 (NSW) s 5 says ‘A member of the public is entitled, as of right, to pass along a public road (whether on foot, in a vehicle or otherwise) and to drive stock or other animals along the public road’.   The officer in command at a fire or hazardous materials emergency may, on the other hand, ‘cause any street or public place in the vicinity of a fire to be closed to traffic during the fire’ (Fire Brigades Act 1989 (NSW) s 14). How do those sit together?

The answer here is not so obvious.   First when interpreting a statute the general rule is that the specific (power to close a road during a fire) takes priority over the general (the right to use the road). Second rights are not unlimited, even if one has a right to pass along a public road it is subject to law such as the various statutes and rules that make up the traffic laws. So you may have a right to pass along a public road in a vehicle but the vehicle needs to be roadworthy and you need to be licensed.

What follows though is that the Fire Brigades (or the police or the SES etc) can’t just close a road because they think it’s a good idea. A member of the public has a right to pass along a road, a person who wants to stop them has to be able to point to specific authority to justify their actions in closing the road, even temporarily. This would be an example where the specific Fire Brigades Act (or the equivalent in the State Emergency and Rescue Management Act) would take precedence over the general statement in the Roads Act.

Work Health and Safety legislation also operates alongside the emergency services legislation. Just because there is a fire, a flood or a declared emergency does not mean that the emergency services, councils and others are relieved of their obligation to take steps to ‘ensure, so far as is reasonably practicable, the health and safety of’ their workers (including volunteers) (Work Health and Safety Act 2011 (NSW) s 19). What is ‘reasonably practicable’ has to take into account all the circumstances including the job people are tasked to do and whether it is in fact reasonable to do that job. But an incident to which the emergency services respond should not be their emergency, for them it’s ‘all in a day’s work’ so they have to have done their risk assessment, considered how they will approach the tasks they might face and have implemented the appropriate controls.

(Even the armed forces are not exempt from WHS laws (though the Chief of the Defence Force may exempt the ADF some activities from the provisions of the Act (Work Health and Safety Act 2011 (Cth) s 12D)). Recently the ADF was prosecuted over the death of a soldier during a live fire training exercise in preparation for deployment to Afghanistan (Comcare v Commonwealth of Australia [2015] FCA 810)).

So neither Act takes ‘precedence’ over the other but considering what is ‘reasonably practicable’ for WHS purposes has to reflect what is practicable when undertaking the various tasks that the emergency services face.

In terms of the various emergency management acts (Emergencies Act 2004 (ACT); State Emergency and Rescue Management Act 1989 (NSW); Emergency Management Act 2013 (NT); Disaster Management Act 2003 (Qld); Emergency Management Act 2004 (SA); Emergency Management Act 2006 (Tas); Emergency Management Act 1986 (Vic); Emergency Management Act 2013 (Vic); Emergency Management Act 2005 (WA)) the answers are going to be largely the same. These Acts (unlike some in other jurisdictions) don’t ‘suspend’ the laws of the State, they merely give extra powers to specified people or office holders.

In Victoria, during a declared State of Disaster the Minister may direct a government agency from performing various functions and suspend legislation where compliance is inhibiting the response or recovery operations (Emergency Management Act 1986 (Vic) s 24(2)). That is a case where the could be said that the emergency management legislation ‘takes precedence’ over the other state legislation but it’s not some general rule but an application of the particular provision.

Conclusion

My correspondent asked if I could ‘… clarify, when it gets down to the wire, which legislation takes precedence…?’ and the answer is “no, I can’t”. The rule of law would say that all the legislation has to stand and operate together, each Act is equal. How the Acts do work together is not dependent on some general principle but upon the specific wording of the Act. In the examples I’ve given above it is clear that rules such as the Australian Road Rules have been designed to remove potential conflict; the Emergency Management Act 1986 (Vic) is specific in giving the Minister the power to ‘waive’ other Acts; the Work Health and Safety obligations are expected to continue to apply but their terms allow the special considerations during a hazardous event to be taken into account. The most problematic example was the interplay between the Roads Act 1993 (NSW) and the various provisions allowing emergency services to close the roads. There are rules of interpretation that would resolve that and that may be a case where we can say the emergency services legislation takes precedence over the general right to travel along a road.

But they are all specific examples and that is the way the question has to be answered. To answer ‘which legislation takes precedence; ie a declared emergency/fire under Emergency Management Act in relation to OHS, dangerous goods and/or even road rules in the various jurisdictions?’ one has to look at the specific legislation in each jurisdiction and identify the particular circumstances that are under consideration. It is not a question that can be answered in general terms.


Categories: Researchers

Wearing NSW SES PPE at all times – a question for risk assessment

23 September, 2015 - 18:17

Australian Emergency Law has been a bit quiet of late. Not much to report I guess. The Queensland Workers Compensation amendments (the Workers’ Compensation and Rehabilitation and Other Legislation Amendment Bill 2015  – see Bills for Presumptive legislation for firefighters introduced to the Queensland Parliament (July 30, 2015) have been passed but they are not yet incorporated into the official online version of the Act (which at the time of writing is up to date at 30 October 2014).   When that happens I’ll revisit the amendments to confirm their effect.

Paramedic registration is still some way off but the Senate has launched an inquiry into the matter and is now calling for submissions (see ‘Senate Standing Committees on Legal and Constitutional Affairs The establishment of a national registration system for Australian paramedics to improve and ensure patient and community safety’). Submissions are due by 29 January 2016.

In the absence of legal reforms that I can report on I wait for relevant questions and this one comes from NSW SES.

As you are probably aware members of the SES have been asking for a “light weight” shirt for some time and whilst the Service has trialled a few over the years we still don’t have one. Our overalls and two-piece uniforms are not suitable for strenuous physical activities in hot weather and it’s quite common for members to just wear pants and T-shirt despite the fact that our Service frowns on this.

As a member of the Vertical Rescue Capability Development Group we have been pushing for this (pants and T-shirt) to be accepted clothing based on a risk assessment for a while but have met with resistance.

The Two-Piece top/jacket really only provides sun protection and some scratch/abrasion protection (there is no need for high visibility unless you happen to be working beside a road etc). Sun protection can also be provided by applying sunscreen. Performing physically demanding activities in warm, humid conditions creates hazards like heat exhaustion, dehydration, fatigue and the wearing of a two-piece top/jacket increases the risk of this.

My view is that we should be assessing the risks and looking to control the highest ones. I found the following on the Canadian Centre for Occupational Health and Safety‘s website which seems to echo this: PPE “must not increase the risk or decrease the worker’s ability to do the assigned job. Wearing PPE should not in itself create a greater danger”.

We are all issued with wet-weather gear but only wear it when the hazard it is designed to protect against (i.e. rain) is present – we’re not expected to wear it all the time, so why should our two-piece tops be any different? Sometimes I feel this is more of a uniform/image issue than a WHS one.

I was wondering if you could provide some comment/advice on this from a WHS/legal perspective?

The quote from the Canadian website can be found in the section ‘Why are there so many precautions about using PPE?’ in their comprehensive fact sheet ‘Designing an effective PPE program’.

The Australian law

The Work Health and Safety Act 2011 (NSW) says that a PCBU must take reasonable steps to reduce the risk to health and safety of workers, including volunteers (s 19). To do that the PCBU must conduct a risk assessment as well as consult with the workforce. My correspondent has identified various risks. I would have thought that in Vertical Rescue risks from abrasions and injuries would be quite high and could lead to serious injuries or at least remove a rescue member from the team. That is not a matter however for me to comment on – the issue is that it is a risk that has to be considered along with the risk that the PPE will make the job harder and create its own risks. It is essential that the PCBU consult with the workers to ensure that they understand how the PPE affects those who have to perform the task (Work Health and Safety Act 2011 (NSW) ss 47-49).

In New South Wales, the implementation of the traditional hierarchy of controls is required by the Work Health and Safety Act Regulation 2011 (NSW) reg 36. It says (emphasis added):

(1) …

(2) …

(3) The duty holder must minimise risks, so far as is reasonably practicable, by doing 1 or more of the following:

(a) substituting (wholly or partly) the hazard giving rise to the risk with something that gives rise to a lesser risk,

(b) isolating the hazard from any person exposed to it,

(c) implementing engineering controls.

(4) If a risk then remains, the duty holder must minimise the remaining risk, so far as is reasonably practicable, by implementing administrative controls.

(5) If a risk then remains, the duty holder must minimise the remaining risk, so far as is reasonably practicable, by ensuring the provision and use of suitable personal protective equipment.

(For a discussion of the hierarchy of controls, listen to a ‘Hierarchy of Control podcast’ via the SafetyAtWorkBlog).

Regulation 44 also deals with PPE. It says, amongst other things, that the PCBU that supplies PPE to its workers must ensure that the PPE is:

(a) selected to minimise risk to health and safety, including by ensuring that the equipment is:

(i) suitable having regard to the nature of the work and any hazard associated with the work, and

(ii) a suitable size and fit and reasonably comfortable for the worker who is to use or wear it, and …

(c) used or worn by the worker, so far as is reasonably practicable.

A worker (including a volunteer) must ‘co-operate with any reasonable policy or procedure of the person conducting the business or undertaking relating to health or safety at the workplace that has been notified to workers’ (Work Health and Safety Act 2011 (NSW) s 28) and this would include wearing PPE where that is a workplace policy. The need to wear PPE is made a specific obligation under regulation 46 which says:

The worker must, so far as the worker is reasonably able, use or wear the equipment in accordance with any information, training or reasonable instruction by the person conducting the business or undertaking.

The problem with PPE is that it requires implementation by workers.   Workers will get around PPE if they find it is inconvenient or uncomfortable. As the Canadian website says

If a PPE device is unnecessarily heavy or poorly fitted it is unlikely that it will be worn. Note also that if a PPE device is unattractive or uncomfortable, or there is no allowance for workers to choose among models, compliance is likely to be poor. When several forms of PPE are worn together, interactions must be kept in mind. Use every opportunity to provide flexibility in the choice of PPE as long as it meets required legislation and standards.

It may be that poorly designed, ineffective or awkward PPE gives rise to conclusion that it is not ‘reasonably practicable’ to comply with a direction to wear it. Certainly if a PCBU is issuing PPE that is unlikely to be used because it is ineffective, cumbersome or difficult, then the PCBU can hardly say it has take reasonable steps to protect worker health and safety

Discussion

Attached is an image showing firefighters conducting a rescue having removed their jackets. (The photo’s available online but I won’t give my source just to help keep them as anonymous as possible but I’m sure some keen followers of this blog will recognise that the uniforms are from West Australia; I can provide the source if required).

I do apologise to those firefighters, and the lad being rescued, for using their photo and I don’t mean to suggest in any way that their conduct was inappropriate. Rather this photo demonstrates the point – firefighters are issued with a range of PPE including jackets, gloves, helmets, hearing and eye protection etc. All very useful when fighting a fire or cutting someone from a car.   But there must be circumstances where it is be appropriate to consider the risks and not wear all the issued PPE. In this case wearing full fire fighting equipment would get in they way, be impracticable and perhaps expose the firefighters to other risks.   In this case the firefighters must have concluded that the risk to their safety (by, for example, scratching their arm against the brick wall) was slight when compared to issues of comfort and need to work in that tight environment. That may be a judgment that others would disagree with but it is hard to believe that this could be considered a failure by anyone to take reasonable care of their own safety as required by the Occupational Safety and Health Act 1984 (WA) s 20(1). It could represent a breach of an instruction to wear full PPE when responding, if such an instruction were in place and were given for ‘the safety or health of the employee’ (s 20(2)(a)).

Where does that leave my correspondent? I can’t say whether it is ‘reasonable’ not to wear full PPE when doing vertical rescue or other SES tasks. Such a judgment can’t be made in the abstract but has to be considered at each job by those competent to understand and consider the risks involved. These are matters for classic risk assessment, what is the risk of not wearing the PPE and how likely are those outcomes v what are the risks caused by wearing the kit when performing ‘strenuous physical activities in hot weather’? Has the SES adopted a policy to require volunteers to wear their two piece kit at all times? Is that policy in place because it advances the corporate image or because it is a genuine outcome of an appropriate risk assessment?

The issue has to be resolved using the prescribed WHS issues resolutions procedures and that, fundamentally, involves consultation between the PCBU (the SES) and workers (including volunteers).

Conclusion

The law requires a worker to wear PPE where:

  1. That the PCBU has undertaken an appropriate risk assessment (Work Health and Safety Act 2011 (NSW) s 18);
  2. The outcome of the risk assessment is that the identified risks cannot be dealt with other than by the issue of PPE (Work Health and Safety Act Regulation 2011 (NSW) r 436);
  3. When conducting the relevant risk assessment and selecting the appropriate controls (including the use of PPE) there are opportunities for workers to be involved in the decision making process (Work Health and Safety Act 2011 (NSW) s 49);
  4. The selection of the PPE has been made taking into consideration the factors listed in the Work Health and Safety Act Regulation 2011 (NSW) r 44; and finally
  5. The PCBU has issued a policy directing that the PPE is to be worn in the circumstances.

If those steps have been followed then a worker is required to wear the issued PPE, but only where it is ‘reasonably practicable’ to comply with that policy. Again the photo from WA may demonstrate a situation where it is not reasonably practicable?


Categories: Researchers

Fitting red emergency warning lights to a private vehicle in WA

5 September, 2015 - 16:16

With this question we return to the issue of putting warning lights on a private vehicle.  Before I turn to the question or to the letter of the law, I can safely predict that the answer is ‘no you can’t put warning flashing lights on your private car’.   Warning lights are not fitted by the ambulance services, police and fire brigades just because they think they are a good idea.  They are fitted in accordance with authority granted by law because they have legal meaning and implications for all drivers.   It follows that such lights can only be fitted in accordance with the law and it will never be the case that individuals can elect to fit them and then give themselves legal authority they don’t have.

The question

So now to the question, this time from WA.  My correspondent is

… in a team leadership capacity at my local SES unit in Western Australia. Occasionally I am required to attend reconnaissance assessments of houses before determining whether or not a team needs to be called out.  This requires the use of personal vehicles to be driven from a home location to the location of an incident. Quite often the position of the vehicle may be in a dangerous location and it is common for people in this situation to display RED flashing warning lights while parked, to warn other drivers of the incident and vehicle parked at the location. My question is regarding the legality of these red flashing lights displayed in personal vehicles, with regard to Western Australian vehicle and traffic legislation. The following information may be relevant:

(1) The SES official response vehicles do not have sirens and use RED ONLY beacons, only to be powered should the vehicle be an obstruction at a roadway and going under 20 kilometers per hour.

(2) There is a provision for personal vehicles to be used under the Department of Fire and Emergency Services insurance policy. SES member personal vehicles are covered for property damage travelling to and from the unit operationally or otherwise and for member’s private vehicles used for and at an incident (with prior approval from the appropriate officer)

What is the legality of a private member’s SES vehicle to display red flashing lights operationally, and should it be illegal, what are the relevant penalties?

The relevant rules are contained in the Road Traffic (Vehicles) Regulations 2014 (WA).   Rule 327(2) says, amongst other things, ‘a vehicle must not display — (a) a light that flashes…’ unless the vehicle is an exempt vehicle and the CEO has approved the use of the particular flashing light (r 327(3)).

(The CEO ‘the chief executive officer of the department of the Public Service principally assisting in the administration of this Act’ (Road Traffic (Administration) Act 2008 (WA) s 4).  The relevant department is the Department of Transport (‘Acts with Administering Portfolios and Public Sector Agencies, Last updated: 21 August 2015’) so the approval has to come from the CEO of the Department of Transport).

An exempt vehicle is, relevantly, an ‘an emergency vehicle’ or a vehicle ‘approved by the CEO and used in conformity with any conditions that may be imposed by the CEO’ (r 327(4).   An ‘emergency vehicle’ is defined in r 226 as either:

(a) a police vehicle ordinarily used by police officers in the course of carrying out their duties;

(b) a vehicle operated by —

(i) a fire brigade under the Fire Brigades Act 1942; or

(ii) a bush fire brigade under the Bush Fires Act 1954; or

(iii) the department of the Public Service principally assisting in the administration of the Fire and Emergency Services Act 1998, and ordinarily used by members of the brigade or members of staff of that department in the course of carrying out their duties;

(c) an ambulance;

(d) an emergency vehicle within the meaning of a corresponding law [That means an emergency vehicle from another state or territory];

(e) a vehicle in respect of which a declaration under regulation 227(a) is in force;

I accept, without checking it, that WA SES vehicles have ‘RED ONLY beacons, only to be powered should the vehicle be an obstruction at a roadway and going under 20 kilometres per hour’.  Those requirements I would infer are part of the conditions imposed by the CEO when giving the authorisation under r 327 or they are standing orders imposed by WA SES. The exact authority for imposing those terms of use is not relevant to this discussion.

The private vehicle of an SES member does not fit any of these clauses unless a declaration has been made under rule 227.  Rule 227 says ‘The CEO may, for the purposes of this Part, declare a vehicle, or each vehicle in a class of vehicles, to be — (a) an emergency vehicle…’

Penalty

The maximum penalty for driving or using a vehicle that does not comply with the standards set out in the Road Traffic (Vehicles) Regulation 2014 is a fine of 16 penalty units or a modified penalty of 2 penalty units (r 232).

A modified penalty is ‘the amount of money prescribed in a written law and specified in an infringement notice as the amount that the offender is to pay if he or she wants the matter dealt with out of court’ (Fines, Penalties and Infringement Notices Enforcement Act 1994 (WA) s 11).

A penalty unit is $50 (Road Traffic (Administration) Act 2008 (WA) s 7) so the maximum penalty is a fine of $800 or, if the matter is dealt with by way of infringement notice, $100.

Conclusion

What does all that mean?

  • An emergency vehicle may be fitted with flashing warning lights as approved by the CEO.
  • The private vehicle of an SES member is not an emergency vehicle unless the CEO has specifically declared that it is, or that all vehicles being operated by members of the SES in particular circumstances are emergency vehicles (r 227).
  • In the absence of that declaration the display of a red flashing light would be unlawful.
  • If the police issue an infringement notice (an on the spot ticket) the penalty is a fine of $100 but if it goes to court the maximum fine is $800.

Categories: Researchers

Dallas Fire and Rescue – A “Fire-based EMS system that occasionally fights fires”

4 September, 2015 - 13:06

That quote a “Fire-based EMS system that occasionally fights fires” comes from the Assistant Chief, Norman Seals.

With ongoing discussion about trying to free Australian ambulance services from non-emergency services (see ‘New law for ambulance services in Tasmania‘ (August 29, 2013) and a ‘Changes to ambulance legislation in NSW – about time too!‘ (August 24, 2015)) it is interesting to see Dallas Fire and Rescue seeking to expand its role into the non-emergency sector.  US lawyer and fire fighter Larry Bennett gives the following report in his regular newsletter ‘Fire, EMS & Safety Law‘.

COMMUNITY PARAMEDICINE – NEW OHIO STATUTE – On Aug. 21, 2015, UC Fire Science held its 5th seminar on Community Paramedicine, with 240 RSVPs. On June 30, 2015, the Ohio Governor signed Budget Bill that authorizes EMS to provide non-emergency services, starting Oct. 1, 2015. A keynote speaker at the “standing room only” seminar was Assistant Fire Chief Norman Seals, Dallas, Texas, who announced that they expect $1.9 million in revenue, including contracts with two hospitals to visit recently released patients who lacked insurance for home care. Chief Seals’ Powerpoint, and those of other speakers, is posted at: http://ceas.uc.edu/aerospace/FireScience/community-paramedicineseminars.html


Categories: Researchers

Completing paramedic case records

3 September, 2015 - 18:44

A correspondent writes:

I am a paramedic working for the Queensland Ambulance Service (QAS). When we attend a patient we are required to complete an electronic ambulance report form (aERF). This document contains patient details, our assessment findings, and subsequent management including medication administered and interventions performed. It includes past medical history, current medications, and importantly allergies.

The transition of a patient from our care, to that of the hospital includes the following the steps: providing verbal handover at triage, verbal bedside handover, then delivery of our printed records to the bedside. The electronic version is stored and may be downloaded for clinical governance purposes. This documentation may also be requested by external organisations including the police, the Office of the Coroner, OHO, and the patient.

Due to “operational demands” it has become an increasing occurrence that paramedics are being dispatched to other cases prior to their immediate completion of the eARF. In regions of high workload it may be many hours, and several other cases, before this documentation is completed. This means hospitals do not receive immediate, and sometimes never, documentation relating to the prior care of the patient. It also means that there are likely to be inaccuracies and potential omissions from the documentation.

As treating paramedics, what are our legal obligations when it comes to completing and providing timely documentation on a patient we have verbally handed over to hospital staff?  Without considering internal QAS policy on this matter, would a paramedic have a legal stance to refuse an order to attend a new case based on their belief they needed to complete important elements of their care of their current patient (such as medications administered and allergies)?

My concerns come from the findings of Coroner David O’Connell in the inquest into the death of Marcia Joyce Loveday (28 October 2013). The coroner seems to indicate his trust on the attending paramedic’s word based on their eARF completed prior to the paramedic’s knowledge a clinical incident had occurred. If we provide a verbal handover it seems we have no supporting evidence unless we also provide timely paperwork.

Without going into specifics, I am also aware of a situation where a hospital in our region placed a high degree of blame onto not identifying a rupturing Aortic Aneurysm on what they claimed was an insufficient verbal handover from the treating paramedic. My understanding is the paramedic’s documentation was used to support their version of events.

I appreciate if you are able to provide some clarity on this. I am concerned that operational needs or KPI’s, are overtaking the reason for our existence of providing a high standard of clinical care.

The Inquest into the death of Marcia Joy Loveday was held on 9-10 September 2013. The coroner’s findings were handed down on 28 October 2013.   Mrs Loveday was 74 years old. She had an extensive history with the Bundaberg base hospital.   In July 2010 she was taken to Bundaberg hospital by ambulance.   There she was given a penicillin injection even though she was allergic to penicillin. Her allergy was noted in the hospital records and she wore a medic-alert bracelet that also recorded her allergy (see ‘Ignoring a medic-alert bracelet’ July 19, 2015)). According to the coroner it was ‘… unclear whether she died as a result of the alleged anaphylaxis or her underlying conditions which caused her to present to the hospital’ [3]. The coroner’s task was to

… determine how and what caused her to die.

Central to these issues are the questions of how Mrs Loveday’s known allergy to penicillin was not made known to, or enquired about by, medical personnel in the Accident & Emergency Department … ([4]-[5])

On the day Mrs Loveday was taken to hospital she had rung 000 complaining of breathing difficulties.   The ambulance officers completed their eARF and it was noted that Mrs Loveday was allergic to ‘Penicillin; >> CECLOR, MINOMYCIN, KEFLEX’ [20].   The Emergency Department Clinical Record recorded under allergies – ‘CECLOR, MINAMYCIN, KEFLEX. Significantly, there is no reference to penicillin in this document’ [29].

An issue arose as to whether or not the paramedics had communicated that Mrs Loveday was allergic to penicillin. The triage nurse said that if they had said that it would have been recorded. The paramedic responsible for the hand over said that she did say it during the oral handover.   The patient was ‘handed over’ at 10.15am. The eARF was finished at 10.52am and ‘included penicillin in the known allergies’ [32]. The coroner said (at [34] emphasis added):

After viewing the ambulance officer and the nurse when giving evidence, I have formed a view that I accept the evidence of the ambulance officer that she told RN Blunt of the allergy to penicillin. I do this because the ambulance officer presented as a person who gave very straightforward evidence, could recall what occurred, and completed the reference to penicillin in her electronic report at about 10:52am that morning before she left the hospital. Of significance is that when the ambulance officer completed the electronic report (essentially as a contemporaneous note), she had no knowledge that Mrs Loveday had suffered a reaction due to her penicillin allergy.

A digression to the rules of evidence

Generally an out of court statement, like an eARF recorded, cannot be used to prove the truth of what it says because it is ‘hearsay’; that is evidence that someone said something is true is not proof that it is true. They have to come to court to give direct evidence of what they saw or heard. There are however exceptions to the hearsay rule. One exception is for business records (Evidence Act 1977 (Qld) s 92).   Business records are admissible on the assumption that they are created in the course of the undertaking in order to record the truth. They would not help the business if they are not accurate so it may be assumed or inferred that they are. Accordingly if the record records that something happened, that is evidence that it did happen; and if there is no record where one would expect one, that is evidence that the thing did not happen.

A patient case sheet is completed for a variety of reasons (see ‘First aid patient records – who and what are they for?’ (January 31, 2015)). The most important reason, in this context, is to ensure continuity of care.   The records would be useless if not correct so one can infer that they are intended to accurately record what happens. If the eARF records some action then that is evidence that the action occurred.

Putting the issue of admissibility aside, where a person has made a contemporaneous note of events they can, when giving evidence, use that note to remind themselves of what happened.   Here the note cannot be given in evidence but it can be used to refresh the witnesses memory. How close in time the writing has to be to be ‘contemporaneous’ would depend on all the circumstances.

These rules are important. It may mean that a paramedic may not need to go to court to given evidence as to what they saw or did as the court could just rely on the patient record. If they are required to give evidence they can use the record to refresh their memory as to what happened which will be important given the delay between the event and the day in court.

None of that is really relevant to my correspondent’s question other than to show that the court places faith in documents produced by ‘an undertaking’ (which would include a health service – see Albrighton v Royal Prince Alfred Hospital [1979] 2 NSWLR 165) and particularly when the notes are ‘contemporaneous’.

Further, it shows that regardless of the issues for continuity of care, accurate records completed at the time may well work in the paramedics own best interests.  As the coroner found, a report completed at the time and before anyone knows there is an adverse event is likely to be accepted over someone’s recollection of what was said or done.

Back to the question

As treating paramedics, what are our legal obligations when it comes to completing and providing timely documentation on a patient we have verbally handed over to hospital staff?  Without considering internal QAS policy on this matter, would a paramedic have a legal stance to refuse an order to attend a new case based on their belief they needed to complete important elements of their care of their current patient (such as medications administered and allergies)?

Paramedics and all health professionals have to act reasonably and in their patient’s best interests.   Current debates around paramedic professionalism include questions of whether paramedics need to transport everyone and whether or not they can leave patients at a hospital. For discussion on these issues see:

The issue in all these cases is a risk assessment. As I said in Paramedics leaving patients in casualty (January 24, 2015):

The question is always about duty and what does one’s duty require. A paramedic owes a duty of care to the person in their care, the ambulance service may owe a duty of care to a person that then rings triple zero but individual paramedics do not. How the reasonable ambulance service responds to that call requires consideration of the resources available, no emergency service can be resourced to meet every contingency so there will be occasions where demand exceeds supply. What this means is that there is a certain amount of ‘first come first served’.   Where a person is being treated by a paramedic that paramedic has a duty to act in their interest. They cannot just leave them because other people are ringing for an ambulance. There is no way of knowing whether the next patient is in a worse, or better, condition than the patient already being treated.

Because of that I would suggest that a blanket rule – leave your patient after 45 minutes, could not be reasonable. But a rule that says ‘you can leave your patient at the hospital if there is no value in staying in order to reasonably free up resources for others’ would be fine.

I would think the same applies with respect to the eARF. To use an example for that earlier post:

If … the person fell during sport and has been transported as there is a question mark over whether they have sprained or fractured their ankle, then one might make a clinical decision that they could wait on the waiting room chairs as well as on the stretcher and they don’t need a paramedic to talk to them and bring them a cup of tea, when other patients who have made their own way to hospital do not get such a service. In that case it may be reasonable to put the patient on the chair, let the triage nurse know and go.

And if there was no significant treatment to record on the eARF there may be little risk in leaving it if the paramedics are being asked to clear for an urgent task. On the other hand, if the patient has a life threatening condition and has received extensive treatment, including drug treatment from the paramedics, then ensuring that is recorded and handed over with the patient to allow their ongoing care is critical.   As noted above the ambulance service may owe a duty to get to other 000 callers as soon as possible, but the individual paramedic has a duty to continue to care for the person who is in their care.   Driving off without completing the eARF may be a remiss as simply dropping the patient at the door of A&E and driving away.

From a lawyer’s perspective, and ‘[w]ithout considering internal QAS policy on this matter’ I would suggest a paramedic has not only a ‘legal stance to refuse an order to attend a new case based on their belief they needed to complete important elements of their care of their current patient (such as medications administered and allergies)’ but an obligation to do so. Failure to do so would be a failure to properly care for his or her patient.

If that causes a delay for some other patient that would be an issue for the ambulance service. If it has a duty, it is a duty to take reasonable steps to manage its resources to provide appropriate patient care and if it fails to do that then any liability would belong to the service, not to a paramedic that was providing care to a patient. (It should be noted however that a person who has to wait for an ambulance cannot sue either the service or the government on the basis that more resources should be diverted to ambulance services and away from some other government priority (Civil Liability Act 2003 (Qld) s 35). The issue will always be did the service make reasonable use of the resources it had, not that the service should have had more resources).

If the paramedic thinks they can safely leave the person without finishing the eARF then they could do that and complete it later. That however creates a further risk. Assume that there is an adverse event – if the record is not ‘contemporaneous’ it will have less value and if there is a disagreement as to what happened, a court is not going to put much faith in a record completed at the end of a shift when a paramedic has seen multiple patients and is likely to forget details of those earlier cases. In that case omissions from the record may also be used to infer that there were omissions in patient care.

What if paramedics are registered?

One of the benefits of paramedic registration would be that paramedics would owe professional duties to their patients and their profession. These duties are independent of the duties they owe their employer. If paramedics were registered they would be in a stronger position to argue that they are not able to ‘clear’ for the next job as they have an independent, professional duty to complete the care for their current patient which must include ensuring an appropriate transfer of care. Part of that transfer must include accurate and complete documentation so that the treating health team have a complete picture of the patient’s history and treatment prior to arriving in hospital.

Conclusion

Paramedics are, or should be, regarded as health professionals. Their duty is not just to taxi people to hospital or provide a service their employer can charge for. Their duty is to provide care for the people they are called to treat as part of the complete health care team. To ensure that others can continue to provide the care that they start, they need to communicate with the health care team what they observed and the treatment already provided. In some cases an oral handover may be sufficient, in others detailed records will be required. It would be my view that a paramedic has a duty not to clear for a job until the handover, including the paperwork is complete, and their employer has a duty to allow them time to complete the paperwork.


Categories: Researchers

CPR success: TV v Reality

3 September, 2015 - 17:19

The Richard Dawkins Foundation for Reason and Science is reporting, via Facebook. a study that shows ‘CPR is depicted on television medical dramas as significantly more successful than it is in reality…’ (see https://www.facebook.com/RichardDawkinsFoundation?fref=nf).   There are many comments to this research including

  1. That it is not ‘new’ because it has been well know for a long time that success rates from CPR are low; and
  2. That they should not publish the data as it may discourage people from attempting CPR and even if success rates are low, they’re better than nothing.

The report actually relates to a study by the University of California reported in Science Daily which reports that the survival rate for people who receive CPR is about 37% with only a 13% long term survival rate. The research was not, however, about survival rates from CPR, but survival rates as depicted on TV. The researchers watched episodes of medical dramas from 2010 and 2011 and found that on TV, 70 of patients who received CPR survived. The research was not reporting on survival rates of CPR but how CPR is depicted on TV.

There can be no argument that data on the survival rate of CPR or other treatment should not be published for fear of discouraging people.   Whatever the survival rates are, they should be identified. The issue for the researchers was that they fear that people who have no exposure to CPR other than via TV will have artificial expectations of what to expect if they are ever called upon to perform it. This may lead to people stopping CPR too early as the patient hasn’t coughed and recovered as they do on TV, or they may feel they have done something wrong if the patient doesn’t recover.

That brings me to my point and why this post is on an law blog. I speak to first aiders, fire fighters and paramedics and the question often arises ‘can I be liable if I attempt CPR but there’s a poor outcome?’   The answer is ‘no’.  As explained often enough, an action in negligence requires:

  1. A duty to act
  2. Failure to act as a ‘reasonable person’ and
  3. The failure causes the damage.

Putting aside the question of whether or not there is a duty to act, let’s assume a person with a first aid certificate attempts CPR perhaps with some poor consequences, fractured ribs and the patient dies.   Even if the family could show that the responder’s technique was less than text book perfect, so what?

They would also have to prove, on the balance of probabilities or, to put that another way, that it is more likely than not, that had the CPR been performed in a text book manner, the outcome would have been different. If the survival rate is 37% then it is more likely than not that even with text book perfect CPR, the patient would not have survived. Any failing in technique did not cause the person to die, it was whatever that caused their heart to stop.

One Facebook commentator said:

As a beach Lifeguard we are told they are dead if you have to do CPR so don’t get your hopes up. I have revived many and not revived 1. It is all about team work and doing your best. What could the do sue you? OH WAIT!

The implication of ‘OH WAIT!” is that they could sue you. Speaking from Australia I remind my readers no-one has been sued for doing CPR and if anyone tries to sue in those circumstances, they’re not going to win.

People being trained in CPR should be given information on success rates so :

  • They actually feel confident to have a go, knowing that doing CPR is better than doing nothing; but
  • They should not have false expectations that CPR will save their patient’s life.

First aiders and others should be reassured that if the patient dies it is not their fault:

  • Less than ideal technique will not be the cause of the person’s death; and
  • The fact that the person died is not evidence that the first aider did not perform CPR appropriately.

The importance of this study is not to do with CPR or survival rates, but the artificial expectations that TV may create. First aid instructors, paramedics and nurses need to keep in mind that people may have unrealistic expectations and that could lead to feelings of guilt in the first aider and, for the surviving relatives, feelings that their loved one has been poorly cared for.

As the study authors conclude:

“The findings from this study emphasize the need for improved physician-patient communication and discussions around advance care planning decisions, such as CPR,” said Jaclyn Portanova, Davis School Ph.D. in Gerontology student and first author of the study. “Without these discussions, patients may rely on misinformation from TV in their decision-making.”

The same is true for first aid instructors who should communicate the reality to their students so they, to, don’t ‘rely on misinformation from TV in their decision-making’ and in their emotional response to the outcome.


Categories: Researchers

Spending brigade money on a social celebration

2 September, 2015 - 00:03

This complex question comes from a NSW RFS brigade.  Without access to detailed financial manuals and delegations this answer must be very general and, as anyone who reads to the end will see, I cannot come to a conclusive answer.   My correspondent tells me that he or she is:

…  a member of a volunteer NSW RFS brigade and we are having issues with the brigade spending money on certain items/activities out of our accounts.

One particular event coming up is a significant brigade anniversary. This event includes the anniversary dinner, internal award presentations at this dinner as well as the invitation of dignitaries such as the RFS Commissioner, Members of government, RFS Senior management and District Management.

This dinner has a fee payable per head. The fee or charge includes a three course meal, non-alcoholic drinks and Coffee/Tea only. It does NOT include any alcohol at all. However there is a bar available if members wish to purchase other drinks themselves out of their own pocket.

We have three monetary accounts:

  1. One which is for profit made from a soft drink fridge and foods
  2. DGR Acc of which donated monies, profit from raffles etc as well as payment for services rendered such as assisting in local events
  3. Investment Acc which consist of DGR monies and other monies that has been invested in term deposits

With  our brigade anniversary coming up soon and would like to use monies from either the DGR or Investment Accounts to partially subsidise the tickets for the members and their partners (50% subsidy), fully subsidise tickets for dignitaries and Life Members of the brigade.

We have been told by word of mouth from brigade senior management that ‘The brigade cannot spend money on such activities as it is public monies’. We have been referred to RFS Service Standard 1.1.16 quoting in particular:

“2.3 A member of the Service may not, under any circumstances, accept or receive any personal remuneration or reward for, or in relation to, any service they provide as a volunteer member of the Service or which are provided by a brigade.”

Another member, who is also the brigade accounts auditor (yearly audit) also refers to public monies not being able to be spent on social functions. However does not provide points of reference or a source further than above. Several of us had done some homework although only utilising the RFS Service Standards of which we found that two of these apply; SS 8.1.3 Ceremonies and Events (Issue date 13 June 2012)

1.2 Ceremonial events strengthen and develop a healthy service culture for members and their families. maintaining the correct ceremonial protocols and procedures sets a standard of respect, pride and acknowledgement necessary each time NSW RFS personnel come together.

2.1 A Ceremony or event may include, but is not limited to any of the following;

(b) Presentation of internally or externally awarded medals to service personnel

(c) Brigade Anniversaries or similar celebratory/appreciation events

(g) Any event where the Commissioner or a member of Parliament is either invited to attend or hosts.

So by our understanding this Anniversary dinner satisfies at least three of the points listed in the whole SS 8.1.3 as a Ceremony or Event listed by the RFS and therefore if it is classified as such would then become a part of an “associated” fire or emergency service activity.

SS 2.1.14 is Management of DGR …………

3.6          Tax legislation provides that tax deductible donations received by brigades can only be used in support of activities that are ASSOCIATED with the brigade’s volunteer-based fire and emergency services activities.

Our undertaking of this SS is that because it states “used in support of activities that are ASSOCIATED with the brigade’s volunteer-based fire and emergency services activities” and also because of the SS I have listed above that this anniversary dinner actually qualifies the brigade to spend DGR monies for such an event.

I would like to reiterate that:

  • There will be no alcohol provided by the brigade or its accounts
  • This Anniversary Dinner is an official brigade function as per the relevant SS

We would appreciate your professional opinion at your earliest convenience.

Service Standard 1.1.16 is headed ‘Fundraising Activities (Provision of Goods and Services)’. Paragraph [1.2] says:

This Service Standard applies to services that may be provided to a third party in the context of brigade fund raising activities.

It goes onto say (at [2.3]):

A member of the Service may not, under any circumstances, accept or receive any personal remuneration or reward for, or in relation to, any service they provide as a volunteer member of the Service or which are provided by a brigade.

In context it appears to me that the Service Standard is referring to a situation where a brigade may, for example, set up at a fete to make the fete more attractive for local children.  The fete organisers may, in return, give a donation to the brigade. That money must go to the brigade but not to the members who are there with the brigade’s appliance.  It is not applicable in this context as this is not a fund raising activity (though it is a fund expending activity).

Service Standard 2.1.14 refers to ‘Management of Deductible Gift Recipient Status for NSW RFS Brigades’.   Rural fire brigades can receive gifts that are tax deductible for the gift giver – that makes the brigade a Deductible Gift Recipient or DGR.  Tax deductible receipts can only be given

… for genuine gifts/donations (i.e. where the donor does not receive a benefit except for the tax deductible receipt). Proceeds of raffles, charity auctions, fund-raising dinners, sponsorships and commercial activities are not deductible gifts/donations.

If that is the case the DGR account should not have ‘profit from raffles etc as well as payment for services rendered such as assisting in local events’ as that income would not be a tax deductible gift.    A gift fund (the DGR account) must not receive any money other than a tax deductible gift (Income Tax Assessment Act 1997 (Cth) s 30.130(1)).

The Income Tax Assessment Act 1997 (Cth) says that money received as a tax deductible gift may be used ‘only for the principal purpose of the fund, authority or institution’ (ss 30.130(2) and 30.130(4)).   ‘Principal purpose’ is not defined but in a web based guide to the law, the ATO gives the following example (<Can you be endorsed as a DGR?> 20 July 2015, accessed 1 September 2015):

A local government council that is a DGR for the operation of its public library sets up a fund for donations towards the annual picnic for its library staff. The fund is not for the principal purpose of the public library and so cannot be a gift fund.

Notwithstanding this general provisions, there are specific provisions regarding donations to funds for fire and emergency services.  A donation is tax deductible if it is made to a fund maintained by a government agency (which must include the RFS; s 995.1 definition of ‘Australian Government Agency’) and:

(b) the principal activity of the entity is the provision of volunteer based emergency services that are regulated by a *State law or a *Territory law;

(c) the fund is established and maintained solely for the purpose of supporting the volunteer based emergency service activities of the entity (Income Tax Assessment Act 1997 (Cth) s 30.102(12A.1.3)).

Running a celebration for a rural fire brigade may not be the brigade’s ‘principal purpose’ but it is ‘in support of activities that are associated with the brigade’s volunteer-based fire and emergency service activities’ (Service Standard 2.1.14, [3.6]).  The brigade members are volunteers, not staff, so their service has to be recognised by means other than salary, and as the RFS recognises, ‘Ceremonial events strengthen and develop a healthy service culture for members and their families’; matters fundamental to maintaining a volunteer brigade (Service Standard 8.1.3, [1.2]).

Service Standard 8.1.3 is headed ‘Ceremonies and Events’ and is supplemented by SOP 8.1.3 – 1 ‘Conducting Ceremonies and Events’.  If the RFS is going to have a service standard and SOP on ceremonies, it stands to reason that it is expected that ceremonies will be held, and will be paid for.   Unfortunately neither the Service Standard nor its SOP make reference to how the events will be funded.

Application

The RFS accepts, even encourages, ceremonies such as a brigade anniversary celebration.  I can see no objection to spending brigade funds that have been raised by selling ‘from a soft drink fridge and foods’ or money raised by raffles or other approved fund raising activities provided it wasn’t said that the funds were being raised for a particular purpose.  If, for example, a raffle was run in order to ‘raise funds to buy a new pump’ then the funds should be spent only on that new pump.  If however the raffle is for the benefit of the Kickatinalong Rural Fire Brigade then the funds can be spent on any legitimate purposes of the brigade which must include a brigade celebration held in compliance with Service Standard 8.1.3.

If the money has been paid as a tax deductible donation then it must be spent ‘only for the principal purpose of the fund, authority or institution’.  The principal purpose of the RFS may be fire fighting but a legitimate purpose of a DGR fund includes ‘supporting the volunteer based emergency service activities’.  Minds may differ on what that means.  I would have no problem in saying that includes a celebration held in compliance with Service Standard 8.1.3 but others may take a different view.    If the money is spent on a celebration and someone alleges that is a breach of the tax laws they would have to satisfy a court that this activity was outside ‘activities that are associated with the brigades volunteer-based fire and emergency service activities’.   If the RFS wants to take a cautious view they can determine that those funds cannot be spent that way.    It may be that the RFS has direction from the Treasury which they too must comply with.

Conclusion

Without access to treasury and RFS financial policies and delegations I am not able to reach a definitive conclusion.  It would be my view however that:

  1. Unless money has been solicited for a particular purpose, money raised by selling drinks and food from the station fridge, as well as money raised by raffles and other fund raising could be spent on a celebration that is conducted in accordance with Service Standard 8.1.3.
  2. Money that has been received as a tax deductable donation, again assuming it was not given for a specific purpose, must be spent ‘for the principal purpose of the fund, authority or institution’.  I am unable to resolve whether that would extend to a ‘celebration’.  To answer that the RFS or the brigade would need to seek advice from a specialist tax lawyer or accountant.  Of course if the RFS has a policy position, the brigade would need to comply with that policy determination.

What’s to be done?

The members of the brigade should not rely on ‘word of mouth’.  No doubt there is a process to raise the matter with senior management and get a definitive ruling either from them or RFS head office as he RFS can, if need be, seek advice from its lawyers or financial managers.  Once an answer is obtained it must be honoured.


Categories: Researchers