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Discussion on the law that applies to or affects Australia's emergency services and emergency management, by Michael Eburn, PhD, Australian Lawyer. Email: meburn@australianemergencylaw.com
Updated: 11 hours 50 min ago

Use of methoxyflurane in first aid

11 March, 2019 - 20:57

Today’s question comes from a person

… qualified in occupational First Aid Skill set and provide pain management (penthrox and Paracetamol) I was wondering in what setting I am allowed to carry Penthrox?  I would ideally like to have this as part of my cars first-aid kit. is this legal? Can I use it in a general first aid environment?

(“Methoxyflurane, marketed as Penthrox among others, is an inhaled medication primarily used to improve pain following trauma.”)

Appendix C to the Poisons and Therapeutic Goods Regulation 2008 (NSW) sets out various exemptions and authorities for drugs.   Clause 9 says:

9 GENERAL FIRST AID

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 is authorised to possess and use methoxyflurane and nitrous oxide if required in connection with the carrying out of first aid.

The problem is that the Occupational Health and Safety Act 2000 (NSW) has been repealed and replaced by the Work Health and Safety Act 2011 (NSW).  The Occupational Health and Safety Regulation 2001 (NSW) r 20 referred to first aid certificates approved by WorkCover. There are no such provisions in the 2011 Act or the Work Health and Safety Regulation 2017 (NSW). It follows that it is simply unclear who, if anyone, is authorised by cl 9.

SafeWork NSW (https://www.safework.nsw.gov.au/safety-starts-here/safety-overview/first-aid-in-the-workplace) says:

In 2018, Safe Work Australia amended their model Code of Practice: First Aid in the Workplace, bringing significant changes to what emergency medication/s can be stored in workplace first aid kits. SafeWork NSW supports these changes and recommends workplaces review their first aid needs and what medication/s may be required so that workers with medical conditions such as asthma or allergies have access to immediate care and treatment…

Asthma-relieving inhalers and spacer devices can now be included in workplace first-aid kits where required…

Epinephrine auto-injectors (commonly called epi-pens) to treat anaphylaxis and severe allergies can also now be included in workplace first aid kits where required…

However ‘To have legal effect in a jurisdiction, the model Code of Practice must be approved as a code of practice in that jurisdiction’ (SafeWork Australia, Model Code of Practice: First aid in the workplace https://www.safeworkaustralia.gov.au/doc/model-code-practice-first-aid-workplace; see also Work Health and Safety Act 2011 (NSW) s 274).  The NSW regulator (SafeWSork NSW) lists as its code of practice the First aid in the workplace code of practice (July 2015).  In short changes to the model code of practice are not law in NSW even if SafeWork NSW supports them, unless and until the amendments are adopted as law in New South Wales.  Further the 2018 model code of practice says:

However, workplaces may consider including an asthma-relieving inhaler and a spacer to treat asthma attacks and epinephrine auto-injector for the treatment of anaphylaxis or severe allergies. These should be stored according to the manufacturers’ instructions and first aiders should be provided with appropriate training.

Even if that was adopted in New South Wales it would not be an authority under the Poisons and Therapeutic Goods Regulation 2008 (NSW).

The problem that I have is r 170 which says ‘The Director-General may issue authorities for the purposes of the Act and this Regulation.’  The Director-General may have issued some general authority to allow people with certain qualifications to use methoxyflurane. The problem is that, unlike authorities given in Appendix C, authorities issued by the Director-General are not publicly available, so I don’t know what authorities have been issued or to whom.

Conclusion

I cannot see any current authority to allow a person with an occupational first aid certificate to carry methoxyflurane even though that authority did exist prior to the implementation of the Work Health and Safety Act 2011 (NSW) and the 2017 regulations.  As currently advised a person qualified in methoxyflurane cannot actually carry and use those drugs.

I would welcome any advice from anyone who can point to some relevant authority to the contrary.

Categories: Researchers

Does a nurse have to do a remote area first aid course?

28 February, 2019 - 13:35

Today’s question comes from a person who

… works as a guide in remote areas for some time where the industry standard of first aid is a remote area or wilderness first aid certificate. I have recently hired a guide who is still a registered nurse, is she required to gain the same first aid certificate or can I recognise her current qualifications as being sufficient.

I assume that working as a guide means guide paying customers, in which case this is a business or undertaking and the work health and safety laws apply (I’ll also assume we’re not talking about WA or Victoria where the 2011 Act has not been adopted but the answer wouldn’t be any different).  I’ll use Queensland as my example.

The modern focus in WHS law is risk assessment.  The PCBU (the person conducting the business or undertaking) is required to do a risk assessment to determine what first aid facilities are required (Work Health and Safety Act 2011 (Qld) s 19; Work Health and Safety Regulation 2011 (Qld) r 42; Workplace Health And Safety Queensland First aid in the workplace Code of practice 2014).    As my correspondent says ‘I have recently hired …’ I’ll assume that they are the PCBU or own the company that is the PCBU.

As the PCBU it is up to my correspondent to do a risk assessment to determine what first aid equipment is necessary and what training is required for workers who will be called upon to do first aid.  If the conclusion is that what is required is the skills contained in ‘a remote area or wilderness first aid certificate’ then it would be necessary to do an assessment of the new employees skills and competencies to determine if she has the necessary skills.

The WHS legislation has moved away from the idea of ‘you must have this ticket’ to ‘you must have the skills that are required’ so the question is what has the new guide been doing?  If she has, until recently, been a remote area nurse with the RFDS or working in a remote community, or part of international aid deployments you, as the PCBU may conclude that she has all the relevant skills and knowledge.  If she’s been working in an urban medical practice as the practice manager and giving children immunisations, you may think that she doesn’t have the relevant skills and knowledge.    If there is an RTO that offers ‘a remote area or wilderness first aid certificate’ they may be able to assess the person’s knowledge and skills and award the certificate recognising their prior learning.

Conclusion

It is not the case that a nurse knows all there is to know about first aid and therefore registration as a nurse ‘outranks’ in terms of skills a remote area or wilderness first aid certificate.  But nurses do have relevant skills, knowledge and experience.  As the PCBU it is up to you to determine what training is required to meet the risks of your undertaking and then determine whether this person has the necessary skills.

Categories: Researchers

Paramedic responsibility for trainee conduct

28 February, 2019 - 10:32

A paramedic with NSW Ambulance has a question regarding

… the legal standpoint with unregistered trainee paramedics operating under our guidance if they do something wrong after being told to do it a different way causing an adverse outcome.

This comes back to the issue of vicarious liability.  When someone rings for an ambulance they want an ambulance provided by the service that they rang, in this case NSW Ambulance. The caller has no control over who is in the ambulance or their level of clinical skill and the caller has no personal relationship with those paramedics.  The caller has either rung triple zero or the ambulance service and it is the ambulance service that has responded.

Everyone who gets out of the ambulance is there representing ‘NSW Ambulance’ and NSW Ambulance is responsible for the level of clinical (and other) care that the patient receives.  It follows that if there is a question of liability for an adverse outcome, it will fall to NSW Ambulance not the trainee nor the supervising paramedic.

But there are now, also, professional obligations.  A paramedic must not engage in ‘[c]onduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of the practitioner’s profession is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience’ (Health Practitioner Regulation National Law (NSW) s 139B).  A failure to adequately supervise or instruct a trainee paramedic could fall within that definition but that would be more relevant where a trainee does ‘something wrong’ and the supervising paramedic does not correct them, rather than the scenario described above.

A registered paramedic also has obligations to report inappropriate practice.  In particular a paramedic needs to report another health practitioner who has ‘placed the public at risk of harm because the practitioner has practised the profession in a way that constitutes a significant departure from accepted professional standards’.  They are also required to make a report if ‘a student has an impairment that, in the course of the student undertaking clinical training, may place the public at substantial risk of harm’ (s 141).  A prudent paramedic would also report to his or her employer or the student’s education provider if the student, although not impaired, is practicing in a way that is dangerous and where the student is refusing to accept correction or instruction as to his or her technique or procedure.

The health professions have always relied on practitioners to train students, it is one of the hallmarks of being a profession and certainly a hallmark of the health professions.  No doubt trainee medical and nursing students (and others) have made mistakes and even caused adverse outcomes for patients.  The supervising practitioner can only have legal consequences if the supervision has been inadequate, that is if they have allowed students to treat patients in a way that is beyond their skill level or having observed inadequate or inappropriate treatment have failed to take steps to correct it.  That being the point of being a supervising trainer, to correct the trainee’s errors to ensure that when they finish training, they are competent.

Where the supervising trainer observes a trainee doing ‘something wrong after being told to do it a different way causing an adverse outcome’ the obligation of the trainer would be to again correct the trainee, depending on the nature of the adverse outcome and its seriousness report it.  That may involve reporting it to the ambulance service so they can take action to advise the patient (see NSW Health, Open Disclosure Policy (3 September 2014)).  It may involve reporting it to other carers, eg the hospital staff where the patient is transported to hospital, as the cause of the adverse outcome is part of the relevant medical history that they need to have in order to treat the person.  As noted where the student refuses to accept instruction or correction then that needs to be fed back through the process of the ambulance service and the education provider that should have some way for supervisor’s to report on student progress.

But will the supervising paramedic be responsible in some legal way simply because there is an adverse outcome?  No, that is not the law.  Bad outcomes are not, in any legal rule, the sole determinant of liability whether that’s liability to pay damages, criminal liability or professional responsibility. If the supervisor has been actively engaged in supervision and corrected a student who still does the wrong thing, then the supervisor has behaved as one would expect ‘a practitioner of an equivalent level of training or experience’ to behave.  And no-one, who is not an employer, is responsible for the negligence of others.

Categories: Researchers

Fatigue management for WA ambulance volunteers

26 February, 2019 - 10:40

Today’s question comes from WA where

… volunteers [are] called to do outstanding jobs with SJA WA in sub centres which are manned by Paramedics and Volunteer Ambulance Officers. In many instances these volunteers are completing these outstanding jobs in the very early morning from midnight onwards. These volunteers subsequently start their paid employment shortly after.

SJA have the option to use paramedic crews instead of volunteers but will always try and utilise a combined crew of 1 Paramedic and 1 volunteer. My question is regarding fatigue management. Does SJA have any obligation to implement a fatigue policy for volunteers? Also, what potential consequences could arise if a fatigue related incident was to happen at their normal employment environment?

The answer has to be that there is some obligation, but defining what how that obligation may be met is much more complex and nuanced.  Western Australia has not yet adopted the 2011 model work health and safety legislation, so the relevant Act is still the Occupational Health and Safety Act 1984 (WA).   The OHS model regulates the relationship between employee and employer and a volunteer is not an employee.   An employer is however required to limit risks to non-employees.  Section 21 says:

An employer or self-employed person shall, so far as is practicable, ensure that the safety or health of a person, not being (in the case of an employer) an employee of the employer, is not adversely affected wholly or in part as a result of —

(a) work that has been or is being undertaken by —

(i) the employer or any employee of the employer; or

(ii) the self-employed person;

or

(b) any hazard that arises from or is increased by —

(i) the work referred to in paragraph (a); or

(ii) the system of work that has been or is being operated by the employer or the self-employed person.

To put that into plain English, SJA is an employer so it must ‘so far as is practicable’ take steps to ensure that the safety or health of volunteers is not adversely affected by the work of SJA.

What is practicable is what is:

… reasonably  practicable  having regard, where the context permits, to —

(a) the severity of any potential injury or harm to health that may be involved, and the degree of risk of it occurring; and

(b) the state of knowledge about —

(i) the injury or harm to health referred to in paragraph (a); and

(ii) the risk of that injury or harm to health occurring; and

(iii) means of removing or mitigating the risk or mitigating the potential injury or harm to health;

and

(c) the availability, suitability, and cost of the means referred to in paragraph (b)(iii);

The work of St John Ambulance (WA) (and any jurisdictional ambulance service) must, of necessity, expose all ambulance officers to risk – whether that is a risk of physical injury or psychological injury given the nature of the work.  The duty under OHS law is not to ensure that there is no injury.  If that was the legal obligation the way to achieve that would be to cease operations. St John could protect its volunteers by not having volunteers and could protect its staff by refusing to operate an ambulance service, but that is not practicable.

Australia’s emergency services depend on volunteers and the fact that they volunteer as well as have other lives is always an issue but that does not mean the services cannot use volunteers but indeed they need to be aware of the risk created by their work and work environment.

The question then is what is the risk of fatigue – how likely is it to arise and what might the consequences be and given that the service has to operate and does depend on volunteers how can that be managed?  The push in OHS legislation is to put the burden of assessing and managing the risk on the employer (in WA) or on the Person Conducting the Business or Undertaking (the PCBU) in those jurisdictions that have adopted the 2011 model legislation.  What that means is that there are multiple ways to address the issue all of which may be acceptable.

Anyone with experience with volunteers in the emergency services know that volunteers join to perform the emergency function so everyone wants to turn out to every job and stay as long as they can.  Some solutions may be to have a roster so people are stood down and the same people are not relied on each night, monitoring how long people have been ‘on duty’ and require them to stand down after a ‘reasonable’ period.  Critically in the context where people have to work the next day is making sure there are process to allow people to manage their own fatigue so that they can take themselves ‘off line’ if they need to (recognising they can’t do that if they are already responding to the task).

What the service cannot do is assume that all volunteers do have a 9-5 Monday to Friday job and then dictate to them what is in their best interests.  People may volunteer for these tasks because they can so one cannot assume that all ‘volunteers subsequently start their paid employment shortly after’ or what their employer’s attitude is.  That is part of allowing volunteers to manage their own situation and to be allowed to determine for themselves whether they are, or are not available tonight on their knowledge of what they have to do tomorrow.

Equally, assuming there is an implied sub-text that a service like SJA should not use volunteers after midnight, that cannot be inferred from the OHS obligations.  One has to take into account the risk and what can be done about it and that in turn takes into account cost.  Emergency services have to operate within their resources and we have volunteers because Australia could not afford to employ all the emergency service personnel it needs.  And there are benefits in having trained volunteers within resilient communities.  There will be times where the workload of a service dictates that a paid crew is required, and other services will determine that volunteers can meet the demand even though managing volunteers brings its own challenges including that volunteers have to fit their volunteering around their work and other life demands – see Paramedic Service levels in WA (February 22, 2018).

As for a fatigue related incident at the volunteer’s workplace the potential consequences depend on all the circumstances.  The primary obligation is on the volunteer/employee ‘to ensure his or her own safety and health at work’ (Occupational Health and Safety Act 1984 (WA) s 20).  If he or she is fatigued to the point of being a risk to health and safety then it would be incumbent upon him or her to let the employer know and take sick, or annual or emergency services leave as available and in accordance with their leave provisions.  It would be incumbent upon a volunteer to also determine if he or she is available on any given night as they know what demands they are likely to face the next day.

Could there be legal consequences for SJA? The answer is ‘yes there could’; like any employer they would, if challenged, have to show that they have met their obligation under s 21 but that does not mean having no volunteers.  It means doing a risk assessment and applying reasonable measures in response to that risk. There could be many, equally acceptable, outcomes to that process.  It is not axiomatic that it would mean not having volunteers respond after midnight.

For a related post, see Fatigue management for volunteers with QAS (April 26, 2016)

 

 

 

Categories: Researchers

Record keeping and report writing

13 February, 2019 - 23:14

Today’s correspondent has two

… (semi-related) queries –

Question 1

First query pertains to Patient Care Records for Paramedics when treating someone OUTSIDE of work. I understand that it would be a relatively rare occurrence, however if you were to assess / treat someone (whether it be a family member, friend or other individual) in a private / alternative setting (for instance, at their private residence or in an austere environment with prolonged arrival times for emergency services) would you be required to document your assessment and treatment of the patient? Is there a legal obligation to create and maintain these records?

I’m excluding instances where one might provide “emergency assistance” e.g. Assisting in a cardiac arrest or at a motor vehicle collision. I’m purely interested in whether assessing and treating an individual at their request (as they may know you are a Paramedic) OUTSIDE of work would require appropriate documentation for patient safety and legal reasons.

Question 2

The second question pertains to Registered Healthcare professionals signing / writing “medical” certificates. I’ve had a lot of people jokingly ask me for sick notes to get a day off of work. Other than the clear ethical issues in providing friends and family with these certificates (even with full assessment and honest clinical judgement), I was wondering what abilities registered healthcare professionals have in regard to providing these certificates. I understand that medical certificates must be written by a registered medical practitioner, so obviously Paramedics cannot sign these – however theoretically could a Paramedic sign an alternative (Paramedical) form stating that they were assessed by a Registered Paramedic and deemed unfit for work for that day?…

(I’ve edited the question to make it shorter, but I assure you the correspondent is not saying they want to write medical certificates so there is no need for comments about someone overreaching or wanting to get themselves into trouble – it’s a ‘what if’, not ‘may I’ question).

Question 1

There is no legal obligation to keep a record, but it’s good practice – the old adage is ‘good records, good defence; bad records, bad defence; no records, NO defence’.    Written away from work, notes made at the scene will not be a business record so cannot be tendered into court to prove that the very things recorded really did happen.

That is the case with say patient records created in the course of employment – a court can trust them to record what did (and not record what did not) happen otherwise they would be of no value to the business.  You can then rely on them, later, so a witness may say ‘I can’t recall what I did but the patient record says I administered drug x and that is evidence that I did in fact administer drug x’.

Records, written at the time or immediately afterwards – contemporaneous notes – may be used as an aide memoir.  Later down the track when asked what happened you may answer ‘I can’t recall but if I read my notes that I wrote at the time, then that does help me remember and now that I have read them, I can recall that I did ….’ Or ‘I can’t recall but this is what I wrote …’

For more information see Michael Eburn, Emergency Law (3rd ed, 2010, The Federation Press) pp. 18-20 (and yes there is a 4th ed, but at the time of writing this post, I can’t put my hand on a copy of the 4th ed, but the page numbers will be something similar – chapter 1 in any event).

The Code of Conduct (Interim) for paramedics, issued by the Paramedicine Board in paragraph 8.4 discussed health records.  It starts with ‘Maintaining clear and accurate health records is essential for the continuing good care of patients or clients’ but that is only relevant if the paramedic is writing notes to pass onto to other members of the health care team, eg patient records of treatment en route that will be handed to hospital casualty staff.  Keeping a note of what you did that you don’t intend to pass onto anyone else is not quite the same thing.

Conclusion on Question 1

The real issue is whether in assessing someone the paramedic is practicing their profession – ie actually in some form of business and client/practitioner relationship or not.  If they are then like any health practice, they should keep records.  If they are not, and I don’t think having a family member or friend ask ‘what do you think about this…’ is practicing the profession, then it’s a good idea but not legally required.

(For professional practice you look for:

… evidence of continuity, of repeated acts; one would look for evidence of payment for those acts; one would look for evidence of seeking business from members of the public, or at least from other [practitioners]; one would look for evidence of a business system; one would look for evidence of maintaining books and records consistent with the existence of a practice; one would look for evidence of a multiplicity of clients.

Legal Services Commissioner v Bradshaw [2009] LPT 21, Fryberg J cited in Michael Eburn ‘Registered paramedics, insurance and first aid – looking for coherence in law’ (2019) 16 Australian Journal of Paramedicine DOI: https://doi.org/10.33151/ajp.16.663)).

Question 2

A paramedic can write and sign a Paramedic Health Certificate.  I could write and sign a certificate saying I examined someone, and, in my view, they are not fit for work or school.  It’s not a question of whether you can do it, it’s a question of whether anyone else has to believe it or accept it.  I could write a certificate but unless it’s addressed to the head of my infant child’s school and relates only to the health of my infant child, my certificate is meaningless.  It may record that I actually did examine the person and it may record my actual and honestly held opinion, but who cares?

The Fair Work Act 2009 (Cth) s 352 says:

An employer must not dismiss an employee because the employee is temporarily absent from work because of illness or injury of a kind prescribed by the regulations.

Regulation 3.01 of the Fair Work Regulations 2009 (Cth) says:

A prescribed kind of illness or injury exists if the employee provides a medical certificate for the illness or injury, or a statutory declaration about the illness or injury…

within certain time frames.  A medical certificate is ‘a certificate signed by a medical practitioner’ that is ‘a person registered, or licensed, as a medical practitioner…’ (s 12).  Not a paramedic, and not a pharmacist.  Accordingly, if a doctor writes a certificate that you have a ‘prescribed kind of illness or injury’ then that is evidence that you do indeed have that illness or injury and the employer cannot sack you.  A paramedic certificate is not relevant evidence (though the employer may choose to accept it).

I do note that pharmacists are issuing ‘absence from work’ certificates. The Pharmacy Guild says (at https://www.findapharmacy.com.au/our-services/absence-from-work-certificates)

Under the Fair Work Act 2009, pharmacists have authority to issue Absence from Work Certificates to people covered by the Act as proof of legitimate absence from work.

But I can find nothing in the Act or its regulations the specifically refers to pharmacists.

The Guidelines for pharmacists issuing certificates for absence from work (October 2010) have been updated (see https://www.psa.org.au/updated-guidelines-released-on-absence-from-work-certificates/) but I can’t find the 2018 guidelines online.   The 2010 guidelines say:

Under the current system of industrial law, employees can be required by their employer to provide certificates to verify certain absences from work…

A pharmacist’s certificate has to be able to “satisfy a reasonable person” of the relevant condition necessitating an absence from work (see s. 107(3) of the Act).

Section 107(3) says:

An employee who has given his or her employer notice of the taking of leave under this Division must, if required by the employer, give the employer evidence that would satisfy a reasonable person that…

the leave has been taken for a legitimate purpose.  The section appears in Division 7—Personal/carer’s leave, compassionate leave and unpaid family and domestic violence leave.  One of the grounds for paid personal leave is ‘because the employee is not fit for work because of a personal illness, or personal injury, affecting the employee’ (s 97).  I can see that a pharmacist’s certificate could be ‘evidence that would satisfy a reasonable person that’ the person that the certificate relates to was in fact sick, but I cannot see that there is any obligation upon an employer to accept it.

The Pharmaceutical Society of Australia says ‘While issuing absence from work certificates is within the scope of practice for pharmacists, they must comply with strict guidelines recognised by Fair Work Australia…’ (https://ajp.com.au/news/can-issue-sick-note/) but I can find nothing on the Fair Work Australia site to confirm that guidelines have been issued or adopted by them. Benedict Brook, journalist, reports in her article ‘$20 sick notes slammed’ (Daily Examiner (Online) 8 March 2018) that:

EMPLOYERS are increasingly concerned at the growth of paid-for sick notes which they say are being handed out like headache tablets in some pharmacies.

The so-called “absence from work” forms are available from major pharmacy chains and can be used in place of traditional sick notes from GPs…

But Innes Willox, Chief Executive of peak employer organisation the Australian Industry Group (AI Group) told news.com.au some bosses would be sceptical of notes obtained from a chain store pharmacy.

Pharmacists are not doctors and the Fair Work Act makes no reference to them being appropriately qualified to issue medical certificates for the purposes of personal/carer’s leave entitlements,” Mr Willox said.

“Many employers are likely to take the view that they are not satisfied with certificates obtained from pharmacists.”

The forms issued by pharmacists make no mention of the ailment the person is suffering from, simply the time frame for which the sick note is valid.

The Pharmacists Code of Conduct, issued by the Pharmacists Board, says (at [8.8])

The community places a great deal of trust in practitioners. Consequently, some practitioners have been given the authority to sign documents such as sickness or fitness for work certificates on the assumption that they will only sign statements that they know, or reasonably believe, to be true.

The Code of Conduct does not say by whom, or on what authority, pharmacists have been given this authority.

I agree with Mr Willox as quoted, above.  The Fair Work Act does not refer to them (see also Fair Work Australia ‘Notice & medical certificates’ (Page reference No: 1898)).  In short, an employer cannot sack an employee who has a medical certificate (s 352) and must pay a person for their sick leave if they have ‘evidence that would satisfy a reasonable person that…’ the leave has been taken for a legitimate purpose (ss 97 and 107) and that evidence may be a certificate from a pharmacist.

Equally an employer may accept that a certificate from a paramedic is sufficient evidence that a person really was sick.  For example, an employee may say that he or she was unable to be at work as they were sick and rang an ambulance, but the paramedics treated on site but did not transport- and they might tender the ambulance record as proof of that attendance.  And that may be accepted for sick leave purposes.

‘[I]ssuing absence from work certificates is within the scope of practice for pharmacists’ (https://ajp.com.au/news/can-issue-sick-note/ and Pharmacists Code of Conduct) and it could, in due course, become part of a paramedic’s scope of practice.  Until it does a paramedic could write a note saying that they examined someone and formed the view that the person was ‘not fit for work because of a personal illness, or personal injury’.  Whether an employer (and if push came to shove, Fair Work Australia) would accept that this was ‘evidence that would satisfy a reasonable person that’ the person was indeed not fit for work remains to be seen.  At least initially, an employer could accept that, or reject it, it would be up to them.

Paramedics do of course write reports in their patient records and these are useable to prove the facts recorded – that the paramedic formed the view that the person had a certain injury or illness, that various treatments were administered and, perhaps, how they were injured (but see Lithgow Council v Jackson [2011] HCA 36 (28 September 2011) (October 5, 2011)).  That information may be in a patient care record or a statement later given to police or legal advisor’s in any dispute between the patient and the person who is alleged to have caused their injuries.  That is a certificate as much as a form ‘Absence from Work’ certificate.

Certificates may be required for other reasons, to seek an extension on assignments, to demonstrate eligibility for a social security benefit, to get a parking permit etc.  Whether the certificate has to be signed by a doctor or other evidence is acceptable would depend on the legislation (for example Fair Work Regulations 2009 (Cth) r 3.01 that requires a medical certificate) and the attitude of the decision maker if there is no strict requirement (as in Fair Work Act 2009 (Cth) s 107 that only requires ‘evidence’).  Where all that is required is ‘evidence’ it is up to the decision maker to decide if a certificate signed by a paramedic is acceptable.

Conclusion on question 2

Writing a certificate is no more than writing a letter setting out the author’s honest opinion.  It may say ‘this person is not fit for work’ or it may say ‘I examined the person, I did these tests…, I observed these things …, I formed the opinion that they had this illness or injury and, on that basis, I formed the opinion that they are not fit for work’.  It doesn’t really matter whether it is written as a letter or filled out on a notepad of form certificates.  Regardless of the detail it should report the honest opinion of the letter writer.

It stands to reason that a paramedic can write a letter, or a certificate, reporting his or her opinion.    Whether anyone would accept it as evidence that the person was, in fact, not fit for work and therefore entitled to paid personal leave is quite another matter.

Categories: Researchers

Breaking, enter and take AED?

13 February, 2019 - 21:02

Today’s correspondent attended a

… recent paramedic Continuing Education Program course [where] there was a discussion about bystander first aiders and AEDs; and a story was told about an unfortunate situation where there was a cardiac arrest almost directly outside a business, with an AED visible through a glass door, but being a weekend the place was locked so the AED was inaccessible by the bystanders performing CPR. Hypothetically, in that situation, would said bystanders be covered by the principle of necessity to break into said business and “steal” their AED to use prior to the arrival of the paramedics? If a bystander was to follow that course of action, what would be the reasonable steps to take before and after doing so?

I think in essence that the bystander would be covered by the principle of necessity – in much the same way as breaking the door to access the patient.  To quote from an earlier post – The doctrine of necessity – Explained (January 31, 2017):

The starting point for most cases appears to be Stephen’s Digest of the Criminal Law (1st ed, 1887).   He said:

An act which would otherwise be a crime may in some cases be excused if the person accused can show that it was done only in order to avoid consequences which could not otherwise be avoided, and which, if they had followed, would have inflicted upon him or upon others whom he was bound to protect inevitable and irreparable evil, that no more was done than was reasonably necessary for that purpose, and that the evil inflicted by it was not disprortionate to the evil avoided. The extent of this principle is unascertained.

In R v Davidson [1969] VR 667 Menhennit J said ‘The principle of necessity as stated by Stephen contains within it the two elements of necessity and proportion’.   The accused has to believe, upon reasonable grounds, that it is necessary to take the action and that the harm done is not disproportionate to the harm to be avoided.

You have to believe it is necessary to enter the premises to get the AED and the harm done (breaking the window) is not disproportionate to the evil avoided – of course the evil avoided is not ‘death’ as you cannot know when you break the window whether the patient will die, but that is what you are trying to avoid.  If ‘… In principle, there seems no reason why the common law should not recognise an exemption from liability to pay damages for trespass to goods’ where a person takes ‘ reasonable steps on an occasion of urgent necessity to remove that property out of the way of danger or safeguard it’, but by doing so damages it (Proudman v Allan [1954] SASR 336) then there can be no liability where the damage to goods is done to save a life.  As I also said in that earlier post:

When the damage to property is necessary to save life, greater damage may be done that would be justified “to prevent mere damage to property” (Watt v Hertfordshire County Council [1954] 2 All ER 368; See also Rigby v Chief Constable [1985] 2 All ER 985, 994).

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

It raises the ethical question of whether one can steal to save a life.  If you needed life saving drugs can you steal them for the pharmacist?  Is it an offence to steal a ‘loaf of bread’ if your ‘sister’s child is close to death’ (Les Miserables (the musical, not the book)).  Generally, the law, as I understand it, say that it is.  We are under no duty to rescue a stranger, so we do not have to allow our goods to be stolen.  Whether there is any change to that we do not need to consider, as the person taking the AED is not planning to steal it that is deprive the true owner of it.  They know it belongs to the company and never intend to take ownership of the AED, just use it for the purpose intended.

As for criminal offences, often referred to as ‘break and enter’ that is usually a shortcut. If we take NSW as an example there are offences of (Crimes Act 1900 (NSW)):

  • Breaking out of dwelling-house after committing, or entering with intent to commit, indictable offence (s 109);
  • Breaking, entering and assaulting with intent to murder etc (s 110);
  • Entering dwelling-house (s 111);
  • Breaking etc into any house etc and committing serious indictable offence (s 112); and
  • Breaking etc into any house etc with intent to commit serious indictable offence (s 113).

The business in the hypothetical is not a dwelling house so ss 112 and 113 are relevant as they refer to a ‘dwelling house or other building’ but even so one has to break in (or out) as part of committing a serious indictable offence.  The ‘breaking and entering’ is not the offence it has to be coupled with your motive or intention – you intend to or do commit a serious indictable offence such as assault, larceny (stealing), robbery (stealing from a person), sexual assault, murder etc.  Breaking in to get an AED to save someone’s live is not breaking in AND committing a serious indictable offence nor is it breaking in with intent to commit serious indictable offence.

What should the bystander do before and after breaking in an grabbing the AED?  First consider is it a proportionate response? How far away is an ambulance?  The time it takes to work out how to break in (which I suspect is harder than it sounds) takes a person away from the scene who could be doing CPR and/or calling triple zero.  If you are the only person there you would be better off doing either or both of those things before attempting to break a window that no doubt has been designed NOT to be broken (at least no broken easily).    And remember the rules of first aid – the first issue is Danger to yourself – and trying to break into a secured people is not without its risk of injury.

If the person does manage to break in, the need to ring the police and stay and give them a statement as to how and why they did it. They might expect a bill.  Necessity is a defence which means if the property owner (or their insurer) chases the good Samaritan for the cost they may be able to defeat the claim, but it doesn’t mean the property owner (or their insurer) won’t try it on. The good Samaritan would no doubt raise the principle of necessity and the relevant good Samaritan provisions in that state or territory, but even if they come out with a win it doesn’t mean they won’t have to argue the point with the insurers and maybe even argue it in court.

Conclusion

In principle I’m sure the doctrine of necessity would justify breaking into a building to grab an AED where a person is having a cardiac arrest outside the building. But the reality is that this is probably much harder to do than it sounds, and the time and effort taken may be better spent on being another person to do CPR.

The situation would be more real if, for example (and for whatever reason) the AED was in a locked cupboard or cabinet, for example if some business thought they had to restrict access to the AED only to their first aid officers.  In that case, go for it.

 

 

 

 

Categories: Researchers

RFS operating ‘out of area’

11 February, 2019 - 06:55

An earlier version of this post appeared on 5 February 2019.  After posting it my correspondent gave further details. In legal analysis the law’s not usually the issue, rather the issue is the law’s application to particular facts.  The facts make all the difference.  With more context, I deleted the original post and replace it with this one.

Today’s question concerns intra-state boundaries (within NSW) and the:

… powers of Brigade Officers (field and permit officers) within their Brigade area and the legitimacy of their ‘powers’ if that area extends outside of the LGA [Local Government Area] in which that brigade has been formed.

For example, a District/Team/Zone (DTZ) is generally aligned with Local Government boundaries. A Fire Control Officer (FCO) is appointed by the Commissioner to look after that DTZ. The brigades within that DTZ are therefore under that particular FCO’s authority, and I would assume that the delegation of powers under the Rural Fires Act 1997 via appointment as a Field or Permit Officer, would only be applicable to the LGA, regardless of any area of the Brigade which extends beyond this line.

My concern is in two parts:

  1. That a volunteer may be liable for damages where they believe to be operating under Division 3 of the Act but those powers potentially do not extend beyond the LGA line;
  2. That permits issued in this overlapping area are not valid as they have not been issued under the authority of the appointed FCO for that specific DTZ (RFS Service Standard 4.2.2 Fire Permits 2.4 (c))

I know that this is a very black & white view of the subject and that if a case like this was brought before a court, an area of grey might be applied; however on the face of it, would there be legal implications that RFS FCOs and Officers should be made aware of?

The answer has to be that the Rural Fire Service is the NEW SOUTH WALES Rural Fire Service.  It may be arranged in ways to coordinate with Local Government Boundaries but that in no way is going to limit the operations of the service or its brigades.  The division of the Service into areas for brigades, groups of brigades, districts, zones and regions is for the administration of the Service not to restrict operations. A brigade has a defined area of operation (s 18) but so does a group of brigades (s 19). A brigade that is part of a group must be able to operate within the group’s area of operations even if that is outside the brigade’s area.  We know that RFS brigades travel in response to fires and operate across the state and the country.  The purpose of having an area has to be so that when a triple zero call is received, the communications know which brigade and which group officer or which district manager to call to coordinate the response.

Rural fire districts

The Rural Fire Service is established to, amongst other things, provide ‘rural fire services for New South Wales’ (Rural Fires Act 1997 (NSW) s 9(1)).  Rural fire services are the sorts of services you would expect from a fire service provided in ‘rural fire districts’ (s 9(4)).  Local government areas are established for each council (Local Government Act 1993 (NSW) Chapter 9).  Rural fire districts are created for each local government area (Rural Fires Act 1997 (NSW) s 6).  Local governments may, in effect, combine to create in effect a larger single fire district (s 7).

The Rural Fire Service says (https://www.rfs.nsw.gov.au/resources/publications/statewide-map) “New South Wales is divided into four regions and subdivided into rural fire districts which are based on local government boundaries”.  There are 47 districts (https://www.rfs.nsw.gov.au/about-us/our-districts) but there are more than 47 local governments in NSW (https://www.lgnsw.org.au/about-us/nsw-council-links) so either the RFS is using the term ‘district’ to mean a management division but not a rural fire district, or some rural fire districts have been created that include more than one local government area.  I infer the latter is the case as clearly some ‘districts’ do involve more than one local government area; for example, ‘Orana Team is located in the Central Western Region of NSW incorporating the local government areas of Dubbo, Narromine and Wellington’ (https://www.rfs.nsw.gov.au/about-us/our-districts/orana).

Fire Control Officers

Fire control officers for each fire district are appointed by the Commissioner of the RFS (s 37).

A fire control officer is, subject to any direction of the Commissioner, responsible for the control and co-ordination of the activities of the Service in the rural fire district for which he or she is appointed as fire control officer.

Various powers are exercised by local authorities.  These include the power to establish a brigade and determine its area of operation (ss 15 and 18).  The Rural Fire Service has entered into Rural Fire District Service Agreements with many if not all local government areas that are outside fire districts where fire services are provided by NSW Fire and Rescue (s 6(2) and Fire and Rescue NSW Act 1989 (NSW) ss 5 and 5A). Under those agreement most of those responsibilities that would otherwise be exercised by council have been passed to the Rural Fire Service.

The Commissioner of the Rural Fire Service has delegated much decision making to staff and volunteers of the RFS (Rural Fire Service, Service Standard 1.3.1 Delegations and Authorisations (Including supplementary delegations – unincorporated area of NSW, 22 November 2013).  The power to form a brigade, to determine its area of operation and appoint officer has been delegated to the relevant District Managers.  That standard also says:

3. For the purpose of this Service Standard and related documents District Manager includes a Team or Zone Manager

4. A reference to a District Manager in this delegation refers to the District Manager for the relevant rural fire district.

5. Where a delegation is extended to a District Manager for a rural fire district which forms part of a number of rural fire districts that are managed by a team of members of the staff of the Service pursuant to a direction of the Commissioner, the delegation extends to the District Managers respectively of the other rural fire districts that form the team.

6. A reference to a Regional Manager in this delegation refers to the Regional Manager with responsibility for the relevant rural fire district.

7. A reference to a Fire Control Officer (FCO) in this Service Standard and related documents refers to a District Manager.

I’m going to infer, without looking further, that the District Manager is the FCO and if the District includes more than one local government area, the District Manager is the FCO for each local government area within that district.

Rural fire brigades

My correspondent refers to ‘Division 3 of the Act’.  The Act is divided into parts and each part is divided into divisions so there is more than one ‘Division 3’. I infer my correspondent means ‘Part 2, Division 3, Rural Fire Brigades’. The powers of the officers of a brigade are vested by the Rural Fires Act 1997 (NSW) s 22 and the Commissioner’s delegation (Rural Fire Service, Service Standard 1.3.2 Powers of Officers, 19 March 2013).  A Brigade officer has statutory authority to take all sorts of steps to deal with a fire and make premises safe (ss 22-26).  They do not need specific permission from the Fire Control Officer though they are subject to the Fire Control Officer’s direction and control (s 38).  The fire control officer can take command of firefighting operations and the operations of brigades, but they do not need to.  Fires may occur where a single brigade turns out and deals with the fire, or maybe there are two or three brigades under the command of a group captain.  Or there is a major campaign fire and the relevant Fire Control officer is acting as the incident controller.  All of those responses are possible.

Even though a brigade has an ‘area of operation’ (Rural Fires Act 1997 (NSW) s 18) a person appointed an officer of a Brigade is an officer whether the brigade is within its designated area of operations or not.  The captain of the Kickatinalong Brigade is the captain whether she or he is in Kickatinalong, Sydney or anywhere else.  Further the Kickatinalong Brigade does not cease to exist once they appliance and crew leave the relevant rural fire district.

Section 21(2) says:

An officer of a rural fire brigade or group of rural fire brigades may exercise a function conferred or imposed on the officer:…

(b) at a place outside that rural fire district:

(i) with the approval of the Commissioner or of the fire control officer for the rural fire district in which the place is located, or

(ii) in accordance with a bush fire management plan or in circumstances prescribed by the regulations, or

(iii) within a fire district–with the approval of an officer of Fire and Rescue NSW.

After the writing the first edition of this post I have been advised that, by instrument dated 15 September 2017, the Commissioner has given standing authority for ‘An officer of a rural fire brigade or group of rural fire brigades…’ to exercise his or her authority in any fire district.  That instrument can be read here.

(I also note that there is an MOU between NSW RFS and Fire and Rescue NSW to allow operations in a fire district pursuant to s 21(2)(b)(iii); see also Rural Fire Service operating within a Fire District (amended) (January 25, 2015)).

Section 40 says:

The officer in charge at a fire, incident or other emergency may authorise any officer or member of a rural fire brigade or group of rural fire brigades to exercise all or specified functions under this Act of the officer in charge at a fire, incident or other emergency.

If a brigade is operating outside its designated territory it can do anything the officer in charge at the fire, or the Commissioner authorises them to do so and the Commissioner has authorised all brigade officers to exercise their powers in any fire district.

The conclusion so far

Where a brigade is in a local government area that is also a fire control district, the brigade can move outside that district and the officers can exercise their power and authority if they have ‘the approval of the Commissioner or of the fire control officer for the rural fire district in which the place is located’ and/or they are authorised by the relevant ‘officer in charge’ (if there is one, the visiting brigade captain could be the officer in charge).  There is a standing authority of the Commissioner (s 21(2)).  The authority of the officer in charge (s 40(1)) does not have to be in writing.  It can be implied by a request to a brigade to respond ‘out of area’ and/or tasking by the relevant ‘officer in charge’ (s 40(2)).

The problem

The problem according to my correspondent is that in some districts brigades do not necessarily have sheds but equipment kept on local farms.  The members may respond to fires without being tasked to do so, and in so doing, cross from one rural fire district to another. (I confess to still being unclear how they would know about the fires, but it’s possible if the boundary between one district and the other is the road outside the farm gate and they can see the fire burning on the neighbour’s property).

If the brigade in question notified the fire control centre that they were going and that was approved then for all practical purposes everyone is going to accept (without checking every delegation) that they had the appropriate authority under s 21(2).  If they are paged or called and asked to attend that would be beyond question.

If they go without telling anyone that is a bigger problem but not for reasons suggested by my correspondent.  If a brigade responds and does not let fire control centre know then the fire control centre does not know that brigade is now unavailable; if they receive a triple zero notification of the fire they do not know that the brigade is already there; if they do not know there is a fire they cannot start planning how they will scale up the response if necessary nor can they plan to support the crew in the field if they do not know they are in the field.  If a firefighter gets injured it will be a bigger hurdle showing that the injury was suffered whilst on duty for the RFS and that may make the compensation process harder.  I will however assume, for the sake of the argument, that the brigade has responded, the response is across the border of a rural fire district (and not just local government areas where the same district manager is the FCO for both local government areas) and they have not told anyone they are going.   Let us also assume they do something negligent (though I can’t imagine what).

Question 1

Could a volunteer ‘be liable for damages where they believe to be operating under Division 3 of the Act but those powers potentially do not extend beyond the LGA line’?  No.

Let me assure readers of this blog – volunteers will never be personally liable (deliberate and criminal misconduct excepted).  When a brigade responds to a fire they are doing so as the Rural Fire Service. The Rural Fire Service is not a legal entity, but the Crown in Right of New South Wales is. The Crown can sue and be sued but it cannot actually do anything – it has no hands or mind.  The hands and mind are provided by the people – the staff and volunteers – but when those hands and mind act, they are acting as the legal entity of the Crown.  That is a long way of explaining that if there is a default by any of those people, a person affected would bring a legal action against the State of NSW.  And the Crown will be liable for the negligence of its volunteers and staff because they are acting on behalf of the Crown (Crown Proceedings Act 1988 (NSW) and Government Sector Employment Act 2013 (NSW)).

If a brigade sees a fire and chooses to go outside their fire district, they have the Commissioner’s standing authority but let us assume, for the sake of the argument, that authority of September 2017 had not been written. Let us therefore assume, again for the sake of the argument that they have not been requested or authorised to do so (s 21(2)) and have not been authorised by the person in charge of the fire (perhaps because there is not one).  Even in those circumstances they are there as the Rural Fire Service.  That is what it says on their uniforms and trucks and they are responding to a fire so they are providing rural fire services.  Further one does not need special powers to fight a fire (Stephens v Stephens (1970) 92 WN(NSW) 810) so chances are they are not exercising any powers set out in ss 22-26.  If that is the case the authority to exercise those powers outside their home fire district (s 21(2)) is not relevant.

Provided they are acting ‘in good faith’, that is they saw a fire, thought ‘we’re the rural fire service, we’d better go look at that as that is what a rural fire service does’ then they are protected (s 128). If there is anything done that could lead to liability (remembering that in 10 years the fire brigades have not been successfully sued (see Australian emergency law turns 10 in January 2019 (January 4, 2019)) the liability will still attach to the Crown.  If there was an absence of authority under s 21(2) that would, I predict, be seen as a procedural or administrative error, not an error that goes to the heart of the firefighters’ action and converts their response into a ‘frolic of their own’.  The consequence of, and therefore the need to ensure that people know they are responding is to do with effective management of the response (as discussed above) rather than legal protection against civil liability for some unpredictable default.

The other way a brigade may be called upon to respond to a fire outside their fire district is if they are travelling through the district and see the fire. Again, the Commissioner’s authority of September 2017 would allow them to do what they needed to do, but again let us assume that this authority has not been issued.  The first thing they should do is notify the fire control centre, by radio or triple zero call if that can be done, and advise them of the brigade’s presence and that would probably give sufficient permission (s 21(2)). In any event, stopping at a fire doesn’t require the powers set out in ss 22-26; anyone can stop and attempt to put out a fire if they want to (Stephens v Stephens (1970) 92 WN(NSW) 810).

Further, and the definitive answer, is that that the Commissioner is aware of the issue and has in fact issued an authorisation in effect giving his permission under s 21(2)(b)(i) to any member of the RFS to act in any fire district.

Fire permits

Fire permits are required to light fires during bushfire danger periods or fires that pose a danger to buildings (Rural Fires Act 1997 (NSW) ss 86 and 87).  The relevant authority for the issue of a fire permit within a rural fire district is the Commissioner of the Rural Fire Service (s 85).  The authority to issue permits has been delegated to District Managers and Permit issuing officers (Rural Fire Service, Service Standard 1.3.1 Delegations and Authorisations (Including supplementary delegations – unincorporated area of NSW, 22 November 2013).  The delegation to members of the RFS is two step delegation.

Service Standard 4.2.2 Fire Permits says that a permit may be issued by:

(a) The Fire Control Officer (FCO) – in relation to any part of the rural fire district to which he or she has been appointed;

(b) A Deputy Fire Control Officer (DFCO) – in relation to any part of the rural fire district to which he or she has been appointed;

(c) A member of the RFS who has been appointed as a Permit Issuing Officer (PIO) by a FCO – in relation to those parts of a rural fire district specified by the fire control officer from time to time.

In effect the FCO has a delegation ([2.4(a)]) and he or she may authorise an RFS member ([2.4(c))].   The RFS member may only issue a permit for ‘those parts of a rural fire district specified by the fire control officer from time to time’.

The problem

The problem according to my correspondent is that volunteer permit issuing officers (PIOs) are out in the field, sometimes hundreds of kilometres from their FCC and issue permits to landholders whose land is outside of that PIO’s brigade area’.  The relevant ‘area’ for the PIO is not the brigade area (defined in s 18) but the area of the rural fire district defined in the PIO’s appointment.  It does mean that an PIO cannot issue a permit authorising a fire on land that is outside the area in his or her appointment.

Question 2

A person commits an offence if they light a fire without a permit.  If they have approached a PIO and that person has issued a permit but has done so for land that is outside ‘those parts of a rural fire district specified by the fire control officer’ then the PIO has acted beyond power.  If the permit holder does not know that the PIO has acted beyond his or her power, then the permit holder would have a defence to any legal action.  They would have an ‘honest and reasonable mistake’ (ie that they have ‘a fire permit issued by the appropriate authority’) and if that were true their act would be innocent (Proudman v Dayman [1941] HCA 28).

The PIOs actions would be ‘ultra vires’ (ie beyond power) but that would simply allow someone who wanted to stop the permit holder from lighting a fire to have the permit declared invalid.  Not much help if the fire is already lit.   If the PIO is knowingly issuing permits for areas outside ‘those parts of a rural fire district specified by the fire control officer’ that would be reasons to terminate his or her authority to issue permits.

Conclusion

There are no significant legal issues here.  The New South Wales Rural Fire Service operates across New South Wales and in fact across Australia and the world.  Brigades can operate outside their home fire district with the permission of the Commissioner and the Commissioner has given that permission in the document attached- RFS s 21 approval.  Even without that general authority, being tasked to respond outside their district is sufficient authority.

As for permits a PIO can only issue permits for ‘those parts of a rural fire district specified by the fire control officer’.  If they issue a permit outside that area it has no legal authority but if a permit holder did not know the PIO was acting outside his or her authority they would still have a defence to any allegation of illegally setting a fire contrary to ss 86 or 87.

Categories: Researchers

Spontaneous volunteers, emergencies and insurance

9 February, 2019 - 22:51

In light of the recent flooding in Townsville I’m asked:

How are the spontaneous volunteers helping before, during or after an emergencies or disasters covered by insurance, under legislation or other laws?

This is a big question that we can only touch the service here.  The status of management of spontaneous volunteers is a growing issue and the subject of research – see, for example, the Bushfire and Natural Hazards CRC Research Project ‘Out of uniform: building community resilience through non-traditional emergency volunteering’.

Spontaneous volunteers

Spontaneous volunteers are those that step up in an event to offer what assistance they can but were not, before the event, members of any organisation that was training for and intending to take part in an emergency response.  Spontaneous volunteering can take many forms including:

  1. Those that step up and help their neighbour;
  2. Those that step up and create their own NGO out of need – think Queensland Mud Army, Christchurch Student Army, Tasmania’s ‘Can we help’, Blazeaid etc (some of which go onto to become substantial and long-running aid agencies); or
  3. Those that turn up to work with an established emergency service eg those that are now being recruited by NSW SES to help fill sandbags etc but have never formally ‘joined’ the SES.
Insurance

Insurance is a contract between the insured (the first party) and the insurance company (the second party).   It is in effect a gamble.  If I pay an insurer a premium (say for the sake of round numbers, $1000) then I’m betting that the risk that I’m insuring will happen. Again, for the sake of round numbers, let’s assume the agreed value of my house is $1,000,000.

In that case when I pay my $1000 premium, I’m betting with my insurer that my house will burn down or be otherwise destroyed.  If I’m wrong, then the insurer gets to keep my premium. If I’m right the insurer pays me $1m, that’s a payout of $1000:1.   The insurance company gets premiums from many, many people and most of them will be wrong, in any given year their house won’t be destroyed.  From those premiums the insurance company makes enough profit to give a return to its shareholders as well as have money in cash and investments to be able to pay out to those few insurance holders who do lose their home.

The critical point is that insurance is a contract between the insured and the insurer and the insurer pays out when the risk that they guaranteed to cover – that they accepted the bet on – happens.

There are two sorts of insurance.  First party and third party.  First party insurance means I’ve taken out a policy to cover risk to me.  Insurance on my house, insuring my car against theft or damage, income protection and health insurance are all examples of first party insurance.  If the ‘bad’ thing happens to me I make a claim on my insurance policy and the insurer pays out to me.

Third party insurance covers my liability to someone else.  There is compulsory third party insurance when I register my car, an employer has to have workers’ compensation insurance to meet the employer’s liability to injured workers, home insurance comes with insurance to meet claims of people injured on your property. The difference here is that if someone makes a claim against me, I claim on my insurance policy and my insurer stands in my place.  The insurer can settle or defend the claim, and they pay out if I am legally liable.  The person making the claim is not claiming on my insurance, they are claiming against me and I am claiming against my insurance.  That will be relevant in the context of the question ‘How are the spontaneous volunteers … covered by insurance?’.

Volunteers that step up and help their neighbour

Assume there is a street that goes up a hill.  A flood affects the house at the bottom of the street (number 2) but not the neighbouring house (number 4) that is further up the hill.  The resident in number 4 goes into number 2 to help with them clean up.  This might happen if the house is one of 1000 affected or if it’s the only house affected.  It might happen if the flood is due to a rising river, or a burst water pipe in the wall.  This is just one neighbour going to help another.  Are they covered by insurance?

We have to stop and ask: ‘what risk are we considering?’ In this context the biggest risk is injury.  The neighbour from number 4 is covered by insurance if they have relevant first party insurance, eg health insurance, accident insurance, income protection insurance.

If they are injured due to the negligence of the owner of number 2 they could sue that person.  If number 2 has relevant insurance then the insurer will take responsibility for the claim and either settle it or defend it.  As discussed above, the neighbour from number 4 is not claiming on that insurance policy as they are not a party to it.  The neighbour from number 4 is not ‘covered’ by that insurance, the resident at number 2 is.  Insurance does not however determine liability, number 4 can sue number 2 whether number 2 has insurance or not.  If number 2 has insurance, their insurer manages and meets the claim. If number 2 does not have insurance, they have to meet the claim themselves (but number 4 probably wouldn’t bother as there is little point suing people who are not insured).

Those that step up and create their own NGO out of need.

Here the issue becomes more complex simply because the nature of these organisations and what they end up doing can vary so much with the need.  There is also another potential risk, that is the risk that a volunteer will do some harm at the place they are volunteering (either accidentally or maliciously) or that they will be accused of doing harm (they are different risks).

It is however unlikely that any organisation that has just sprung up out of need will have any insurance in which case the answer is the same as the situation for volunteers that step up and help their neighbour.

Where a person has suffered harm and believes it was caused by the volunteer they may look to the organisation for relief but that would be very difficult.  First it would depend on what role they were playing.  If, for example, the organisation operated a website where people who wanted assistance could list what they needed and people who wanted to help could then offer to meet that request, the organisation is in no way asserting that the volunteer is competent or reliable or the place that they are going is safe and the person seeking assistance is reliable.  To the extent one has a duty of care it’s a duty to do what you said you would do with reasonable care, not a duty to do something you clearly weren’t doing.

One can see therefore that the potential to ‘claim’ against the organisation will depend very much on what it is they were doing.   Again the presence, or absence, of insurance does not determine whether there is liability but again trying to sue a spontaneous group that does not have insurance and probably does not owe a duty of care to anyone would be a waste of time and money.

Those that turn up to work with an established emergency service or other organisation used to dealing with volunteers

Volunteers that assist organisations that use volunteers will be incorporated into that organisation.  That may be an SES, a council or even a volunteer management group eg Volunteering Queensland.  These organisations will no doubt have insurance (or in the case of government agencies will be covered by the governments self-insurance arrangements). These policies would be expected to provide some protection for volunteers that are injured and also some legal representation if claims are made against the volunteers or the agency due to some alleged misconduct (intentional or accidental) by the volunteer.

In the emergency service context, there are legislative provisions that impact upon the status of volunteers in most states and territories. Taking New South Wales as an example, the State Emergency Service Act 1989 (NSW) s 25 extends a protection from personal liability to a ‘casual volunteer’ that is ‘a person who, with the consent of the member or officer, assists a member of the State Emergency Service or an emergency officer in the exercise of the Service’s functions’.  The Workers Compensation (Bush Fire, Emergency and Rescue Services) Act 1987 (NSW) provides workers compensation type insurance to members of the Rural Fire Service, the State Emergency Service and to any person ‘who, in the opinion of the Self Insurance Corporation having regard to all the circumstances, should be deemed to be an emergency service worker for the purposes of this Part’.  That would extend, in my view, to SES casual volunteers.

Every state and territory has legislation to provide protection from civil liability for volunteers and that would include all volunteers, whether they joined up this morning or many years ago.  In all states other than NSW, the legislation says that even though the volunteer is not liable for any mistake, the organisation they volunteer for is.  In that case if there is an allegation that the volunteer did some damage the organisation will have to manage that and the organisation’s insurer (if there is one) will meet the claim.  That may feel, to the volunteer, that they are protected or covered by the organisations’ insurance but that’s not quite the correct way to see it.  It’s not that they are covered by ‘insurance’, they are not liable, the organisation is and it is the organisation that is covered by insurance.  If there is no insurance, it’s still not the volunteer who is liable.

Regardless of the legislation, when a person is volunteering under the direction and control of an agency like a State Emergency Service or fire service, they are not representing themselves.  They are doing the work of that service, whether they are formally a member or not. The organisation will be vicariously liable for any negligent (but not criminal) damage they cause.

In the absence of a statutory compensation scheme such as that in the Workers Compensation (Bush Fire, Emergency and Rescue Services) Act 1987 (NSW), or required by the Fire and Emergency Services Act 1990 (Qld) s 154C (Commissioner to insure SES members etc.) an agency will only be liable to compensate a volunteer if the volunteer can show that their injury was caused by the agencies negligence.

Even if they are not required to have insurance, there may well be many cases where organisations do have ‘third party’ insurance that does offer a no-fault benefit.   A volunteer organisation may have a workers’ compensation type insurance policy to pay out benefits to injured volunteers without need for that volunteer to prove any negligence (see for example Workers’ Compensation and Rehabilitation Act 2003 (Qld) s 14 Rural fire brigade member; s 15 Volunteer firefighter or volunteer fire warden; s 17 Honorary ambulance officers; s 18 Person in voluntary or honorary position with religious, charitable or benevolent organisation; s 19 Person in voluntary or honorary position with non-profit organisation). Non-government agencies would not be required to do that so I can’t say that such a policy exists, or does not exist, but in most large organisations and any government organisation you would expect that would indeed be the case.

Conclusion

There is no simple answer to the question:

How are the spontaneous volunteers helping before, during or after an emergencies or disasters covered by insurance, under legislation or other laws?

It depends (as it always does) on what state they are in.  It also depends on the nature of their volunteering and the sort of risk that is being considered.  Fundamentally how people are covered by insurance depends firstly on whether there is insurance and then on the terms of that insurance – what risks in what circumstances.

If the question means how are they covered for compensation for injuries that is in fact quite a different question.  Again it depends on the state or territory. In NSW there is a statutory scheme to cover emergency service volunteers, in Queensland agencies like the SES are required to take out a workers compensation insurance and other agenices may chose to do so.  If a person is volunteering with an agency like that then they will have the benefit of that insurance.  If they are simply helping their neighbour then they won’t.

If the risk that you are concerned about is a risk that volunteers will be liable for honest errors made during their volunteering, those that are volunteering with and as part of the response of a community organisation will be protected by volunteer protection legislation in each state and territory. Again, those that are just helping their neighbours will not have that.

But that should not stop people helping the neighbours.  We all do things every day including helping friends and neighbours without worrying about whether or not we’re insured.  The risk of getting sued is no-existent.  The risk of getting injured whilst helping in a fire or flood may be higher but a volunteer should think about that, not insurance, when deciding to help.  Wear proper footwear and gloves, and go for it.

Categories: Researchers

Judge dismisses class action over Victoria’s ‘Gazette bushfire’

9 February, 2019 - 19:50

In Block v Powercor [2019] VSC 15 Dixon J dismissed a class action against Powercor over its alleged negligence in failing to protect a power line from the risk of a falling tree.   At [18]:

The circumstances of the contact between the Tree and conductor causing the fire are uncontested … At approximately 9.15pm on 17 March 2018, the Tree fell. Block alleges that the Tree failed approximately two metres above ground level and fell in a south-east direction onto one or both of the conductors on the powerline to the north of a pole (Powercor asset number 700184, referred to as ‘pole 2’). That contact caused the western conductor to fail and fall to the ground where it discharged electricity igniting the immediately surrounding vegetable matter and causing the fire which spread, becoming the Gazette bushfire.

It was alleged that Powercor maintained a clearance of 20m between its powerline and a commercial plantation, but that many of the trees were taller than 20m ‘with canopies extending into the clearance zone’ ([19]).  Trees that were taller than the clearance zone was wide posed a risk of impacting the power line should they fall.   The plaintiff claimed that the defendant was under a duty to inspect the trees adjacent to the powerline (of which there were hundreds), that is an ‘alleged responsibility to keep the whole or any part of a tree clear of the powerline’ ([20]) both as it grew, and should it fall.  There was no evidence as to why this otherwise healthy tree, fell.  At [23]:

Block’s allegations of Powercor’s duties are not directed at the Tree, but rather at the blue gum plantation or at least so much of it as was higher than the distance from the tree trunk to the conductor. Block alleges that had there been no negligence, the Tree would have been removed or pruned along with hundreds of other trees that were located at an ‘unsafe’ distance from the powerline.

Summary dismissal of a claim, that is rejecting the claim even before evidence has been called, is not common but may be done where the judge is of the view that the ‘proceeding ‘has no real prospect of success’’ ([85]).  And at [89]:

Powercor accepted that it carried a high onus of persuasion that Block should be denied a trial on evidence because the three pleaded causes of action have no real prospect of success.

Both the obligation of Powercor to maintain tree clearnance, and the power to take action to meet that obligation, were set out in various statues, regulations and Codes of Practice.  Any alleged duty of care had to be consistent with those statutory provisions (ie there could not be a common law duty that required Powercor to do something that Powercor was not authorised to do or that failed to take into account the factors that Powercor was obliged to take into account).   Dixon J traced the extensive history of legislation in this area from 1976 to present time. At [148] he said:

From this excursion through legislative history what clearly emerges is, as Powercor submitted, a carefully devised balancing of the obligation to remove vegetation in order to avoid contact with powerlines and the obligation to preserve vegetation in the environment, evident from objections to destructive and excessive pruning of vegetation. In developing this balance, the regulations have not extended to identifying an obligation to remove the trees that may fall, irrespective of cause or reason, and make contact with a powerline. An exception is made in the case of transmission lines…

But the line, in this case, was a distribution line, not a transmission line ([48]).  THe judge continued (at [151]):

Bearing this historical context in mind… [Powercor] was a distribution company and as such is responsible for keeping the whole or any part of the tree clear of an electric line within its distribution area in accordance with the regulations and Code where the standards and practices to be adopted and management procedures to be implemented by responsible persons are specified.

The plaintiff argued that any tree that is ‘physically able to come into contact with a powerline if it fell’ was not ‘clear of an electric line’. Powercor argued that given the historical context, the ‘concept of coming into contact must be more restrictively construed’ ([152]).  His Honour said (at [153]-[154]):

I prefer Powercor’s contention… Vegetation is clear of a powerline if unlikely, rather than unable, to come into contact with the powerline in foreseeable local weather conditions. The defining feature that is employed in assessing probability is the hazardous nature of vegetation. While a 30 metre tree on the edge of a clearance space is able to fall and make contact with the powerline, it is unlikely to do so unless it is a hazard tree, as defined.

And the tree in question did have any condition to meet the definition of a ‘hazard tree’.    His Honour continued ([157]):

The statutory regime imposed no specific responsibility on Powercor to remove trees in the vicinity of a two-phase 22kV distribution powerline that will enter the minimum clearance space around that line simply if the tree inexplicably falls, either in express terms or by implication. The positive obligation imposed on Powercor was to ensure that no part of a tree was within the minimum clearance space for a span of an electric line. It was not suggested that such obligation was breached. That obligation was only extended to trees beyond the minimum clearance space in relation to hazard trees or transmission lines, which is not the pleaded case. Neither the Guide, nor the regulatory documents applicable to commercial plantations, establish that Powercor was responsible for clearing trees within a wider 20-metre clearance zone, but regardless it was not pleaded that there was a breach of the 20-metre clearance zone.

It followed that Powercor had meet the obligations imposed by the legislation. The plaintiff also relied on the common law.  Under common law, a duty of care arises where all the circumstances the defendant should take steps to protect the plaintiff. In this case the plaintiff started with the argument that it was ‘reasonably foreseeable that a discharge of electricity from a powerline could ignite a fire’. This, it was argued, gave rise to a duty to assess and manage trees that could fall across its powerline ([179]).  Foreseeability of harm is however not enough to establish a duty of care.  Apart from foreseeability the defendant must have the power to Act: ‘A common law duty to act in a particular way cannot arise unless there is authority or power to act’ (at [181]).  His Honour (at [188]-[189]):

… upheld Powercor’s submission that it did not have the power to perform the acts Block asserted it was required to undertake, namely pruning or removing non-hazard trees outside the minimum clearance space that possibly might fail and fall across the cleared zone into a position where such trees might not be clear of the powerline.

For these reasons, the plaintiffs’ allegations of foreseeability, and foreseeability combined with power, have no real prospect of establishing a common law duty of care.

And at [202]:

The core of Block’s complaint is that Powercor did not design and implement a system that was capable of reasonably mitigating the risk of plantation trees falling onto or otherwise coming into contact with an electric line. Powercor had other obligations that preserved environmental considerations in the balance of the decision about clearance. The risk of bushfire caused by a 30 metre tree failing and coming into contact with the powerline was not far-fetched or fanciful, but the performance of an obligation … to clear a 30 metre strip of healthy blue gum trees alongside the powerline would plainly distort the statutory scheme for tree clearance. Subject to exceptions that are not made relevant on the pleaded case, Powercor was not permitted to remove a healthy native tree from the land of another beyond the clearance space.

Discussion

Regardless of the consequences, the outcome of this case would sound consistent with most people’s expectations.  The defendant was able to point to legislation and relevant codes of practice and confirmed that it had acted in accordance with those requirements.  It had managed its powerlines both as it was required, and empowered to do.  It did not have to do more and more importantly did not have the authority to do more.  In those circumstances, Dixon J held that the plaintiff’s claim in negligence had no prospect of success.  It also reminds us that just because there is a poor outcome (in this case the fire) it does not follow that the person who caused the damage was negligent or is liable.

It is not common for a judge to dismiss a case without hearing evidence. The decision is based only on the case as set out in the court documents, so there is a risk of injustice. It is however necessary to have the power to dismiss hopeless cases rather than put the defendant and the court to the time and expense of defending the matter.

I have previously noted that electrical companies have settled bushfire claims – Bushfires; the price we pay for electricity (May 20, 2014).  The plaintiff’s may have had some confidence or expectation that the defendant would come up with an offer, but at least at this first stage, Powercor stood their ground with, from its perspective, success.

Categories: Researchers

NSW Police liable for mismanagement of officers PTSD

9 February, 2019 - 16:44

In an earlier post, Negligence claims relating to PTSD (May 14, 2018) I reported on the decision in [Name omitted] v State of New South Wales [2018] NSWDC 119. That case involved a NSW Police Officer who sued the State, as the agency responsible for the conduct of police, for negligence in the way the police dealt with her exposure to traumatic incidents and the development of PTSD.  In the NSW District Court, Mahony DCJ dismissed her claim for damages.  In my discussion of Mahony DCJ’s decision I said:

Identifying that a person is at risk or is suffering psychiatric injury requires consideration of matters of utmost privacy.  If the employee does not take advantage of assistance that is on offer, or fails to disclose or worse, lies about their situation, there is little an employer can do.  We can recognise that there are cultural barriers to such disclosure and that is something the employer should seek to negate (as they did here, see [178]).  Given that it is not reasonable or possible to require an employer to ‘ensure’ that a person seeks assistance or takes advantage of that assistance.

Following that decision in the District Court, the plaintiff appealed to the Court of Appeal.  (In my earlier discussion I did not given the plaintiff’s (now the appellant’s) name.  I will again refrain from naming her. The online version of the decision does give her name, but I don’t need to).  In [Name Redacted] v State of New South Wales [2019] NSWCA 4 the Court of Appeal set aside the decision of Mahoney DCJ and entered a verdict in the appellant’s favour of $1,405,000.

Reasons

The Court of Appeal found that this was not a case where the appellant’s claim was based on a failure of the police to have in place systems to identify and support officers exposed to traumatic events and who did, or were at risk of, developing PTSD and other psychological injuries.  The system of work was in place; what was alleged was a failure by police to actually follow or apply the system that was there.   At [122] Sackville AJA (with whom Payne JA and Simpson AJA agreed) said:

The question for determination is not whether the State should have devised a system, or a better system, to identify police officers at risk of suffering psychological injuries as a result of exposure to trauma and to provide those officers with appropriate assistance. The appellant accepted that the procedures in place, if implemented, were satisfactory. So much was recognised by the primary Judge.  The question is whether the primary Judge should have found that the State breached its duty of care by failing to implement the system in place for detecting and addressing psychological injury.

That is, the issue was not whether reasonable procedures were in place; it was whether those procedures were followed. The appellant’s case (at [124]) was that having had her assessed by a police medical officer and police psychologist the Police Service was on notice that she had suffered PTSD and although she was fit to return to normal duties, those doctors recommended follow up and monitoring that was not done.  In short, the Police knew she was vulnerable, had recommendations from their own doctors as to what to do, and did not do what was recommended.

Further, it was alleged that the Police failed to provide an adequate response when it was recorded that the ‘appellant had experienced at least five traumatic incidents within a relatively short period’.  There stated procedures would have required some face-to-face intervention, not just an email ([144]).  Further (at [143]):

…On 5 August 2009, she was warned about her poor attendance record. While the letter invited the appellant to discuss any issues on a confidential basis, the obvious purpose of the communication was to require her to provide medical certificates to support any future sick leave she might take. The letter was hardly a sympathetic response to someone exposed to traumatic incidents and who was known to have suffered from PTSD.

The response was particularly inadequate, it was argued, given her superior officers knew of her earlier symptoms and were aware of her increased risk of psychological injury, that having been reported in the police medical reports.

At [131] the Court said:

Whatever the reasons, the recommendations [of the police medical officers] were not put into effect and the appellant never received the support and assistance the medical officer and psychologist deemed necessary for her psychological welfare. Since the referral to the PMO and Police Psychologist had been made precisely because the appellant was known to have sustained PTSD as a result of exposure to work-related trauma, it would seem to be almost self-evident that the State’s inaction breached the duty of care it acknowledged it owed to the appellant.

So why did the District Court find there had been no negligence?  Sackville AJA said (at [145]-[148]):

The primary Judge justified on two grounds the State’s failure to respond more actively to the accumulation of Critical Incidents.  First, by the end of 2008, any need for monitoring, mentoring or counselling for the appellant “had long since passed”.  Secondly, the appellant did not disclose to the State the nature and extent of her psychological condition.

The foundation for the first finding is obscure. The State was aware or should have been aware by the latter part of 2006 that the appellant was suffering from work-related PTSD and that in the absence of monitoring and counselling (and even with support) she was at risk of her psychological condition persisting and worsening if she was exposed to further traumatic incidents. While she had been on leave for a considerable period before recommencing work in 2009, the State had no information suggesting that her PTSD had improved to the point where she was no longer in need of support and assistance, if not a transfer from front line duties. The appellant’s return to general duties in early 2009 swiftly exposed her to renewed trauma with predictable consequences.

… At the beginning of 2009, State had no information to suggest that the mere passage of time (during which the appellant had not been exposed to traumatic incidents) removed her vulnerability to trauma if and when she resumed general duties.

The second reason encounters the difficulty that the State did not contend that its failure to take any action other than sending an email resulted from a considered view that any additional action would be futile. The finding that any meeting between an appropriate person (not necessarily a senior officer) and the appellant would have “provoked no further disclosure” on her part ignores the fact that a meeting held in consequence of a series of Critical Incidents would have taken place in very different circumstances than earlier interchanges between the appellant and senior officers. A combination of a previous diagnosis of PTSD and a series of Critical Incidents should have raised a very prominent red flag.

In conclusion Sackville AJA said (at [155]-[156]):

In my opinion the evidence established that the State breached its duty of care to the appellant in 2006 by returning her to general duties without implementing the recommendations made by the PMO and the Police Psychologist. At the time the decision was made the State was aware that the appellant was suffering PTSD and that placing her on general duties was likely to expose her to further traumatic incidents. The State was aware that the PMO and Police Psychologist had certified the appellant as fit for general duties on the basis that she received the counselling and support recommended by them. The failure to implement the recommendations exposed the appellant to precisely the risk of which the State had been made aware.

The State also breached its duty of care to the appellant by its entirely inadequate response to the report in the Critical Incidents Register in May 2009. The State knew or should have known that the appellant was continuing to suffer from PTSD. The accumulation of five Critical Incidents within a relatively short period should have raised a “red flag” that intervention well beyond an exchange of emails was required. At the very least the exercise of reasonable care required a meeting in person with the appellant to determine what measures were needed to protect her from yet further trauma. That course of action would have been consistent with the practice senior officers considered appropriate and said that they implemented as a matter of course.

Contributory negligence

The state argued that the appellant contributed to her own injuries by failing to disclose the extent of her symptoms or otherwise discussing the matter with her senior officers or taking advantage of the Employee assistance program.  The court rejected that argument noting (at [169]) that:

The appellant explained her reluctance to attend the EAP on the ground that she felt worse after attending a session with a counsellor… If a person seeking help from a psychologist or counsellor feels that the service provider is actually making things worse, that person cannot reasonably be expected to return to the same source of assistance.

The court also noted that despite the diagnosis of PTSD that was on record, senior officers questioned her time off on sick leave and the honesty of her claims. At [171] Sackville AJA said:

By November 2006, the appellant became aware of … the fact that two senior officers … had expressed doubts about her genuineness. Not surprisingly she did not trust them as persons with whom she would wish to discuss her psychological problems. This provides cogent explanation as to why she was reluctant to confide in them or, for that matter, other senior officers with whom she served (all of whom seem to have been male).

The Court found no basis for a finding of contributory negligence.

At trial, Mahony DCJ has (as trial judges do) calculated the damages that should be awarded so that if there is an appeal, the matter does not have to return to the trial court for assessment. There was no challenge to the trial judge’s assessment so the court, upholding the appeal, ordered the state to pay the $1.4 million from which the appellant had to repay the Workers Compensation Insurer for any compensation she had already received.

Discussion

In my post Identifying that your employee is suffering isn’t enough, you have to do something about it! (January 27, 2019) I said ‘In colloquial terms, if (and particularly if you are an employer) you’re going to ask ‘R U OK?’ you have to be prepared to do something if the answer is ‘no’.

In this case the appellant was asked ‘…if she was feeling all right. She said that she was not well’.  Her sergeant ‘told her she needed to go home and to see her doctor’ and so started a process that included doctors, engaged by the Police Service, giving advice on how to manage her return to work. Advice that, it appears, was largely ignored and not brought to the attention of superior officers who then questioned why she was taking sick leave.

In the District Court, the trial judge determined that NSW Police had adequate procedures in place to deal with traumatised police officers, but if a police officer failed to take advantage of those procedures there was no negligence.  The Court of Appeal agreed with that assessment. But the judges of appeal said that this case was not about whether there were proper procedures, but whether those procedures and were followed. The fail to manage this officer’s return to work in accordance with the procedures and advice of the Police Service’s own medical officers was negligent and failed to protect the appellant from further injury and the subsequent loss of career and income.

In an unrelated case, Daniel Racek v DP World Sydney [2019] FWC 772, an employee was unsuccessful in his claim for unfair dismissal.  He had been a loyal employee at a stevedoring company for 23 years. He attended work ‘in a suicidal and depressed state of mind.’  Whilst at work he consumed alcohol to build up the courage to take his own life.  He communicated to a friend who in turn told the team leader who spent ½ an hour talking Mr Racek out of taking his own life.  But no-one took it any further, in fact they allowed Mr Racek to return to work.  Stevedoring is a dangerous profession and the employer had random drug and alcohol testing.  Mr Racek was subject to that random testing (not because he had tried to kill himself because everyone just hushed that up). He was found to have a Blood Alcohol Content of 0.118.   In investigative and disciplinary proceeedings the circumstances came to light, but rather than recognise that Mr Racek was suffering a mental illness, caused by circumstances that don’t need to be repeated, the employer dismissed him. And the Fair Work Commission found that this decision was neither ‘harsh, unjust or unreasonable’.  Is it any wonder that people don’t report mental ill health or seek support when that is the reaction of their employer?  It seems to me that many in the community will only tolerate or be sympathetic to a person’s mental illness provided they react in an ‘acceptable’ way – see also the discussion in Victoria SES Commander guilty of an offence, but no conviction recorded (April 22, 2014).

Anyone who is in the emergency services, or follows the news, will know that mental illness in the emergency services is both common and not unexpected.  Given what those in the police, ambulance, fire and rescue services are exposed to, ‘one does not need to be a psychiatrist to understand the reality’ of those reactions (see Deceased driver liable for police officer’s PTSD (February 1, 2019)).  Even so it appears that employers, both in the emergency services and elsewhere, are failing to recognise that they need to actually support their staff.

Categories: Researchers

Spending the Rural Fire Fighting Fund

6 February, 2019 - 07:36

The Rural Fire Fighting Fund is established by s 102 of the Rural Fires Act 1997 (NSW).  That section says:

(1) There is to be established in the Special Deposits Account in the Treasury a New South Wales Rural Fire Fighting Fund.

(1A) There is to be paid into the Fund:

(a) all contributions payable by the Treasurer to the Fund under this Part, and

(b) any other money appropriated by Parliament for payment into the Fund, and

(c) the proceeds of investment of money in the Fund, and

(d) any other money required by law to be paid into the Fund.

(2) There is payable from the Fund:

(a) money to assist in meeting the costs of rural fire brigade expenditure, and

(b) any money payable in connection with the exercise of the duties imposed on the Commissioner by section 45 and the construction and maintenance of fire trails and other fire prevention and hazard reduction works, and

(c) all money directed to be paid from the Fund by or under this or any other Act.

Today’s correspondent has been ‘… puzzled … for sometime…’.  My correspondent says:

Section 102 of the NSW Rural Fires ACT established the New South Wales Rural Fire Fighting Fund to replace the New South Wales Bush Fire Fighting Fund.

Quarterly contributions from insurance companies, local councils and the Treasury were to continue in the same proportions as under previous legislation – 14% from the State Treasury, 73.7% from the insurance industry and 12.3% from local Councils.

Currently the NSW Rural Fire Service are continuing to expand their operational roles into Rescue (Road Crash Rescue and General Land Rescue) and Flood and Storm Response (Down the wire flood rescue and Safe work at heights crews) and Maritime Firefighting (29 Fire Fighting Vessels) as well as owning and operating aircraft.

Would expenditure for non-rural fire fighting brigade resources such as rescue trucks, boats, motor bikes and aircraft still be permitted to be drawn from this fund.

Is the use of funds to build rescue trucks with no rural fire fighting capabilities legally be permitted to be drawn from the fund? Or should the NSW Rural Fire Service be seeking funding from other sources to ensure the fund remains dedicated to the provision or rural firefighting equipment and not robbed to pay for rescue or non-firefighting capabilities.

Disclaimer

There is law on the government accounting and finance, see for example the Public Finance and Audit Act 1983 (NSW). I would claim some expertise in law of emergency response and emergency services but none in public sector finance.  The discussion that follows will not attempt to address or explain the impact of this Act or public finance or accountability laws.

With that limitation I’ll give my opinion on the RFS Act.

The functions of the RFS

The functions of the Rural Fire Service include (s 9):

  • ‘to provide rural fire services for New South Wales’;
  • ‘to carry out, by accredited brigades, rescue operations allocated by the State Rescue Board’; and
  • ‘to assist, at their request, members of the NSW Police Force, Fire and Rescue NSW, the State Emergency Service or the Ambulance Service of NSW in dealing with any incident or emergency’.

Rural fire services include (s 9(4)):

(a) services for the prevention, mitigation and suppression of fires in rural fire districts,

(b) the protection of persons from dangers to their safety and health, and property from destruction or damage, arising from fires in rural fire districts,

(b1) the protection of infrastructure and environmental, economic, cultural, agricultural and community assets from destruction or damage arising from fires in rural fire districts,

(c) the provision of services referred to in paragraphs (a)-(b1) throughout the State in accordance with Part 3,

(d) any other service prescribed by the regulations.

Discussion

The first thing to note is that the New South Wales Rural Fire Fighting Fund receives (or can receive) more than the required quarterly contributions paid by Councils, insurers and treasury.  Clearly the fund receives all money intended for the RFS including any money appropriated into the Fund by the Parliament which could happen if the RFS sought, and was granted, extra funding for any special purpose.

Further, one should not put too much into the name ‘New South Wales Rural Fire Fighting Fund’.  The New South Wales Rural Fire Fighting Fund is the name of the account in treasury for the RFS to receive money, and the pay money for its purposes.

Rescue

It is (since 7 December 2018 and the commencement of the Emergency Services Legislation Amendment Act 2018 (NSW)) a function of the RFS to provide rescue services.  Taking money from the New South Wales Rural Fire Fighting Fund to meet the costs of establishing and supporting brigades that operated accredited rescue units would be an expenditure consistent with s 102(2)(a) and (c).

Flood and Storm Response

It is a function of the RFS to assist the other emergency services including the State Emergency Services. The SES may be the combat agency responsible for flood response and flood rescue (State Emergency Service Act 1989 (NSW) s 8(a); NSW State Rescue Policy (Version 4.0) 14 November 2018) but that does not mean that the SES have to provide all the flood rescue resources.  The NSW State Rescue Policy says, inter alia:

[1.70] The NSW Rural Fire Service owns and contracts helicopters, which are regularly inspected, some of which have known rescue capabilities, equipment and crewing. NSW Rural Fire Service owned and contracted suitable helicopters can be tasked in support of flood operations and bushfire events for the extraction of persons in imminent danger…

[2.49] The NSW SES has the authority to request any asset or resource, public or private, whether accredited, trained or not, to assist in flood operations, as referenced in the State Flood Plan.

If the RFS, in collaboration with the SES, is developing flood rescue helicopter capability then meeting the costs of that capacity would be legitimate expenditure pursuant to the Rural Fires Act 1997 (NSW) s 102(2)(a) and (c).

Maritime Firefighting

The Rural Fire Service provides rural fire services within a rural fire district.  If the rural fire district has a river, coast, lake or other waterway, rural fire services could include provision of maritime firefighting – whether that’s fighting a fire on a boat or fighting a fire on land from a boat.

The use of other vehicles in providing RFS services – helicopters and motorcycles for remote area access, helicopters and fixed wing aircraft for aerial firefighting would, I think, be uncontroversial.

Spending money on this equipment would be consistent with s 102(2)(a), (b) and (c).

Conclusion

My correspondent asked:

Is the use of funds to build rescue trucks with no rural fire fighting capabilities legally be permitted to be drawn from the fund? Or should the NSW Rural Fire Service be seeking funding from other sources to ensure the fund remains dedicated to the provision or rural firefighting equipment and not robbed to pay for rescue or non-firefighting capabilities.

If the RFS did seek ‘funding from other sources’ that funding would or could still be paid to the New South Wales Rural Fire Fighting Fund.  If the funding came from Treasury it would go into the fund (s 102(1A)(a) and (b).  Public funding could be in a separate fund unless some other law (dealing with public finance) required the RFS to use only the Treasury fund.

It follows that, in my view, the use of funds to build rescue trucks with no rural fire fighting capabilities and to develop rescue or non-firefighting capabilities where that is consistent with the functions of the RFS is a legitimate use of money in the New South Wales Rural Fire Fighting Fund.

Categories: Researchers

RFS operating ‘out of area’

5 February, 2019 - 16:59

Today’s question concerns intra-state boundaries (within NSW) and the

… powers of Brigade Officers (field and permit officers) within their Brigade area and the legitimacy of their ‘powers’ if that area extends outside of the LGA [Local Government Area] in which that brigade has been formed.

For example, a District/Team/Zone (DTZ) is generally aligned with Local Government boundaries. A Fire Control Officer (FCO) is appointed by the Commissioner to look after that DTZ. The brigades within that DTZ are therefore under that particular FCO’s authority, and I would assume that the delegation of powers under the Rural Fires Act 1997 via appointment as a Field or Permit Officer, would only be applicable to the LGA, regardless of any area of the Brigade which extends beyond this line.

My concern is in two parts:

  1. That a volunteer may be liable for damages where they believe to be operating under Division 3 of the Act but those powers potentially do not extend beyond the LGA line
  2. That permits issued in this overlapping area are not valid as they have not been issued under the authority of the appointed FCO for that specific DTZ.

I know that this is a very black & white view of the subject and that if a case like this was brought before a court, an area of grey might be applied; however on the face of it, would there be legal implications that RFS FCOs and Officers should be made aware of?

The answer has to be that the Rural Fire Service is the NEW SOUTH WALES Rural Fire Service.  It may be arranged in ways to coordinate with Local Government Boundaries but that in no way is going to limit the operations of the service or its brigades.

My correspondent refers to ‘Division 3 of the Act’.  The Act is divided into parts and each part is divided into divisions so there is more than one ‘Division 3’. I infer my correspondent means ‘Part 2, Division 3, Rural Fire Brigades’.    This Division provides for the establishment of bush fire brigades and their designated area of operation (s 18).  The power to designate a brigade’s area of operation and to appoint officers has been delegated to the District Manager (Rural Fire Service, Service Standard 1.3.1 Delegations and Authorisations (Including supplementary delegations – unincorporated area of NSW, 22 November 2013). The powers of a brigade, and brigade captain are vested by the Rural Fires Act 1997 (NSW) s 22 and the Commissioner’s delegation (Rural Fire Service, Service Standard 1.3.2 Powers of Officers, 19 March 2013).  Even though a brigade has an ‘area of operation’ (Rural Fires Act 1997 (NSW) s 18) a person appointed an officer of a Brigade is an officer whether the brigade is within its designated area of operations or not.  The captain of the Kickatinalong Brigade is the captain whether she or he is in Kickatinalong, Sydney or anywhere else.  Further the Kickatinalong Brigade does not cease to exist once they appliance and crew leave the relevant rural fire district.

There is ‘A total of 47 [Rural Fire] districts [that] are grouped into four regions’ (https://www.rfs.nsw.gov.au/about-us/our-districts).   There are more than 47 local governments in New South Wales (see https://www.lgnsw.org.au/about-us/nsw-council-links). Local government areas are established for each council (Local Government Act 1993 (NSW) Chapter 9).  What must follow is that rural fire districts may and in many cases must extend beyond a single local government area.  It is not the boundary of the local government that is relevant, but the boundary of the fire district.

The Rural Fires Act 1997 (NSW) s 37 says:

A fire control officer is, subject to any direction of the Commissioner, responsible for the control and co-ordination of the activities of the Service in the rural fire district for which he or she is appointed as fire control officer.

A Brigade officer has statutory authority to take all sorts of steps to deal with a fire and make premises safe (ss 22-26).  They do not need specific permission from the Fire Control Officer though they are subject to the Fire Control Officer’s direction and control (s 38).  The fire control officer can take command of firefighting operations and the operations of brigades, but they do not need to.  Fires may occur where a single brigade turns out and deals with the fire, or maybe there are two or three brigades under the command of a group captain.  Or there is a major campaign fire and the relevant Fire Control officer is acting as the incident controller.  All of those responses are possible.

Section 40 says:

The officer in charge at a fire, incident or other emergency may authorise any officer or member of a rural fire brigade or group of rural fire brigades to exercise all or specified functions under this Act of the officer in charge at a fire, incident or other emergency.

If a brigade is operating outside its designated territory it can do anything the officer in charge at the fire, or the Commissioner (s 39) asks them to do.

Discussion

The gist of this question is about out of area operations.  In short if a brigade is tasked to respond to a fire out of area it is authorised to perform any brigade functions as requested by the officer in charge at that fire.  The authority of a brigade is the authority of the Commissioner and the officer in charge of any fire or emergency.  There is no issue of going outside a brigades area of operations or fire district if the brigade is tasked to do so.

Even if that were not correct, on the question of volunteer liability let me assure readers of this blog – volunteers will never be personally liable (deliberate and criminal misconduct excepted).  When a brigade is asked to respond to a fire, the person making the request (whether it’s the person who calls triple zero or the incident controller) is not asking for Bill and June to respond, they are asking for the Rural Fire Service.  The Rural Fire Service is not a legal entity, but the Crown in Right of New South Wales is.  The Crown can sue and be sued but it cannot actually do anything – it has no hands or mind.  The hands and mind are provided by the people – the staff and volunteers – but when those hands and mind act, they are acting as the legal entity of the Crown.  That is a long way of explaining that if there is a default by any of those people, a person affected would bring a legal action against the State of NSW.  And the Crown will be liable for the negligence of its volunteers and staff because they are acting on behalf of the Crown (Crown Proceedings Act 1988 (NSW) and Government Sector Employment Act 2013 (NSW)).

As for permits that is a different matter.  Permits are issued under other provisions of the Act.  A fire permit is issued under s 89 and the power to issue those permits is delegated to the District Manager (Service Standard 1.3.1).  He or she can only issue a permit for his or her fire district.  If the land in question extends across more than one district the person wanting to light the fire would need to get permits from each District Manager.

Conclusion

The NSW Rural Fire Service operates across New South Wales.  There is no issue with brigades operating out of their designated area of operations when requested to do so by the Commissioner or a relevant officer in charge of a fire or other emergency.

I’m not sure I see the issue with respect to permits.

There are no ‘legal implications that RFS FCOs and Officers should be made aware of’.

Categories: Researchers

Posting on social media by police – and others

2 February, 2019 - 17:35

Today’s question relates to posting on social media by police, but in answering it I will extend my answer to other emergency services and other media.  The question I’m asked:

… relates to the various state police forces using social media in an informal way to shame offenders. BAC readings, confiscated cars and edited photographs of infringement notices (with alleged offenders name omitted by editing) have been posted regularly on Facebook.  Most have been photographed and posted on scene. These postings often attract some less than complimentary comments.

These offences are mostly strict liability and are dealt with by fixed penalty infringement notice. However, it the matter is challenged in court or the alleged offender is required to appear on summons, by posting the actual evidence before the infringement notice is paid, or the matter is put before a court, could this be an issue of bias?  Given the often “light-hearted” (or unprofessional) police commentary and reactive public comments of what the punishment would be, could that have a bearing against the offender’s common law right to a fair trial? As mostly these offences are in regional areas and the name of the offender is often posted in the comments.

I would be interested in your opinion on “trial by Facebook”.

This is not a blog on criminal law, so I’ll only briefly touch on the actual question (sorry). There are rules about publishing material that may influence a trial but that generally relates to a jury trial.  A jury may take into account material that is not presented in court and a jury.  Judicial officers (judges and magistrates) would say they are less likely to be swayed by extraneous materials so the risk of prejudicing a summary matter (ie a matter heard by a magistrate) is very low.  It follows that I don’t think publication of this sort of material would run the risk of influencing a trial or affecting the accused’s right to a fair trial before a judge or magistrate. The sort of matters being discussed are unlikely to lead to jury trials.

I think however there are other issues. I have previously written on the new ‘reality’ television involving cameras in ambulances – How are reality ambulance shows legal? (Updated) (October 9, 2018).  There are also reality police shows, think ‘Cops’ and ‘RBT’ and many more.  I think the issues between the police and ambulance are different.  When I call for an ambulance, or an ambulance is called for me, the paramedics are in a therapeutic relationship with the patient.  They are there to act in the patient’s best interest. Further the nature of the relationship would carry with it an expectation of confidentiality and privacy.  People are at their most vulnerable and share private information with paramedics for the purpose of enhancing their health care, not to create popular entertainment.  Facilitating film crews to attend and observe that interaction, and having cameras in an ambulance is, in my view, indefensible regardless of the community education that may be involved.

Police are different. When police investigate a crime or stop someone to administer RBT they are not that persons’ ‘police officer’.  They do not owe a duty of care to the person they are arresting or investigating – see No liability for police shooting (February 13, 2013) and Sullivan v Moody  [2001] HCA 59.  It’s been noted on this blog there is no right to privacy and people can film that which they can see from a public place.  That is true for television crews and police so if they are filming RBT stops or street scenes from their police car camera there can be no objection.  Equally one knows that a conversation with police is not subject to the same confidentiality, it may be repeated in evidence and that is the basis of the need for police to caution a suspect ‘that the person does not have to say or do anything but that anything the person does say or do may be used in evidence’ (Evidence Act 1995 (Cth) s 139).  That tells a person who is subject to official questioning that this is not a private chat.

That does however raise concerns in my mind in these shows where the video is taken in a place other than a public place eg at the police station or in the RBT ‘booze bus’.  Is the person cautioned that they are being videoed and that whatever they say or do in front of the camera may also be used in evidence?

That then brings us to the question of social media.  For the reasons given for television programs it should generally be considered inappropriate for paramedics or ambulance services to distribute information on social media about the jobs they are attending.  The same would be true for police.  I say ‘generally’ as there may be good reasons.  I can think of three reasons for putting information about jobs and photos of jobs on tv or social media.  They are:

  1. Public education;
  2. Brand promotion; and
  3. Community entertainment.

The argument for public education is that having shows like ‘Ambulance’ or ‘COPS’ helps to show people what is or is not appropriate conduct.  What is an ‘emergency’ that warrants a triple zero call; what is illegal conduct.  I can see that more from the perspective of police.  If a show like RBT shows people getting caught and saying why they thought they were ‘ok’ etc then viewers may relate to those on the TV and think “I can see that could be me and what I thought was OK, is not”.   Equally social media photos of unsafe vehicles or other events that lead to prosecution may be an effective way to demonstrate – “this is what we mean by unsafe load or unsafe driving”.  Ambulance shows may also demonstrate how easy it is to kill yourself.

Social media may be an important tool because of its immediacy to report that something is happening in a location in order to advise (another form of education) so people know to avoid the area or to try to limit rumours and speculation as to what is happening.

Brand promotion is the public relations exercise.  This shows people what we do so they have a better understanding. Again, this may be more important for police who are not always universally liked, unlike paramedics who are consistently rated in the top 5 most trusted professions in Australia.  Building brand recognition and value is important but should vulnerable people be used for that purpose?

Finally, there is simply public entertainment and sharing in a communal laugh at someone else’s expense.  Here I’ll share here my own experience.  Once I was a volunteer media officer for one of Australia’s emergency services.  I was part of a team providing 24-hour media support during an ongoing emergency and I had the night shift.  My job was to update the social media pages and I was required to add a post every time a unit was called out to a ‘flood rescue’.   What we meant by flood rescue was not what the world always assumed we met so each post was met with a regular flood (no pun intended) of comments about how stupid the person was to have got themselves into that position, even though the commentator, and I, had no idea what had happened and whether the person had driven into flood water, or was just on the wrong side of flood waters and needed urgent assistance to get to the other side.  I could see no value in what we were doing other than encouraging voyeurism as the people reading the posts certainly were not in the danger zone.  It may have been a way to build our brand (‘Aren’t we heroes?’) but mostly it was creating entertainment at someone else’s expense (and no I don’t volunteer in that role any more).

Aidan Baron and Ruth Townsend have written on ‘Live tweeting by ambulance services: a growing concern’ ((2017) Vol 9 No 7 Journal of Paramedic Practice 282-286).  They have created an ‘Intention-to-Tweet Decision Matrix’ which is reproduced below:

That matrix may not be directly applicable to police but certainly a matrix for police would not, or should not, look much different.

Discussion

The question I was asked was whether the use of social media by police was likely to affect an accused’s right to a fair trial and due process.  Put that way the question is out of scope for this blog, so the short answer is ‘unlikely where cases are heard, if they are heard, by a magistrate not a jury’.

What the question raised was, more significantly, the growing use of social media by police and emergency services.  Social media, the 24-hour news circle and the use of news, and tragedy, as entertainment is a reality in our world. It is trite to say that there is a difference between what is in the public interest, and what the public are interested in.  The public may be interested in whatever the emergency services are doing but that does not mean it is in the public interest to reveal all the details including sensitive personal information.

Having said that, this is a blog about law and legal issues. I don’t think the police are acting contrary to law if they, like anyone, film what they can see from a public place – so video or photos that police may take of offender’s in the street is fair game.  Information that police obtain because they are police and gain access to areas that others would not gain access to, such as the police station, is more problematic (see also Taking photos whilst on duty with the NSW RFS – amended (October 26, 2013)).

Police do not have the same relationship with an alleged offender that a paramedic has with a patient but the relationship of gaoler and prisoner is a well-recognised relationship giving rise to a duty of care so police must owe a duty of care to anyone who is under arrest and in their custody.

I think the test should be ‘if we would stop someone else taking images here, then even if we take them for forensic (court) purposes we should not tweet them’.  That means if they are interviewing someone in the street or conducting RBT, a person can film them so the police too can take and use images (see Bystanders photographing an emergency (February 2, 2016)  Interestingly, given my correspondent’s comment “I would be interested in your opinion on “trial by Facebook”” that post refers to an article “NSW Police Slam ‘Trial By Social Media’ As Mardi Gras Brutality Video Goes Viral.  If trial by social media is bad for police, it’s bad for everyone).

If someone wanted to enter a police station to film an interview or someone being breath tested, or if someone asked if they could take a photo of an officer’s notebook or an infringement notice, then police would (hopefully) say ‘no’.  If a citizen isn’t allowed to take that image, then police should not themselves publicise that image. To do so would, in the words of Baron and Townsend, be exploitative.

Categories: Researchers

Investigating workplace deaths

1 February, 2019 - 16:13

Readers of this blog would be aware of the tragic death of a Queensland paramedic in a motor vehicle accident on Monday 28 January 2019 (Talissa Siganto, Lily Nothling and staff ‘Paramedic dies in crash on way to emergency in North QueenslandABC News (Online) 28 January 2019).  Australian Emergency law extends our condolences to this man’s family, his colleagues and in particular those members of the emergency services that were called to the accident.

A general question has been asked:

Without apportioning blame, would you be able to discuss the legal process following such an incident? I’m interested in workplace law and coronial investigations that may follow.

What follows is of course general and not a reference to any of the particular circumstances of this accident.

Where a person dies in a motor vehicle whilst at work there are likely to be three interested investigators, police, the coroner and the work safety authority.

The police

The police will investigate to determine if any criminal offences have been committed by any person and will also assist the coroner with his or her functions. Police have to start with an open mind and have to rule in, or out, any possibilities.  It is likely therefore that there would be toxicology tests to ensure that the driver was not under the influence of any alcohol or drugs (legal or otherwise).  There is also likely to be a post-mortem examination to determine the cause of death.  Was it the accident or did the driver have a medical emergency that caused the accident?

The coroner

Because the death ‘was a violent or otherwise unnatural death’ it is a reportable death (Coroners Act 2003 (Qld) s 8).  The role of the Coroner is to determine (Coroners Act 2003 (Qld) s 45):

(a) who the deceased person is; and

(b) how the person died; and

(c) when the person died; and

(d) where the person died, and in particular whether the person died in Queensland; and

(e) what caused the person to die.

The police will have investigated the accident and in most cases (a), (c) and (d) will not be in issue.  The autopsy will also have determined (b) and along with the police investigation (e).

A formal inquest is not required.  Section 28 says:

(1) An inquest may be held into a reportable death if the coroner investigating the death is satisfied it is in the public interest to hold the inquest.

(2) In deciding whether it is in the public interest to hold an inquest, the coroner may consider—

(a) the extent to which drawing attention to the circumstances of the death may prevent deaths in similar circumstances happening in the future; …

If the matters listed in s 45 have been established and if there is no reason to think that there will be little or no value in ‘drawing attention to the circumstances of the death [to] prevent deaths in similar circumstances happening in the future…’ then the Coroner will not hold a formal inquest.

WorkCover Queensland

Under the Work Health and Safety Act 2011 (Qld) a person conducting a business or undertaking (a PCBU) must report a work related fatality (ss 35 and 38).  An Inspector can investigate to determine if there has been any breach of the Work Health and Safety Act.  One would hope that an inspector would work with Police to avoid duplication of their work.  The inspector is likely to become more involved if the police investigation reveals some systemic issue in the management of the workplace that contributed to the accident.

Conclusion

This is a very general discussion stimulated by, but not in reference to the death of the paramedic in Queensland.  Where a worker dies in a motor vehicle accident, any worker, then there may be a police investigation that the Coroner and WorkCover are satisfied identify all relevant issues and nothing further is required.  Or there may be a long detailed investigation by both Police and WorkCover and a formal coronial inquiry with witnesses called and examined, recommendations made and prosecutions launched.  Where the inquiries sit between those two extremes depends on all the circumstances.

Categories: Researchers

Deceased driver liable for police officer’s PTSD

1 February, 2019 - 14:10

[Name Redacted] v AAI Limited [2019] QSC 7 (30 January 2019) was a trial in the Queensland Supreme Court before His Honour Flanagan J.   The plaintiff was a former senior constable with the Queensland Police Service. The plaintiff sued the compulsory third party insurer of the motor vehicle seeking damages for post-traumatic stress disorder that he alleged was caused by the negligence of the driver who died at the scene.

The incident

On 17 February 2013 the plaintiff attended a single vehicle motor vehicle accident.   On arrival the driver was alive but seriously injured.   The plaintiff attempted first aid and tried to encourage the driver to not ‘give up’ ([26]-[30]). The driver’s parents arrived at the scene and the plaintiff also tried to reassure them and communicate to the driver that his parents were there ([31]).   Paramedics and the fire brigade arrived and took over treatment and the patient’s extrication.  The paramedics advised the plaintiff that the driver ‘was going to die’ ([35]).  The plaintiff in the company of another police officer and a supervising paramedic advised the driver’s parents that their son was going to die.  The plaintiff took the driver’s mother to her son so she could say good-by. The driver died at the scene ([35]).  At [36]:

The plaintiff reflected on why this particular incident, distinct from all the other experiences he has had as a police officer, affected him as it did.  The plaintiff explained as follows: [31]

“And I was just thinking, whether it was then, now, or since – because I’ve kids meself – you see them coming into the world; you never imagine burying them, do you?  But you’d never imagine seeing that.  It’s been rattling around my mind, why – all this stuff that I’ve said – why this hit me so hard.  And it struck me last night, because I’d spoken to Dominic: I’d never seen that before.  I had never seen that before.  I’d never seen anybody die before me eyes.  Fifty years old, two decades in the job, and I’ve never seen that before.  Because we clean up.  They’re either dead or they’re dying and there’s people taking care of that; we just clean up, and we investigate.  That’s what we do.  That’s what coppers do.  But – took me about two years to remove my son’s face from that – sorry if that’s not relevant, but … his face was superimposed on the lad’s – on the lad’s face.  I just kept seeing me son.”

The aftermath

Immediately after this incident the plaintiff began to display symptoms including drinking ‘a lot’, becoming ‘angry with people and over-reacting to situations’ and contemplating suicide and harming others ([38]).  He sought medical assistance.   A treating doctor reported (at [40]):

“[The plaintiff] has been a previously well-adjusted individual without significant psychological problems in his past.  With the assessment so far, I have not been able to recognise previous traumatic incidents contributing towards his current presentation.  Following the traumatic event of 17 February 2013, he has developed a range of psychological symptoms such as insomnia, anxiety, depression and specific post-traumatic symptoms such as flashbacks and reliving experiences.  With this range of symptoms my diagnosis is one of Post-Traumatic Stress Disorder (DSM IV code 309.81).”

Medical opinions confirmed that the plaintiff was permanently unfit to return to work as a police officer and he was dismissed from Queensland Police on 19 September 2014 ([45]).

The legal issues

The insurer stood in the shoes of the deceased driver.  The first issue is whether the defendant (or, as the defendant was the insurance company, the driver) owed a duty of care to the plaintiff.

Establishing a duty of care Foreseeability of psychiatric injury

This was a case of psychiatric injury, not physical injury.  There have been many attempts by the Common Law to limit liability for psychiatric injury (see also Rescuers and nervous shock or mental illness; Wicks and Sheehan v SRA (June 17, 2010)).  Today the key question is whether or not it is foreseeable that the defendant’s negligence will expose someone to a risk of psychiatric injury.  At [66] Flanagan J said (emphasis added):

Today, the satisfaction of multiple control mechanisms limiting liability for the infliction of pure psychiatric harm – among them requirements that a close relationship exist between the plaintiff and the victim of the accident in question, that the trigger for the plaintiff’s psychiatric condition be a ‘sudden shock’, that the plaintiff has directly witnessed the accident, and that the plaintiff be a person of ‘normal fortitude’ – is no longer requisite to the existence of a duty of care.  These requirements have been reduced in status; they are simply factors relevant to the primary question of reasonable foreseeability of psychiatric injury.

At [73]-[81] Flanagan J said:

The relevant enquiry as to foreseeability, then, is whether a reasonable person in Mr Williams’ position would have foreseen that a person in the position of the plaintiff, a serving police officer attending a motor vehicle accident of the kind that might result from Mr Williams’ negligence, might suffer recognisable psychiatric injury as a result of his experiences at the scene.  …

As a preliminary observation, and “[a]pproaching the matter in the first place as one of common sense and ordinary human experience”, it is reasonably foreseeable that, upon discovery of a motor accident such as the one involving Mr Williams, triple zero will be dialled, and emergency services personnel, including police officers like the plaintiff, will be summoned to the scene.  So much was acknowledged by Brennan J in Jaensch v Coffey, where his Honour observed as follows:

“Rescuers have recovered when they come to the scene of an accident to render assistance to the injured, for it was foreseeable that they would come to the scene and their arrival there was treated as being a result of the defendant’s careless conduct … The law treats a rescuer’s response to the victim’s injury as the natural and probable consequence of the conduct which causes the injury: ‘The cry of distress is the summons to relief.’”

Further, that it may be uncommon for a police officer like the plaintiff to arrive at an accident scene as a first responder, before any other emergency services personnel such as paramedics, does not prevent a duty being owed to the plaintiff.  Arriving at an accident scene in a “statistically unlikely manner” is no impediment to a successful claim if it is reasonably foreseeable that the plaintiff may in any case be called to the scene and suffer harm there.

In addition, the presence of Mr Williams’ parents at the scene was something occurring in the ordinary course of events. This is because, from Mr Williams’ perspective, it would not be unexpected for his parents and relatives to be present at the scene of a serious accident caused by his negligence.  Accordingly, to the extent that the presence of Mr Williams’ parents contributed to the trauma experienced by the plaintiff, this should not be viewed as outside the contemplation of someone in Mr Williams’ position.

Turning then to the central inquiry: whether it is reasonably foreseeable that, after his arrival at the scene, a serving police officer in the plaintiff’s position might suffer psychiatric injury.  This requires attention to those considerations to which the joint judgment referred in Wicks: would sights of the kind a police officer might see, sounds of the kind a police officer might hear, tasks of the kind a police officer might have to undertake be, in combination, such as might cause a police officer to develop a recognised psychiatric illness?

The plaintiff sought to draw an analogy between the facts of the present case and those of Jausnik v Nominal Defendant (No 5), a recent decision of the Supreme Court of the Australian Capital Territory. The plaintiff, Mr Jausnik, was a police officer, and was involved in a high-speed police pursuit of the defendant driver, coincidentally also named Mr Williams, which began in New South Wales and eventually entered the ACT.  In the course of that pursuit, Mr Williams negligently collided with a third vehicle, fatally injuring himself, severely injuring his passenger, and killing on impact all three occupants of the vehicle with which he collided, including an infant.  Mr Jausnik, along with his fellow police officer, Mr Hannaford, who had been driving the police vehicle, immediately attended at the scene.  Mr Jausnik as a result suffered psychiatric injury, and brought proceedings against the Nominal Defendant in place of Mr Williams.  The Nominal Defendant in turn joined Mr Hannaford, together with the State of New South Wales as employer of the police officers.

Though claims for pure psychiatric harm in the ACT are also governed by statute, Mossop AsJ’s findings in respect of Mr Williams’ duty of care to Mr Jausnik are nonetheless of assistance:

“… what must be shown is that Mr Williams should have foreseen that Mr Jausnik might suffer a recognised psychiatric illness as a result of Mr Jausnik being required to attend to persons suffering injuries caused by Mr Williams’ negligent driving. Put as a general proposition the question becomes: should a negligent driver have foreseen that a police officer of normal fortitude, attending the scene of an accident caused by the driver involving the death and injury caused in the present case, might suffer mental harm? When so expressed the answer is clearly ‘yes’. It is reasonably foreseeable that a police officer may suffer mental harm when attending the scene of an accident such as occurred here. …

Similarly, the death and injury involved in the scene at which the plaintiff attended were described by him as “horrific”.  In oral submissions, counsel for the plaintiff stated that while photographs of the accident had been tendered, he “did not necessarily invite” the Court to view them: “they show ghastly sights and sights that could scarcely fail to cause even the strongest of will to experience disquiet.” I accept that description; it went unchallenged by the defendant.

While the death and injury in Jausnik was necessarily greater than in the present case, due to there being one fatality here and four in Jausnik, this does not, in my view, render the plaintiff’s mental harm less foreseeable than Mr Jausnik’s.  The cases cannot be separated simply by cold calculation of death toll.  Mr Williams being the sole victim in fact lent a degree of intimacy to the plaintiff’s involvement.  Mr Williams suffered fatal injuries, and the plaintiff, essentially single-handedly for a time, sought to maximise Mr Williams’ chances of survival by moving Mr Williams’ head to clear his airway and trying to encourage him to stay alive.  He was frustrated by what he perceived as Police Communications’ interruption of his focused efforts.  His bare hands at one point were covered in matter from Mr Williams’ head.  He saw Mr Williams’ “very squashed” legs.  He sought to prevent further injury to Mr Williams by directing firefighters not to cut Mr Williams out of the vehicle.  The plaintiff’s experience was made all the more traumatic by the presence of the dying man’s parents at the scene; their presence, as I have previously observed, was not unexpected.  After having, quite naturally, sought to reassure Mr Williams’ mother that her son would live, the plaintiff stood alongside her as she watched her son die.  To adopt the words of Mason P in FAI General Insurance Co Ltd v Lucre …“[o]ne does not need to be a psychiatrist to understand the reality of the respondent’s reaction.” It was reasonably foreseeable.

Foreseeability is not enough

But reasonable foreseeability, that is that the injury can be (or should have been) foreseen by a reasonable person is only part of the test to establish a duty of care.  On its own, it is not enough.  Essentially what is required is an analysis of the relationship between the defendant and the plaintiff to determine whether or not the defendant owed the relevant duty or obligation, not to expose the plaintiff to the risk of injury.

The plaintiff did not see the accident but he saw the aftermath

The defendant argued that the duty of care (if there was one) only extended to those that observed the actual accident, not those like the plaintiff who came upon it some 10-15 minutes later.  The court rejected this principle that was said to depend on much earlier cases.  At [88] Flanagan J quoted Deane J from the High Court of Australia who said in Jaensch v Coffey (1984) 155 CLR 549:

“Nor do the cases support the approach that the requirement can only be satisfied by a plaintiff who saw or heard the actual accident: both common sense and authority support the conclusion that the requirement of proximity of relationship may be satisfied by a plaintiff who has suffered psychiatric injury as a result of what he or she saw or heard in the aftermath of the accident at the scene …”

At [93] Flanagan J concluded that:

What the plaintiff saw at the scene falls within the ambit of Deane J’s concept of an aftermath.  That concept extends to extraction and treatment, along with ambulance transport.  The plaintiff, as a first responder, arrived at the scene before any ambulance, and before the firefighters who eventually extracted Mr Williams from his vehicle.

The plaintiff was not a ‘mere bystander’

The defendant argued that a duty was not owed to a ‘mere bystander’ that is (at [101]) ‘a person who witnesses an accident or its aftermath but is entirely unrelated to any of the victims’.  Flanagan J was of the view that the law did not necessarily deny a ‘bystanders’ claim ([102]) but in any event the plaintiff was clearly not a mere bystander.  At [103] he said:

… the plaintiff could not sensibly be described as a mere bystander to Mr Williams’ death.  He took steps to keep Mr Williams alive.  He encouraged Mr Williams.  He sought to comfort Mr Williams’ parents.  He instructed firefighters not to cut Mr Williams from his vehicle until paramedics arrived.  Having been informed that Mr Williams was near death, he assisted Mr Williams’ parents in saying a final farewell to their son and he observed Mr Williams pass away.

The plaintiff was a rescuer

Further the plaintiff was in an established category of people to whom a duty of care is owed, ie a rescuer.    In Alcock v Chief Constable of South Yorkshire Police Lord Oliver said (and quoted at [107]):

It is well established that the defendant owes a duty of care not only to those who are directly threatened or injured by his careless acts but also to those who, as a result, are induced to go to their rescue and suffer injury in so doing. The fact that the injury suffered is psychiatric and is caused by the impact on the mind of becoming involved in personal danger or in scenes of horror and destruction makes no difference.

Flanagan J reviewed earlier cases and confirmed (at [118]) ‘that the plaintiff may be classified as a rescuer, he is entitled to recover, subject to the policy concerns’.

Policy concerns against finding a duty of care

The ‘policy concerns’ raised by the defendant were that:

… the plaintiff’s status as a police officer – that is, a holder of statutory office – at the time of the accident informs the plaintiff’s relationship with the deceased, Mr Williams, and precludes any duty being owed to the plaintiff. This submission comprises three primary arguments, which may be summarised as follows:

(a)          A duty being owed to the plaintiff would discourage members of the public from reporting incidents requiring police attendance, and is therefore inconsistent with the public benefit aims of the legislative scheme establishing and governing the QPS.

(b)          A duty being owed to the plaintiff would expose defendants to unjustifiably expanded liability in respect of psychiatric harm.

(c)          Members of the public are entitled to expect that a police officer deployed to the scene of an accident will be equipped, by way of sufficient training and experience, to avoid pure psychiatric harm.  Injury of that type is accordingly not reasonably foreseeable, and no duty arises.

Flangan J rejected all of those arguments.

With respect to the argument that people may not call police for fear of subjecting officers to a risk of psychiatric harm, and therefore exposing themselves to a risk of liability, Flanagan J said (at [126], emphasis added):

I note at the outset that, as a matter of established law in this country, a civilian may already be liable for physical harm suffered by police officers while responding to an incident, such as a car accident or fire, caused by the civilian’s negligence.  No ‘firefighter’s rule’ barring emergency service personnel from claiming for physical injuries has been imported into Australian courts from their US counterparts.  This duty in respect of physical injury to police officers is yet to be denied on the basis that it may deter members of the public from reporting emergencies.  I see no reason why a duty in respect of psychiatric harm should be said to have such a deterrent effect where the same is not said of physical harm.

(The ‘Fireman’s [sic] Rule’ applies in some US states to the effect that one cannot owe a duty to firefighters not to create the very emergency that they are there to respond to.  (For a discussion on the Fireman’s Rule see the various posts on Curt Varone’s Fire Law Bloghttp://www.firelawblog.com/?s=Fireman%E2%80%99s+Rule)).

Accidents will still be reported and drivers are obliged to report accidents even where they may expose themselves to a risk of criminal penalty.  That they may be liable for causing injury to police officers and other rescuers will not reduce the chance of accidents being reported.

The risk of opening the floodgates so everyone can sue for psychiatric injury was rejected at [135] ‘courts are equipped to control any increase in claims by adopting a principled approach to the particular facts of each case…’

As for a reasonable expectation that police will be trained to avoid injury that may be relevant in a physical injury case.  If a ‘police officer were confronted at an accident scene with “jagged metal when leaning into the vehicle to retrieve an item or to provide first aid to a victim” and cut himself or herself on that metal through his or her own failure to approach the scene safely’ ([144]) then there may be no liability but psychiatric injury is a different matter.  As Flanagan J said at [148]:

An accident scene, like a fire, is inherently dangerous from a psychiatric perspective.  A person who by their negligence causes such an accident must have in contemplation the fact that police officers are human and, as the plaintiff submits, not entirely immune to psychiatric injury, even where they make use of all available training, experience and detachment techniques the public might expect them to have acquired.

Conclusion on Duty of Care

Flanagan found that the deceased driver did owe the relevant duty of care to the plaintiff that being a duty not to expose the plaintiff to the risk of psychiatric injury due to his, that is, the driver’s, negligence.

Breach

It was not disputed that the collision was caused by the negligence of the driver who was under the influence of methamphetamines, amphetamines and marijuana when he drove his car into a tree.

Causation

The defendant’s breach (his negligent driving) had to cause the plaintiff’s injuries.  The problem for police and other rescuers is that they attend multiple traumatic events and saying that their illness, in this case the PTSD, was caused by ‘this’ accident is difficult.  In this case the matter was compounded by evidence of other traumatic events.

The defendant accepted that the accident where Mr Williams died was a cause of the plaintiff’s injuries but not the only cause and so the damages payable should be reduced to reflect the contribution of this accident among many.

In particular, on 22 August 2014 the plaintiff, whilst off duty, stopped at a car accident.   The vehicle had left the road and the plaintiff did a search of the scene by mobile phone torch light. He located two deceased children and a third, critically injured child.  At [53] Flanagan J said:

… the plaintiff in recalling the events of 17 February 2013 became very distressed.  This is to be contrasted with how he gave his evidence in recalling the events of 22 August 2014.  He did not become upset while recalling these events and demonstrated a degree of detachment.  The plaintiff gave the following explanation as to why he subjectively considers the first incident the worst of the two experiences:

“Mr [Plaintiff], in your mind, which was the worst of the two experiences, February 2013 or August 2014?— I wouldn’t want to be disrespectful to the dead, and I know there’s a mum out there who doesn’t have a son any more.  I – I sort of – in dealing with carn – the carnage is – it’s not hard to deal with the carnage.  It’s just – it’s their bodies.  And that might sound quite mercenary.  You don’t get attached as a copper emotionally.  That’s a really bad thing to do.  You try to just be pragmatic.  You’re there to investigate.  That’s your job.  That’s what they always used to say.  You’re there to investigate.  If you’ve got to deal with a body, well, you just deal with it.  If you’ve got to deal with blood and guts, that’s just the – that’s just the nature of the job.  Never bothered me.  Never bothered me.  You see, that one – I – I don’t want – I don’t want to put these on tiers of brutality because a mum and three dead kids is carnage.  It was just carnage, you know.  And I’d seen it a hundred times before but that first one was carnage.  It wasn’t as much carnage because there was less dead bodies but it sort of just tapped into me with his mum and I found out he got three kids.  He hadn’t long been married.  It’s just horror stories.”

The court accepted (at [161]) that the plaintiff ‘had a pre-existing vulnerability to suffering a psychiatric injury such as PTSD’. The plaintiff’s ‘pre-existing vulnerability’ suggested that if he had not developed PTSD as a result of this accident then it would have been the second one or some other event that he would, inevitably, be exposed to as a police officer.   In Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208, quoted at [177], Ipp JA said:

Appropriate allowances must be made for these contingencies. A proper assessment of damages requires the making of a judgment as to the economic and other consequences which might have been caused by a worsening of a pre-existing condition, had the plaintiff not been injured by the defendant’s negligence. A pre-existing condition proved to have possible ongoing harmful consequences (capable of reasonable definition) to the plaintiff, even without any negligent conduct on the part of the defendant, cannot be disregarded in arriving at proper compensation.

The appropriate allowance, in Flanagan J’s opinion was 30%.  The agreed damages, all else being equal, were $100000.  Allowing the 30% discount to reflect that this injury was likely to be suffered at some point in the future even without the defendant’s negligence meant an award of general damages of $70 000.   With awards for past and future economic losses, loss of superannuation and other matters the total award was $1,092,947.88.  The plaintiff would have to refund amounts already received from Workers Compensation but no doubt this was a more generous verdict than available under Workers Compensation law.

Discussion

The first thing to note is that this is a ‘first instance’ decision of the Supreme Court.  It may be subject to appeal, we don’t know.

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

Whether that is a productive exercise depends on the damages suffered and the extent of compensation from other sources, in particular Workers Compensation.  Suing the negligent defendant does however remain an option for those in need.

 

 

Categories: Researchers

Prevent or respond – a question for emergency services

29 January, 2019 - 12:45

The mantra is Prevent, Prepare, Respond and Recovery. Preventing an emergency is better than responding to one; but equally we want resilient communities where individuals and communities take responsibility for managing their own risk.  But that still leaves the emergency services to respond if and when the residual risk manifests.   So where does the role of the emergency services sit when it comes to ‘prevent’?  That is the essence of today’s question that comes from Adelaide.  My correspondent has noticed:

A large tree is growing in one of the private residences, right on the edge, literally, of a lane – there is no footpath.  This tree has a diameter at the base of abut 1.5 metres and a height of, maybe, 30 to 40 metres – I.e. a ‘significant’ tree.  A broken branch was lying across two other branches at a height of 15 to 20 metres.  The butt of the branch was about a metre into the lane on the tree side and the branch extended across the lane and finished about 2 to 3 metres over the first-floor open car park area of a business on the other side.  It had been there for some time because the leaves were dead.

I advised the resident in the house and she said that she would inform the owner (she is renting).  I advised the business on the other side and the receptionist said that she would notify the council, which I had intended to do, as well.

As an SES volunteer, I also called it in to the SES reporting line.  In Adelaide, these calls go the MFS call centre.  After I explained the situation, the call-taker said that it was not their responsibility; it was the responsibility of the land-owner.  I knew that it was too high for SES to handle, but the MFS has aerial units that would reach it and I thought that they may respond.

I suspect that it is the responsibility of the land-owner, but is this the case?  Would it constitute enough of a risk for emergency services to be involved?

The problem is, in essence, that the emergency services legislation says very little about what the emergency services do. It may be axiomatic that fire brigades respond to fires so if there is a fire everyone knows that it’s the fire service job. And the fire brigades have specific duties and powers with respect to preventing fires (see Fire And Emergency Services Act 2005 (SA) ss 71-95A and ss 105A-105K (relating to the Country Fire Service)).  But for other hazards the issues are not so clear.

The South Australian State Emergency Service has a number of functions relating to dealing with emergencies, including ‘to assist the State Co-ordinator, in accordance with the State Emergency Management Plan, in carrying out prevention, preparedness, response or recovery operations under the Emergency Management Act 2004’ (s 108(1)(b); emphasis added); and ‘to deal with any emergency— (i) where the emergency is caused by flood or storm damage’ (s 108(1)(d)).

Emergency is defined (s 3) as:

… an event (whether occurring in the State, outside the State or in and outside the State) that causes, or threatens to cause—

(a)  the death of, or injury or other damage to the health of, any person; or

(b)  the destruction of, or damage to, any property; or

(c)   a disruption to essential services or to services usually enjoyed by the community; or

(d)  harm to the environment, or to flora or fauna;

A dead tree limb hanging over a lane threatens to cause death or injury should it fall on someone, may damage property and would certainly disrupt ‘services usually enjoyed by the community’ if it fell and blocked the lane.

If this lane was moved to New South Wales, the NSW State Emergency Service is to ‘to protect persons from dangers to their safety and health, and to protect property from destruction or damage, arising from floods, storms and tsunamis’ (State Emergency Service Act 1989 (NSW) s 8(1)(aa)).  Removing a dead limb that, if it falls during a storm, may cause injury and would block a road would ‘protect persons from dangers to their safety and health’.  But I don’t think anyone would seriously expect that the SES in either SA or NSW would respond to this job.

The answer is however that there is no clear legislated line.  It would be quite consistent with the Act for the services to see a hazard and seek to remove it but there does have to be a line.  The SES are not going to clean someone’s gutters as that will reduce the risk of damage due to storm; nor are the fire brigades going to check domestic electricity installations as that will prevent fire and every adopts the PPRR mantra.   The line is drawn in effect by the emergency services.  They have been created by government with a broad range of functions and it is then up to the Chief Officers to determine what they do and what they do not do.

They only have limited resources and have to ensure that they can do what is clearly their role which is ‘respond’ to the emergency.  This reasoning in part explains why, as has been said here before, there is no legal duty on the emergency services to respond and why the allocation of resources by government to agencies such as the SES and then within the SES cannot be challenged in court.  If the Chief Officer assigns the bulk of the budget to response, some to community education and none to removing obvious hazards from trees across public lanes, that cannot be challenged in court.  That is his or her call as to how the service is to operate.

What follows is that, in my view, it would not be inconsistent with the Fire and Emergency Services Act 2005 (SA) for either the Metropolitan Fire Service or the South Australian State Emergency Service to respond to this notification of a threat to life and property.  There is nothing in the Act to say that they must attend, and nothing to say they must not.  It’s really up to them to decide how they allocate their resources.

Even if the tree limb fell it’s not clearly anyone’s responsibility.  Council own the lane and like any landowner can chose to call the emergency services or not.  If there is a person trapped under the tree then it’s going to trigger an emergency response but if it’s just on the road, the council, the owner, a bystander or the SES may choose to remove it.  If it fell on a person or car it would be impossible to sheet legal responsibility to the emergency services for failing to remove it when they knew of it (see No duty to prevent a disaster and no duty to rescue (December 26, 2018) and see also State of NSW v Tyszyk [2008] NSWCA 107 discussed in NSW Police owed no duty of care to the family of fatal accident victim (December 1, 2017)).

Legal responsibility for the tree, in terms of who will have to pay if it does fall and cause injury or damage, is the tree owner – see Liability for dangerous trees (April 28, 2015).

Categories: Researchers

Identifying that your employee is suffering isn’t enough, you have to do something about it!

27 January, 2019 - 13:05

That’s the lesson (hopefully) learned by St John Ambulance Australia (Queensland) following the decision in [Name redacted] v Workers’ Compensation Regulator [2019] QIRC 022 (January 21 2019).

The appellant (and I’m not giving his name as it’s not important) was one of three full time first-aid instructors employed by St John Ambulance in its Townsville office. He commenced part-time employment with St John Ambulance in February 2012 and from 14 January 2013 was a full-time employee.

The appellant was diagnosed with a recognised mental illness, and this diagnosis was not in dispute.  What was in dispute was whether or not the workplace provide the major significant contributing factor to the injury and whether or not he was entitled to workers compensation.

An excessive workload

Vice President O’Connor said (at [13] and following):

For most of 2015 the Townsville office had three full-time trainers and seven office administration staff. The full-time trainers were supplemented with casual trainers…

The St John organisation experienced a significant restructure during the appellant’s final months of employment. On 15 December 2015 the Chairman of St John wrote to all staff advising that as part of a review the board had decided that it would be necessary to reduce staff numbers by retrenching some positions to improve the financial viability of its operations…

The downsizing of staff coincided with the resignation of [the other two] full-time trainers …

The ‘North Queensland Regional Manager who also had responsibility for the Mackay office’ ([13]) also resigned though her employment was continued until March 2016 ([15]).

The appellant communicated with the state headquarters in Brisbane and the need for additional staff was noted.   A new instructor was appointed in March 2016, but for reasons that are not explained, she remained for only five days. The appellant (at [17]-[18]):

… was saddened by [her] resignation as she was a trainer with an experienced background and he had been heartened that she had joined the team. During this time it was the appellant’s understanding that St John was constantly looking for new full-time trainers. He gave evidence that he could not fulfil the role of training and complete all of the other tasks that needed to be done around the workplace.

Significantly, additional full-time trainers were not employed until shortly before the appellant’s last day of work on 28 June 2016.

The appellant was (at [7]):

… passionate about first aid and takes the role of first aid trainer seriously. The appellant’s interest in first aid began when he worked as a detachment commander in the Australian Army in Cambodia. It was through this experience that it became evident to the appellant for the need for prompt and urgent first aid.

As is common in organisations that employ people with passion, The appellant took on more and more work as the number of staff diminished.  At [19] Vice President O’Connor noted:

Since 2012 the appellant had shown a willingness to manage the store supplies because in his words “at times we were running out of things”. The appellant said his role broadened…

A new North Queensland Regional Manager was appointed, and the appellant wrote to her to detail issues in the Townsville office to do with staff and resources ([20] and following]).  The workload began to take its toll.  At [26]-[29] Vice President O’Connor said (emphasis in original)

There were signs that the appellant was at risk of burning out as early as 2015 and this can be seen in the appellant’s performance appraisal of 5 January 2016 which was completed by [the North Queensland Regional Manager]:

[The appellant] has had a very busy 2015 which has seen him work many more hours than usual. He has done this willingly and without complaint and maintained an excellent training standard…

[The appellant’s] continued diligence can be very exhausting on him personally. I would like to see him take a step back and be a little kinder to himself…

The performance appraisal of the appellant indicates that the employer was aware that the appellant had been working more hours than usual and that his work ethic meant he did this willingly and without complaint.  It also identifies that the appellant had made numerous attempts to resolve issues at work however the employer had not addressed these attempts.

There was discussion, at various levels, about getting new trainers both casual and permanent but, in fact (at [35]) ‘no steps were taken to source trainers from outside the Townsville area’ and the Regional Manager could recall no time of allocating his work to casual staff but she did say ‘I’m fairly confident I must have at some point’.  (As an aside one would have thought that if there had been casuals employed there would have been pay records that would have been identified what casuals were employed and when, but there was no discussion about the existence, or absence, of such records).

Adding insult to injury

In June 2016 the appellant travelled to Brisbane for training.  Whilst there a complaint was made about his conduct.  Rather than deal with it there and then, The appellant was ordered to leave the training and travel to the Brisbane HQ to meet with the CEO.  At the head office he was required to wait for 20 minutes before a meeting with three people where he was not sure of what the complaint was and was not offered a support person.   The meeting concluded that the issue ‘was an obvious misunderstanding which did not warrant any further investigation’ ([39]).  At [40]

The appellant recalled that he felt bewildered and gutted as a result of the allegation. He said he could not believe that after flying from Townsville and being excited to undertake the training that this would happen… The appellant could not believe that something so minor had led to him being requested to leave the training and asked to attend a meeting at Head Office.

During the course of the meeting the subject of the appellant’s well being came up and it was noted that he was working very hard.   It was made clear to him ([41]) that ‘he should rest and have some time away from the organisation’.  An offer was made that he could take advantage of the ‘new Employee Assistance Provider (EAP)’ but that assistance ‘was not forthcoming as no such scheme existed to which the appellant could access’.

Was the workplace a major contributing factor?

The respondent (ie the insurer, not necessarily St John (Queensland)) argued (at [54]) that it was not the workplace but the appellant’s ‘personality traits which have contributed to the development of any injury.’  Vice President O’Connor disagreed.  At [68]-[70] he said:

I accept that the appellant had a demanding workload. The restructure within St John and resignation of the two full-time trainers increased the appellant’s workload. He was the only full-time trainer in Townsville. On occasions he worked up to 87.5 hours per fortnight. This is not withstanding that his contract of employment specified that his ordinary hours of work were 38 hours per week. He had administrative responsibilities including planning resources, preparation and cleaning. He complained about his workload and it was known and acknowledged by the employer that the appellant’s workload was having an adverse impact on his health. Notwithstanding this, the appellant’s responsibilities were not reduced or modified.

The fluctuation in the appellant’s workload was attributable to the demands of his employment and no positive steps were taken by the respondent to manage the workload. Dr …’s diagnosis of adjustment disorder or a major depressive disorder was consistent with the appellant’s complaints. The appellant’s employment was according to Dr … the major significant contributing factor to his injury.

I accept that the appellant’s employment was the major significant contributing factor in the occurrence of the injury. I do not accept the argument that the employment was the setting in which the injury occurred or the background to its occurrence. It was in my view more probable than not that there was a clear causal relationship between the appellant’s employment at St John and the development of his psychiatric or psychological condition.

Is compensation payable?

Most if not all modern worker’s compensation legislation has provisions to the effect that compensation is not payable for injuries, in particular psychiatric injuries, caused by ‘reasonable management action taken in a reasonable way’ (see [71] and s Workers’ Compensation and Rehabilitation Act 2003 (Qld) s 32(5)). The purpose of those provisions is for example, to stop people who are counselled for poor work performance or perhaps put on a performance management program then seeking compensation when an employer has to be able to get staff to actually perform their work.

Vice President O’Connor said (at [76]):

The management action said by the respondent to enliven s 32(5) of the Act included the responses to the appellant’s complaints regarding his workload; putting in place systems to reduce the work which the appellant had to perform; and the management action taken to address the “conduct” in the training session on 28 June 2016.

The Parliament did not intend to mean that any instruction was a relevant management action.  A relevant management action ([79]) has ‘to relate to specific management action directed to the appellant’s employment itself, as opposed to action forming part of the everyday duties or tasks that the worker performed in their employment’.  The things that the respondent relied on were no more than day to day operational direction and were not ‘management action’ as intended by s 32(5). Even if the actions were relevant management actions (at [83] and [86]):

I am of the opinion that the action taken by the employer was unreasonable. I have formed that view having regard to the fact that during the period of December 2015 (when the other full-time trainers resigned) until shortly before his last day of work, the appellant was the sole full-time trainer. It was well known to the employer that the appellant was under stress and this is demonstrated in the performance appraisal of the appellant completed in January 2016. It was clear to [the Regional Manager] that the appellant was demonstrating symptoms of frustration, fatigue and burnout arising from his work in April 2016. [The Regional Manager] accepted in her evidence that the employment of an additional full-time trainer would have reduced the appellant’s workload. Whilst the employer maintained a list of casual trainers I accept that [the Regional Manager] adopted a position whereby she would assign full-time trainers first and then additional courses would be assigned to casuals as needed. When asked in cross-examination if she could recall a single instance when she had allocated a casual trainer she was unable to do so. [The Regional Manager] accepted that she took no steps to source trainers from outside the Townsville area to reduce the appellant’s workload this is not withstanding the evidence of Mr Moren that there was no impediment in doing so…

I do not regard the management action taken in relation to the complaint on 28 June 2016 was reasonable. The appellant was asked to leave a training session course; was given limited explanation as to the nature and extent of the complaint; his explanation … was not initially accepted; he was asked to attend a meeting at head office; three senior executives were in attendance; there was significant power imbalance between the appellant and the executive team; and, he was not offered a support person. The meeting was conducted against the background that the employer had knowledge that the appellant was not in good health. Whilst it may have been necessary to investigate the complaint, I do not accept that it was necessary to conduct the investigation in the manner that it was. I do not consider that the nature of the complaint required that the appellant be asked to leave the training session and it could have been appropriately addressed at the conclusion of the session. There is no material before the Commission to suggest that the matter required an immediate response. In the circumstances, the approach taken by the employer was not, in my view, reasonable management action taken in a reasonable way. Accordingly, s 32(5) of the Act is not enlivened to exclude from the definition of injury the appellant’s psychiatric or psychological disorder.

Result

The appellant was entitled to be paid workers’ compensation.  An earlier decision of the Workers’ Compensation Regulator rejecting the application for compensation was set aside.  The appellant will now receive compensation in accordance with, and be subject to the procedures of, Workers’ Compensation and Rehabilitation Act 2003 (Qld).

Discussion

On one view this post if not really relevant to this blog.  It is about workers’ compensation law.  It says little new about the law and the only link to the emergency services is that the respondent was St John Ambulance (Queensland).  The appellant was a first aid instructor, not a responder.

I did think about the value of reporting on this case but did determine that because the employer was St John Ambulance (Queensland) it did warrant a report here.  Many readers of this blog are involved with St John Ambulance nationwide (including the author who is on the Board of St John Ambulance (ACT)).  Mental health issues across the emergency services (and as other posts show I’ve always included first aiders and first aid training in that category) is a matter of increasing interest and concern.  How a leading provider of first aid training and operations dealt with the issue is therefore of legitimate interest to readers of this blog.

The issue, too, is not just to see that this case occurred, but to learn from it. The learning that I would urge people to take away from this is that identifying that your colleague or employee is being subject to stress and suffering ‘burn out’ from an undue workload is not the end of the story.  If that is the case something needs to be done.  Telling a staff member to take time off but failing to provide the resources to allow that to happen is not a reasonable response to the identified need.  Even more so when you know the employee is passionate and committed and rises to fill the need.  Allowing him or her to burn out and then say ‘they should have done less’ is also not acceptable.

In colloquial terms, if (and particularly if you are an employer) you’re going to ask ‘R U OK?’ you have to be prepared to do something if the answer is ‘no’.  Now that is not what happened here, it was not that they asked, but the employer knew the appellant was not ok and knew that it was the workload that was the problem. But they took no steps to actually manage the problem other than to acknowledge its existence.  That was not good enough.

The fact that St John now has to pay workers compensation insurance for who knows how long is a problem for them. The fact that a committed passionate employee has had a career lost and no doubt a loyalty and passion destroyed is far worse.

Categories: Researchers

Pill testing

17 January, 2019 - 11:42

I have been asked to write about calls for pill testing at music festivals.  A google search revealed a raft of stories on the subject – these from just the first page of results:

In a blog about emergency law it’s not my place to rehearse the arguments for or against pill testing; that is done in the articles above and no doubt many, many more that can be found online and in print.   I will consider the issue from a legal and emergency management policy perspective.

EM Policy

From a policy perspective pill testing would be consistent in my view with the concept of resilience put forward in the National Strategy for Disaster Resilience (2011).  One death by drug overdose is not a ‘disaster’ from the perspective of the state but it is a disaster for the family of the deceased.  The National Strategy wants individuals and communities to own and understand their risks.  It’s talking about natural hazards – floods, fires etc – but the principle remains the same.   The National Strategy says that:

Governments, at all levels, have a significant role in strengthening the nation’s resilience to disasters by…

  • having effective arrangements in place to inform people about how to assess risks and reduce their exposure and vulnerability to hazards;
  • having clear and effective education systems so people understand what options are available and what the best course of action is in responding to a hazard as it approaches;

I appreciate that it’s drawing a long bow to link pill testing to disaster resilience, but I do suggest that the principles are the same.  Resilience is not enhanced by telling people ‘don’t live here’ or even ‘don’t enter flood waters’.  Telling people what to do is not effective, having them understand risks so that they may make an informed choice to act or not act is more likely to lead to resilient decision making.  Pill testing may mean that people who are looking for information get better informed about the risks.  Telling people about the risk of a drug is only part of the issue.  They may decide to accept whatever risks are said to come from ecstasy, or heroin or ice or whatever but informing them of the other poisons that are in the pills may make them change their mind.  Further, as noted in the articles above, the way pill testing has been done or proposed it comes with opportunities to engage with those that may be thinking of taking drugs to improve understanding of the risks.

If it is believed that informing people of risks will lead to better risk management behaviour, then this is an example of that sort of campaign.   We know that catch phrases like ‘if it’s flooded; forget it’ (or ‘just say no to drugs’) don’t affect behaviour as might be hoped. The message has to be contextualised and made relevant to the people who may make decisions (see for example the Queensland Government campaign and by Sue Daniel and Siobhan Fogarty ‘Car experiment shows extent of flood danger’ ABC News (Online) (18 June 2016)).  If that’s true for floods, then pill testing (as well as other approaches) may be a way to bring home the real risk that potential drug users face.

My first point is, therefore, that taking steps to give people information about the actual risk involved in their decisions is consistent with the larger risk management approach that Australia has adopted with respect to other risks.  And whilst drawing the link with the National Strategy for Disaster Resilience may be tenuous, I do that, given the audience of this blog, to show that the approach is not inconsistent with the approach to risks that we are familiar with.

The law

A major difference is that driving into flood waters or living in a fire prone area is not illegal, taking drugs is.  In New South Wales it is an offence to supply, possesses or self-administer a prohibited drug (Drug Misuse and Trafficking Act 1985 (NSW) ss 10, 12-14, 25 etc).  (I use NSW as my exemplar jurisdiction as that is where the debate appears to be taking place given the resistance by Premier Gladys Berejiklian to the use of pill testing. I also assume that the drugs people are seeking to take are prohibited).

Police may stop and search a person where they have reasonable grounds to believe they are committing an offence or ‘has in his or her possession or under his or her control, in contravention of the Drug Misuse and Trafficking Act 1985, a prohibited plant or a prohibited drug’ (Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) s 21).  If there is a facility for pill testing, police may well form the view that they suspect anyone who is going into that room is in possession of a prohibited drug and they can therefore search them and if they find drugs arrest and charge them.   There suspicion would be even more well founded if they waited until after the drugs had been tested – if the test reveals that what the person brought has no drugs in it then there is no offence, but if the test confirms the presence of prohibited drugs that would be further evidence to justify a search and arrest.

It follows that if there is to be pill testing and if it is to work, there would have to be agreement with local police that they would not stop and search those going into and out of the premises.  Whilst I cannot locate a public record of the talk, there was a very interesting presentation at the St John Ambulance Australia 2018 National Convention in Canberra where a representative of the Australian Federal Police discussed the negotiation and process that was required to allow pill testing to proceed at the 2017 Spilt Milk Festival (see Ange McCormack ‘ACT Government approves free pill testing at Spilt Milk festivaltriple J Hack (September 22, 2017)).

There are offences of aiding and abetting drug taking. For example, s 19 of the Drug Misuse and Trafficking Act 1985 (NSW) says:

A person who aids, abets, counsels, procures, solicits or incites the commission of an offence under this Division is guilty of an offence and liable to the same punishment, pecuniary penalties and forfeiture as the person would be if the person had committed the firstmentioned offence.

Drug testers would not be guilty of this offence.  To be guilty of an offence such as this the defendant has to actually intend or desire to assist the principle offender to commit the offence.  A drug tester may not want the person to take drugs and, given the explanations of how pill testing has been used, may actively counsel the person against taking the drugs.

Further pill testing is about testing the pills to determine what is in them.  It is not, or need not be, about testing to confirm the purity of the drugs, rather it’s testing to determine the impurities in the pill.  It’s not encouraging people to take drugs but discouraging them from taking whatever is in the pill that may kill or harm them.

There have been suggestions of legal liability (see again Ange McCormack ‘ACT Government approves free pill testing at Spilt Milk festivaltriple J Hack (September 22, 2017)).  That article asks:

What happens if you have your drugs tested, get a concerning result, but decide to take them anyway? Could Harm Reduction Australia or the other groups on site be liable for what happened to you?

Gino Vumbaca says the consortium has received legal advice on this issue, and that it isn’t a “black and white” scenario.

“Our understanding is we wouldn’t be [liable],” Gino says.

There is no duty to protect people from harm that they intend to cause themselves (Stuart v Kirkland-Veenstra [2009] HCA 15) nor is there authority to stop people taking risks that they chose to take but someone else thinks is unwise (see PBU & NJE v Mental Health Tribunal [2018] VSC 564 discussed in the post Victorian decision on refusing medical treatment – reviewing the principles (November 24, 2018).

Providing the pill testing took place in the way described in the various articles above, with no assertion that a pill that even if it contains no contaminants is therefore ‘safe’ to take, then there could be no liability.  The position could be confirmed with appropriate disclaimers – Civil Liability Act 2002 (NSW) ss 5L and 5N).

Discussion

I do not attempt to persuade anyone on whether pill tasting should or should not take place.  Nor do I enter into the argument of whether or not the possession of drugs for personal use or the self-administration of those drugs should or should not be illegal.  As the law currently stands it is illegal to possess, supply or administer prohibited drugs.

What follows is there are legal issues with respect to pill testing.  Those are that having pill testing facilities is setting up an area where people who attend are flagging to police that they may be committing an offence and that could allow police to stop and search people. If that happened the benefit of pill testing would be lost.

Other identified legal issues are potential liability for pill testers for aiding in the commission of an offence or some liability if a person takes a drug after pill testing.   It would be my view that if the pill testing was conducted in the way described in the earlier articles, there would be no liability for pill testers or event organisers.

In any event if governments wanted pill testing to take place those legal issues could be, and have in the past, been addressed by planning and if necessary, by legislation as has been done, for example, to allow for safe injecting rooms (Drug Misuse and Trafficking Act 1985 (NSW) Part 2A).

Pill testing would seem to be consistent with government approach to other risks in that it would provide information to people to allow them to make more informed choices.  Telling people what choices to make is not an effective way to minimise risk taking behaviour; giving information and allow people to understand risk is the current policy approach.  Proving people information about the product they are thinking of consuming is consistent with that approach and would be familiar to readers of this blog as an appropriate way to encourage people to mitigate their risks.

Conclusion

The law is not, and should not be, a barrier to pill testing. The issue of whether or not pill testing should be adopted is not a legal issue.  If it is to adopted there are legal issues to be addressed but the law is not an insurmountable barrier.

Categories: Researchers

Paramedics reading letters addressed to other treating health professionals

17 January, 2019 - 11:39

Today’s correspondent is concerned about patient privacy.  They say:

Paramedics are often very good at gathering information about their patients… but are we sometimes too good? Patients are often discharged with paperwork that is addressed to their GP, or, letters are written from their GP (or other health care worker) to the attending Doctor in the hospital. These letters are frequently read by paramedics attending patients as there is a wealth of information in them about the patient and their previous medical history… most of the time, more than what the patients can tell us!

I received a concern a few days ago, that paramedics reading these letters are in fact ‘breaching the Privacy act’… I would think not, we are directly involved in the care of the patient and would think that any and all information that we can ascertain would be of benefit towards caring for the patient. Interested to hear your thoughts especially relating to the Privacy Code of Practice etc.

The National Privacy Principles have been adopted in legislation throughout Australia.  I’ll refer to the Privacy Act 1988 (Cth) as my example.  The legislation is aimed at those that collect private information.  Information about a person’s medical history is not only ‘personal information’ (s 6) it is also ‘health information’ (s 6FA) and ‘sensitive information’ (s 6).   An agency that is bound by the Act (whether the Commonwealth Act or equivalent state or territory Act) must deal with personal and health information in accordance with the privacy principles.

First and foremost, where information is collected it should only be used for the purpose for which it was collected.  Paramedics collect personal and health information when they respond to an incident, collect information about the patient, record their observations, diagnosis and treatment.  All of that is personal and/or health information. Paramedics would breach the privacy laws if they used that material in a way that is inconsistent with the privacy principles.  But they collect that information in order to provide health care to the patient and the reasonable patient would expect them to share that information with those involved in their care, so there is no breach to share that information with the triage nurse and treating health care team at the hospital – see Privacy Act 1988 (Cth) ss 16A and 16B and Australian Privacy Principle 6–use or disclosure of personal information. See also Giving feedback to paramedics (April 1, 2017)).

That is not an answer to the question I was asked but gives a relevant context.  The question I was asked has the information going the other way, ie from the treating doctor to the paramedic.  Again the doctor has collected information about the patient, this information will be personal information, health information and sensitive information, all at the same time.   Without working out who exactly is bound by the legislation I will assume that the medical practitioner works for a health service (as defined in s 6FB) and the health service is bound by the Act.

That Act imposes obligations upon the health service to deal with that information in a way that is protects the patient’s privacy.  The obligation, and therefore breach (if there is a breach) lies with the health service/practitioner.  To give an example if I find a person’s medical file has been disposed of by being sold in a second hand filing cabinet then the person that failed to secure the file and dispose of it properly may be in breach of the Privacy Act but I, as the person who bought the filing cabinet and am not in breach by reading the file that I found in my new cabinet (and for the obvious parallel, see Ashlynne McGhee and Michael McKinnon ‘The Cabinet Files’ ABC News (Online) February 10, 2018)).

There are a variety of privacy codes of practice and I’m not sure which one (or which jurisdiction) my correspondent is referring to.  An example is the Privacy Code of Practice for NSW Health (30 June 2000), [3] for example, says:

3. Disclosure of information for the purposes of care and treatment

A health public sector agency is not required to comply with section 19 of the Act [that is the Privacy And Personal Information Protection Act 1988 (NSW)] if, in the case of health related information and in circumstances where the consent of the individual to whom the information relates cannot reasonably be obtained, the information is provided to a health service provider for the purposes of ensuring the continued care of the individual to whom the information relates.

In the situation described however the doctor is not providing information to the paramedic, he or she is providing a letter to travel with the patient for the purposes of giving information to the receiving health service. It is consistent with the privacy principles and this Code of Practice to pass the information between the doctors, but there is no indication that the doctor who wrote the letter intended to provide the information in the letter to the paramedics.

Discussion

The agency bound by the privacy legislation is the agency that collects the information. In context the agency that completes the ‘paperwork that is addressed to their GP, or, letters … from their GP (or other health care worker) to the attending Doctor in the hospital’ is responsible to ensure that information is used, and disclosed, only in accordance with the privacy principles.

That service may, reasonably, believe that handing the letter to the paramedics is acting to protect the patient’s privacy.  They are not giving the letter to an Uber driver.  Just as paramedics would, I imagine, be trusted to deliver with their patient the patient’s personal belongings without having looked through them, so to the sending health service may reasonably think that a letter addressed to the receiving health service will be respected so that giving it to the paramedics is consistent with their duty to manage the patient’s privacy.

Regardless of the Privacy Principles, there will be an exception if the information is necessary to save the person’s life (Privacy Act 1988 (Cth) s 16B).  If the patient’s condition deteriorates en-route and the paramedics need to take action that was unanticipated to save the patient’s life and health, it would be ok to open the sealed envelope to see if there is information there that would explain the patient’s deteriorating condition or affect the treatment provided by paramedics. Short of that a sealed envelope addressed to a health service should not be opened by paramedics.  The information is clearly not intended for them.

(At this point I do note that there are criminal offences involved in opening mail but that only relates to mail that is in the possession of Australia Post: Australian Postal Corporation Act 1989 (Cth) ss 90M and 90N).

If the letters are unsealed or not in an envelope the critical question is ‘did the doctor intend the paramedics to read the letter and is that for a legitimate therapeutic purpose?’  The issue would be why do the paramedics need to know?  If they are doing a patient transfer from one health service to another do the paramedics need that patient information?  If the patient does not require their intervention so they are being transported by ambulance because no other vehicle is appropriate then the information is likely to be irrelevant to the care provided by paramedics or non-emergency patient transport officers.

Even so, I cannot see that the paramedic commits a breach of the Privacy Act if he or she reads the document addressed to the third party.  It is the party that wrote the letter that has the obligation to deal with it in a way to protect the patient’s privacy.  Although I cannot identify a particular offence, I would suggest that paramedics who open letters that are being transported with their patient and that are not addressed to the paramedics could (now that paramedics are registered) be disciplined for inappropriate professional practice. Imagine for example that the patient is being transported back to a nursing home, but the letter addressed the receiving doctor raises concerns about the patient’s social situation and perhaps a long history of abuse by family members.  That history may be relevant to their future care but is irrelevant to the care by paramedics during transport.  It may cause great distress for the patient to realise that this information given to her GP has now been read by people who had no need to know.  It’s really no different to rifling through the patient’s private possessions. Again that could be justified if there’s a clinical reason – eg looking through a handbag to see if there are drugs or medicine that may explain the patient’s current presentation, but not if there is no good reason.

Conclusion

My conclusion really depends on what sort of document we’re talking about.  Printed pages of a discharge summary that are handed to the paramedic along with, but separate to, the patient’s personal belongings may be considered as information given to the paramedics to inform the patient’s care en-route and reading that would be appropriate if it is relevant to their ongoing care.

A letter addressed to a particular doctor and in a sealed envelope will contain sensitive information and the sender has gone to some lengths to protect the patient’s privacy. Opening the letter by the paramedic could well be a breach of professional standards and an invasion of the patient’s privacy.  Such an action would be hard if not impossible to justify in the absence of an unexpected life-threatening emergency.

There are other examples that sit along that spectrum.

The question that everyone should ask is ‘do the paramedics need to know?’  If yes they should be told; if no then documents should be sealed.  Paramedics should also ask the same question and if the answer is ‘we don’t need to know what’s in this document’ then they should not read it.  They certainly shouldn’t open sealed envelopes addressed to someone else unless the information is needed as a matter of urgency to inform clinical decision making.

POSTSCRIPT

In response to this post a commentator wrote (via Facebook)

I disagree here. Paramedics need to access available information on patient health care in order to provide safe treatment, regardless of life threat, we need to know allergies and sometimes the patient cannot tell them.

This is akin to saying a doctor cannot access past medical records because those records we not intended at the time of writing to be accessed.

A sealed envelope with a health record inside, is the same as a password protected medical record. The treating team should be protected by law to access necessary information to provide timely and more importantly safe care to the patient before them.

They continued:

Would we restrict nurses to strictly needs to know health information? Nurses really don’t make decisions about patient care, they operate under instructions of a doctor. Yet, nurses have full access to the patient’s health record. I would argue, anyone involved in the direct provision of healthcare to a patient has a right to “the password” to their medical record.

The treatment given en-route by paramedics is not under direct direction of a doctor, and if the patient is being transported in an emergency ambulance, we can assume the patient is sick and may require unexpected medical care while in transit.

A lot of the time the GP doesn’t even bother coming out of their rooms to hand over to paramedics, and thus, the only way to find out pertinent patient information is by reading the doctors letter, which is most often addressed to the doctor at the receiving hospital. Once the letter is received it gets scanned into the patients digital file and is there for any member of the team to read.

How can paramedics be treated any differently to the rest of the in-patient team?

I respond here as I thought these comments raised good points and I wanted to address them for the benefit of everyone who accesses this blog, not just the Facebook followers.

I actually don’t think we fundamentally disagree.  The problem with writing a blog or a comment on FaceBook is that there is neither the space nor time to explore everything in the sort of detail that might use if say, writing a journal article.    Where perhaps coming at this from different ends of the spectrum which will no doubt reflect our experience.

At one end of the spectrum is the patient who is critically ill, unconscious, connected to life supporting technology and for whom the paramedics will be actively involved in their transfer from wherever they have been to where ever they are going.  In that case I accept the paramedics need access to as much information as possible as it will be relevant to the care they provide. One would hope that a prudent and professional medical practitioner would recognise that and would give the appropriate information to the paramedics but perhaps it is accidentally sealed.

On the other end of the spectrum (and here I draw on my own experience in Ambulance – which I admit is a very long time ago –  when I, as a primary care ambulance officer, spent most of my work time doing transfers from the nursing home to hospital ‘for treatment’ and we didn’t do much beside drive the car).  Today much of the work that I used to do would be done by non-emergency patient transport officers – a service that did not exist ‘in my day’.  In that context the patient’s medical history was pretty irrelevant as there was not much we were going to do for anyone.  I assume at some times, in some ambulance services, in some parts of Australia, those sort of transfers still occur.

In between those two extremes, patients will have different care needs and paramedics will have different levels of intervention.    What they need to know will vary.

As noted there is an exception to the privacy rules when private information can be shared where necessary to save a life.  That deals, in my view, with the situation where ‘the patient is sick and may require unexpected medical care while in transit’.  If the paramedic is expecting a routine transfer and the patient’s condition deteriorates then fine open the letter to see if there is something of relevance.

In other cases, however, where the patient transfer is proceeding as expected (however that is expected) if there is a sealed letter addressed to another health professional – particularly if it’s addressed by name and not position, then one might infer that it is intended to be read by them and them alone. It may contain information that is relevant to the care they may provide but is not relevant to the task of the paramedics.  There has to be at least an inference that the author is trying to secure that letter behind the metaphorical password.  If he or she wanted the paramedics to have that information they would, we hope, give it to them. There may still be doctors who don’t appreciate what paramedics do and my not realise that information is important to paramedics.

As for nurses it is not necessarily the case that ‘nurses have full access to the patient’s health record’ and that’s because there is no single health record.  This is an issue the MyHealth Record is, as I understand it, meant to adjust but as a patient controlled record it too may not be complete.  For example a nurse may have access to a health service’s records but those records won’t contain information that is in the GPs record.  And just because a nurse can access the health institution’s records they should only do so when clinically necessary.  A nurse providing care in a particular area may have no legitimate need to look at records of the patient’s other treatment just because it happened in the same institution.

I started by saying “I actually don’t think we fundamentally disagree”.   I think what we are saying is that access to the documents has to be appropriate when its clinically necessary and that will require a judgment based on the patient’s condition and the interventions called for, and for the security attached to the document under discussion.

If there’s a discharge summary that is printed out and handed to the paramedic then there would seem no problem. If there is a letter in a sealed envelope, addressed to another health professional by name, then there has to be at least a question as whether the author of the letter is trying to secure it.  In that case the decision to open that letter would require clearer clinical need.  Between them is the document in an unsealed envelope (where the inference may be that this is needed to protect the document, not to secure it behind the metaphorical password) and the sealed envelope addressed to another health service or another professional by job rather than name (ie a letter addressed to ‘the Admitting Doctor’ may be different than one addressed to ‘Dr …’).

The two issues are what are the author’s intention or expectations and what is the clinical need.  The answer to ‘do I open this?’ is neither ‘yes, always’ or ‘no, never’.  I think that is what I said in the original post but my correspondent’s contribution has allowed further exploration of the issues.  Thank you.

Categories: Researchers

The mentally ill and event first aid

9 January, 2019 - 23:46

An issue has arisen on a closed group of the NSW chapter of a national volunteer event health service provider.  The question asked about the provision of ‘paperwork for sectioning a patient under the MHA, eg for our Doctors and Paramedics to utilise?’  The discussion then expanded to a discussion on the power and authority of those doctors and paramedics to take action under the Mental Health Act 2007 (NSW).  I have been given permission to answer the question here.

The right of the mentally ill to refuse treatment

People who are mentally ill have the same rights as anyone else. Most importantly they have the right to consent, or to refuse consent, to treatment including treatment for their mental illness – see Victorian decision on refusing medical treatment – reviewing the principles (November 24, 2018).  If the person does not want to be treated by first aiders because he or she thinks they are part of the authority that is out to kill them or because some other force is going to look after them, then that is their right.

The test for capacity is a functional test, that is the question is ‘whether, at the time the decision had to be made, the person could understand its nature and effects’ (PBU & NJE v Mental Health Tribunal [2018] VSC 564 [154]).  It is not an outcome test that is capacity does not depend on whether the person’s decision is a good or wise decision.  In that earlier post I quoted the decision of Bell J in PBU & NJE v Mental Health Tribunal at length.  It is worth repeating the quote here:

The rejection of the ‘outcome’ approach in favour of the ‘functional’ approach when the capacity standard was formulated is associated with the principle that a person is not to be treated as lacking capacity by reason of making a decision that could be considered to be objectively unwise (s 1(4) of the Mental Capacity Act [(UK)}and ss 11(1)(d) and 68(2)(d) of the Mental Health Act[(Vic)]). This principle recognises the dignity of risk. As Quinn J in Re Koch said:

It is mental capacity and not wisdom that is the subject of the [capacity legislation]. The right knowingly to be foolish is not unimportant; the right to voluntarily assume risks is to be respected. The State has no business meddling with either. The dignity of the individual is at stake.

Thus, by reason of the primacy of individual self-determination, the decision of a person (including someone with mental disability) able to make a decision must be respected, however unreasonable it may seem to others. This principle informs the legal relationship between doctor and patient, as explained by Lord Templeman in Sidaway v Board of Governors of Bethlem Royal Hospital and the Maudsley Hospital:

Where the patient’s health and future are at stake, the patient must make the final decision. The patient is free to decide whether or not to submit to treatment recommended by the doctor… if the doctor making a balanced judgment advises the patient to submit to the operation, the patient is entitled to reject the advice for reasons which are rational, or irrational, or for no reason. The duty of the doctor in these circumstances, subject to his overriding duty to have regard to the best interests of the patient, is to provide the patient with information which will enable the patient to make a balanced judgment if the patient chooses to make a balanced judgment.

In Malette, Robins, Catzman and Carthy JJA explained the relationship in the same way:

The right of self-determination which underlies the doctrine of informed consent also obviously encompasses the right to refuse medical treatment. A competent adult is generally entitled to reject a specific treatment or all treatment, or to select an alternate form of treatment, even if the decision may entail risks as serious as death and may appear mistaken in the eyes of the medical profession or of the community. Regardless of the doctor’s opinion, it is the patient who has the final say on whether to undergo the treatment … for this freedom to be meaningful, people must have the right to make choices that accord with their own values regardless of how unwise or foolish those choices may appear to others …

When it comes to assessing whether a person (whether mentally disabled or not) has the capacity to consent to or refuse medical treatment, the same principle applies. As Lord Donaldson MR (Butler-Sloss LJ agreeing) stated in ReT:

[The] right of choice is not limited to decisions which others might regard as sensible. It exists notwithstanding that the reasons for making the choice are rational, irrational, unknown or even non-existent …

Butler-Sloss LJ added:

A decision to refuse medical treatment by a patient capable of making the decision does not have to be sensible, rational or well-considered.

This approach has been followed by courts of high authority in England and has been approved in superior courts in Australia…

Despite the irrelevance of the outcome of the decision to the assessment of the person’s capacity, the tendency to make that assessment by reference to the person’s (so-called objectively reasonable) best interests is strong, so much so that the courts have frequently stressed the need to guard against it. York City Council was a case in which a wife with learning difficulties wanted to resume cohabitation with her sex-offending husband upon his release from prison. Refusing to intervene, McFarlane LJ (Richards LJ agreeing) held:

There may be many women who are seen to be in relationships with men regarded by professionals as predatory sexual offenders. The Court of Protection does not have jurisdiction to act to ‘protect’ these women if they do not lack the mental capacity to decide whether or not to be, or continue to be, in such a relationship. The individual’s decision may be said to be ‘against the better judgment’ of the woman concerned, but the point is that, unless they lack mental capacity to make that judgment, it is against their better judgment. It is a judgment that they are entitled to make.

In Heart of England NHS Foundation Trust, the issue was whether a person with a mental disability had the capacity to refuse to consent to an amputation of the leg below the knee. Finding that the person had that capacity despite his mental illness, Peter Jackson J stated that best interests considerations must not be allowed to dominate capacity assessments:

The temptation to base a judgment of a person’s capacity upon whether they seem to have made a good or bad decision, and in particular upon whether they have accepted or rejected medical advice, is absolutely to be avoided. That would be to put the cart before the horse or, expressed another way, to allow the tail of welfare to wag the dog of capacity. Any tendency in this direction risks infringing the rights of that group of persons who, though vulnerable, are capable of making their own decisions. Many who suffer from mental illness are well able to make decisions about their medical treatment, and it is important not to make unjustified assumptions to the contrary.

This statement was cited with approval and applied by MacDonald J in King’s College Hospital NHS Foundation Trust v C & V in a case involving a decision by a highly eccentric individual to refuse life-saving medical treatment. As the Secretary submitted in the present case, the following statement by MacDonald J in that case applies equally to the interpretation and application of s 68(1)(c) of our Mental Capacity Act:

a person cannot be considered to be unable to use and weigh information simply on the basis that he or she has applied his or her own values or outlook to [the relevant] information in making the decision in question and chosen to attach no weight to that information in the decision making process.

The judgment of MacDonald J, and those of Peter Jackson J in Heart of England NHS Foundation Trust and Wye Valley NHS Trust v B and the plurality in Starson v Swayze, all concerned with highly eccentric individuals, are notable for applying the capacity test in a way that is criteria-focused, evidence-based, patient-centred and non-judgmental.

Compulsory treatment

Society does have to balance personal autonomy with the need to ensure treatment where that is necessary to ensure the safety of the person and or others.  Given the laws desire to protect personal autonomy and choice, there are very strict laws that allow compulsory treatment of the mentally ill.  Where those laws apply treatment can be given to those that cannot consent as well as those that have capacity, but refuse consent.  Because the laws restrict freedom and autonomy they are very strictly interpreted. The relevant provisions in this context are the Mental Health Act 2007 (NSW) ss 18, 19, 20 and 81.  Sections 18-20 appear under the chapter heading ‘Involuntary Detention and Treatment in Mental Health Facilities’.  Section 18 says, relevantly,

A person may be detained in a declared mental health facility in the following circumstances:

(a) on a mental health certificate given by a medical practitioner or accredited person (see section 19),

(b) after being brought to the facility by an ambulance officer (see section 20)…

Section 19 says:

(1) A person may be taken to and detained in a declared mental health facility on the basis of a certificate about the person’s condition issued by a medical practitioner or accredited person. The certificate is to be in the form set out in Part 1 of Schedule 1.

(2) A mental health certificate may be given about a person only if the medical practitioner or accredited person:

(a) has personally examined or observed the person’s condition immediately before or shortly before completing the certificate, and

(b) is of the opinion that the person is a mentally ill person or a mentally disordered person, and

(c) is satisfied that no other appropriate means for dealing with the person is reasonably available, and that involuntary admission and detention are necessary, and

(d) is not a designated carer, the principal care provider or a near relative of the person.

Section 20 says

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

Finally, s 81 says:

(1) The persons listed below may take to or from a mental health facility or another health facility any person who is authorised by this Act to be taken, or transferred, to or from the facility:

(a) a member of staff of the NSW Health Service,

(b) an ambulance officer,

(c) a police officer,

(d) a person prescribed by the regulations.

(2) A person authorised by this Act to take a person to or from a mental health facility or other health facility may:

(a) use reasonable force in exercising functions under this section or any other provision of this Act applying this section, and

(b) restrain the person in any way that is reasonably necessary in the circumstances.

(3) A person may be sedated, by a person authorised by law to administer the sedative, for the purpose of being taken to or from a mental health facility or other health facility under this Act if it is necessary to do so to enable the person to be taken safely to or from the facility.

Discussion

The initial question was, in effect, ‘do we have the paperwork for a doctor or paramedic to sign under ss 19 or 20?’  I cannot answer that question, I have no idea what paperwork this service has, so I’ll look at the question of whether the doctors and/or paramedics that deploy with this service can actually exercise the powers under those sections.

Medical practitioners

Medical practitioners are registered with the Medical Board under the Health Practitioner Regulation National law.  There are no limitations in s 19 so a medical practitioner can exercise his or her judgment in any place.  If a medical practitioner is deployed as part of the event health services team and he or she examines or observes a person’s condition, forms the opinion that the person ‘is a mentally ill person or a mentally disordered person’ and that involuntary admission and detention is necessary and there are ‘no other appropriate means for dealing with the person’ then that doctor can complete the form provided for in the Schedule to the Act.

The completion of that form means the person can be detained and taken to a declared mental health facility by those people listed in s 81(1) ie a member of staff of the NSW Health Service, an ambulance officer, a police officer or any other ‘person who provides a transport service approved by the Director-General’ for the purpose of the Mental Health Act (Mental Health Regulation 2013 (NSW) r 49).  If the doctor thinks that police involvement is required, because of ‘serious concerns relating to the safety of the person or other persons’ (s 19(3)) then that must be endorsed on the certificate.

The purpose here is reasonably clear, it allows a doctor to sign the certificate and that certificate allows others to transport the patient to a mental health facility. The doctor does not need to travel with the patient.  Once at the mental health facility the doctor’s certificate is sufficient authority for that facility to detain the patient until he or she can be examined by an authorised medical officer at that facility.

From the point of view of the event first aiders that means a doctor that is part of the team may complete a schedule 1 and that would authorise the ambulance or police to transport the person but it doesn’t allow that doctor to give compulsory medical treatment.  The ambulance officers who attend may be permitted to restrain and sedate the patient if the various requirements in s 81 are met.

Paramedics

Paramedics too, are registered under the Health Practitioner Regulation National law thought their registration is managed by the Paramedicine Board.  However where the Mental Health Act refers to ‘medical practitioners’ it does not refer to paramedics, it refers to ambulance officers – that is ‘a member of staff of the NSW Health Service who is authorised by the Secretary to exercise functions of an ambulance officer under this Act’ (s 4), that is an employee of the Ambulance Service of NSW.

Paramedics who are not employees of the Ambulance Service of NSW have no authority to act under s 20.  Paramedics who are employees of the Ambulance Service of NSW but are not then at work and are working or volunteering with an event health service provider would not have authority under s 20 unless the authorisation by the secretary extended to their off-duty time, and I doubt that it does.  Even where there is an authority under s 20, it is an authority to ‘take the person to a declared mental health facility’. Where the off-duty ambulance officer is volunteering or working with an event health service provider they are not intending to transport the patient.  Section 20 is not some general provision to allow treatment, it is an authority to transport.

The authority to restrain and even sedate the person (which is part of the discussion that prompted this post) is found in s 81 but that again only applies when the person is being transported.   It follows that the off-duty ambulance officers have no relevant authority or power under s 20 or 81 to do anything.

The common (and some other) law

The reality is that the Mental Health Act will have limited application for event health services.  Remember that a person who is intoxicated or suffered a head or some other injury is not mentally ill, they are physically ill and this Act has no application even if they are manifesting symptoms of a mental disorientation. They need to go to hospital, not a mental health facility.

Where a person is mentally ill and consents to treatment then that can be provided. In a first aid context there is probably little treatment that can be provided.

Where the mental illness is such that the person is deprived of the capacity to consent, they are unable to understand whatever someone is proposing, then the doctrine of necessity would justify treatment that was reasonably necessary and in the patient’s best interests (In Re F [1990] 2 AC 1; see The doctrine of necessity – Explained (January 31, 2017).

Where the person is mentally ill but can still understand the nature of proposed treatment then he or she is entitled to refuse the treatment.  The fact that this is not in his or her best interests is irrelevant.  Treatment (and let’s be frank here, what we’re talking about is restraint and possible sedation) cannot be delivered, even if it would be in the person’s best interests.  The fact that a person is at risk to themselves would not be sufficient justification to restrain them (Stuart v Kirkland-Veenstra [2009] HCA 15). There is authority to use reasonable force to restrain a person to prevent a suicide (Crimes Act 1900 (NSW) s 574B) – but people can harm themselves without intending to commit suicide.  Further there is no common law duty to protect people from harm that they may cause themselves from their own actions even if those actions are triggered by a mental illness where there is no power to restrain them (Stuart v Kirkland-Veenstra [2009] HCA 15).

Where it is perceived that the person is posing a threat to others then there is authority to use reasonable force to restrain them on the basis of self-defence (which extends to the defence of third parties – Crimes Act 1900 (NSW) s 418).

Conclusion

What follows from the above is:

  1. Medical practitioners who work for or volunteer with the event health service provider can sign a certificate under s 19 of the Mental Health Act 2007 (NSW) if the requirements of that section are met. That certificate would authorise an ambulance officer or, if so endorse, a police officer to detain the person and transport them to a mental health facility.
  2. An off-duty ambulance officer employed by the Ambulance Service of NSW has no authority to act under ss 20 and 81.
  3. A registered paramedic who is not employed by the Ambulance Service of NSW has no authority to act under ss 20 and 81.
  4. In the absence of authority under the Mental Health Act the general law applies. If the person is competent they can refuse treatment and go on their way.  (And being mentally ill is not the same as being incompetent, the question is whether the person understands what is being discussed not whether they make a sensible decision). If you ask the person to wait because you think they need help and you’re going to get a doctor to talk to them and they refuse to wait as they think you are going to harm them, they are still competent and you cannot restrain them.
  5. If the person is not competent, that is they are unable to understand the nature of the suggested treatment, weigh up the consequences of that treatment and communicate his or her decision (In Re C (Adult: Refusal of Treatment) [1994] 1 WLR 290; Gillick v West Norfolk and Wisbech Area Health Authority [1986] 1 AC 112) then the principle of necessity would apply and would justify treatment that is clinically indicated and in the patient’s best interests.
  6. A person may be restrained to prevent a suicide, but not all self-harm.
  7. A person may be restrained where it is reasonable and necessary to do so in self-defence or the defence of another.
  8. Where a person suffers a physical injury but refuses treatment, even if that decision is made wholly or in part because they are mentally ill, then that remains their right and you cannot compel them to accept treatment nor restrain them for that purpose.  If the patient is not competent, then the principles of necessity apply.
Suggestion

The following suggestion may be going beyond legal commentary but I would suggest that where event first aiders observe a person who they believe to be mentally ill such that they require compulsory treatment for their mental illness then one would be very slow to seek to restrain or detain them.  Given the first rule of DRSABCD is ‘danger’ it would be better to try and remove possible sources of danger and then call for ambulance or police assistance.

Where a patient is refusing life saving care and the fear is that their decision is being made because of their mental illness, a call should be made to triple zero for ambulance assistance or to a mental health care team if one is available.

POSTSCRIPT

After writing this post a commentator wrote:

I do feel though that Sect 15 of the MHA – The mentally disordered person, is relevant but often forgotten in these discussions. One does not have to be mentally ill nor mental illness proven in order to be managed in accordance with the act, an observation needs to be made that “…the person’s behaviour for the time being is so irrational as to justify a conclusion on reasonable grounds that temporary care, treatment or control of the person is necessary:

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

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

I guess with respect to S15 it comes down to a definition/determination of serious physical harm.

That is a good point, so I’ll add some discussion on s 15.

Section 15 appears in Chapter 3 (Involuntary Admission and Treatment in and Outside Facilities), Part 1 (Requirements for Involuntary Admission, Detention and Treatment).  It is a definition section that is it defines what is meant by the term ‘mentally disordered person’. It has to be read in context with s 14 that defines ‘mentally ill person’ and s 16 that provides that certain behaviours or beliefs do not establish mental illness.   As my correspondent noted, s 15 says:

A person (whether or not the person is suffering from mental illness) is a mentally disordered person if the person’s behaviour for the time being is so irrational as to justify a conclusion on reasonable grounds that temporary care, treatment or control of the person is necessary:

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

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

Both sections 19 and 20 (discussed above) are ‘triggered’ if the person is either mentally ill or mentally disordered.  Reference to s 15 does not change my conclusions about who may act under the Mental Health Act in the circumstances described, ie medical practitioners can act under s 19, off duty NSW Ambulance Officers and paramedics who are not employed by NSW Ambulance cannot act under s 20.

It follows that if a person is observed by the event health services team, including registered health professionals, and they form the opinion that the person is mentally ill or mentally disordered their options are still as described above. If the person is competent they can refuse treatment; if not then the principles of necessity apply.

My correspondent said “I guess with respect to S15 it comes down to a definition/determination of serious physical harm”.  I suggest it also comes down to an assessment of ‘irrational’.  The Act still does not impose an ‘outcome’ test that is just because a person is making a bad decision does not mean it’s an irrational decision.  A person who believes God is directing them to refuse treatment is not acting irrationally if they act consistently with those beliefs; equally a person who doesn’t want treatment because they think the health service providers are actually out to harm them.  An ambulance officer may form the view that the criteria of s 15 are met in all the circumstances and the section is designed to be protective in that its designed to ensure that people who would benefit from care get it.  Having said that the trend in mental health law is to use restraint and compulsory treatment in very limited and very controlled circumstances so finding someone’s actions are ‘irrational’ just because they don’t make sense to you is fraught with danger.

Section 15 is a definition section and that definition has be applied when reading ss 19 and 20 but at the end of the day it doesn’t change my conclusions.

 

 

 

 

 

 

 

Categories: Researchers