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:

• Alison Ritter ‘Six reasons Australia should pilot ‘pill testing’ party drugs’ Drug Policy Australia (Online) (December 20, 2018);
• Olivia Willis ‘Six claims about pill testing — and whether or not they’re true’ ABC Health (Online) (January 15, 2019);
• Yan Zhuang ‘What is pill testing?’ Sydney Morning Herald (online) (January 2, 2019);
• Natalie Wolfe ‘Parents’ plea after daughter’s tragic drug death at FOMO festival in Sydney’ com.au (January 16, 2019);
• ‘Why pill testing has never been trialled in Australia’ (by Deakin University) (undated); and
• Andrew Scholefield ‘Will Pill Testing Prevent Drug Deaths?’ Encounter Youth (undated).

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 festival’ triple 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 festival’ triple 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.

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.

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.

 

 

 

 

 

 

 

Today’s correspondent is part of a private emergency response organisation in Western Australia.  Drawing on extensive experience as a WA firefighter my correspondent notes:

In the Govt. fire service of WA (DFES) we had a handwritten daily log book, which recorded all vehicle/staff movements, all visitors to the station, and most importantly, all incidents including times. Locations actions results etc. I was always told it was handwritten because if it was required to be tabled in a coroners court, that would be the only legal way of presenting a credible document given that handwriting can be confirmed. An electronic logbook was not legal as it could be “changed”.  Is this correct or can I now implement an electronic version alone (possibly in pdf format?) for my Private sector team? They currently use a handwritten version.

That view is not correct in the 21st century.  Modern computers and systems can have data control and revision history so every change can be identified.  In any event, a coroner is not bound by the rules of evidence so even if it was true it would not be true in the coroners court – see Coroners Act 1996 (WA) s 41 – “A  coroner holding an inquest is not bound by the rules of evidence and may be informed and conduct an inquest in any manner the coroner reasonably thinks fit”.  The coroner could accept evidence written on the back of an envelope if there was reason to think it was accurate.

If we assume the rules of evidence do apply then the business records rule. That rule says (Evidence Act 1906 (WA) s 79C):

…  in any proceedings where direct oral evidence of a fact or opinion would be admissible, any statement in a document and tending to establish the fact or opinion shall, on production of the document, be admissible as evidence of that fact or opinion if —

(a) the statement is, or directly or indirectly reproduces, or is derived from, a business record; and

(b) the court is satisfied that the business record is a genuine business record.

What that means, in context, is if a firefighter could give oral evidence of a fact (eg “we left the fire station at 0915”) then a document recording that fact is also admissible in evidence provided it is a business record, that is ‘a book of account or other document prepared or used in the ordinary course of a business for the purpose of recording any matter relating to the business’.  If there is a log book and its purpose is to record the details of incidents then it is a business record (Business ‘means any business, occupation, trade or calling and includes the business of any governmental body’ (s 79B) so the fire brigade is a business and its records are business records).  The reason those records are admissible is that no-one knows everything about a business, a business makes records for its own purposes and they serve the business no purpose if they are not accurate, so the inference is (in the absence of evidence to the contrary) that what they record is correct and they are admissible to prove that what they say happened did in fact happen.

That’s all well and good and applies to the handwritten log book but what of the electronic record?  Many business records are electronic, consider the counter on a photocopier machine, or time stamps on pager messages etc.  They all represent data stored in a myriad of ways and the data from them is admissible to prove eg that the photocopier made that number of copies or that the pager message was sent at that time, even though they are not a handwritten record.

A document for the purposes of the rule (s 79B) means:

… any record of information and includes, in addition to a document in writing —

(a) any book, map, plan, graph or drawing; and

(b) any photograph; and

(c) any disc, tape, sound track or other device in which sounds or other data (not being visual images) are embodied so as to be capable (with or without the aid of some other device) of being reproduced therefrom; and

(d) any film, negative, disc, tape or other device in which one or more visual images are embodied so as to be capable (with or without the aid of some other device) of being reproduced therefrom;

Where a person types onto a computer program (eg a word processor) they create a document that is stored on a device (I don’t suppose anyone uses ‘disc’ or ‘tape’ anymore) and can be reproduced by hitting ‘print’.

The conclusion is that in today’s world you have to be able to have electronic record keeping whether it’s automatic (such as the time stamp on a pager) or where records are completed and stored online and then printed or otherwise made available for a court if required.  What is required is robust security to ensure that the system is secure and that if there are changes made to the documents that can be identified.  Note today that paramedic case sheets are being recorded electronically, medical and legal records are stored electronically etc.  Even a stand-alone PC with a word processor would provide some of ability to verify if and when documents have been edited but a business would not doubt want something more robust than that.

Conclusion

It is not the case, in 2019, that only handwritten records are considered accurate.  If that were the rule modern trade and commerce as well as all aspects of government including health and security would grind to a halt.  An electronic log book would be admissible provided that it was the way the business normally went about recording the sort of details recorded.  Depending on the nature of the business, a business that wants to satisfy a court that any recored ‘is a genuine business record’ would look to business record keeping systems that could identify how and when records are created and/or altered.

We are aware of the concept of ‘ramping’ ambulances where ambulances are held at hospital providing ongoing care to patients whilst the hospital staff try to cope with the workload and find space to admit the patient into the hospital – see

• More on treating patients during ambulance ramping in WA (January 2, 2019);
• Treating patients whilst ambulances are ramped (December 28, 2018);
• Victorian Paramedics treating patients inside the A+E(June 12, 2015); and
• Treatment in a Victorian hospital carpark(August 19, 2015).

Today’s question raises similar issues but this time with respect to ‘ramping’ of police whilst delivering a mentally disordered person to a relevant health facility.

The relevant law is the Public Health Act 2005 (Qld) Chapter 4A which provides (at s 157B) for the detention and transport of persons who are

(a) … at immediate risk of serious harm; and

(b) the risk appears to be the result of a major disturbance in the person’s mental capacity, whether caused by illness, disability, injury, intoxication or another reason; and

(c) the person appears to require urgent examination, or treatment and care, for the disturbance.

Where a person is transported to ‘a treatment or care place that is a public sector health service facility’ the ambulance or police officer must complete an ‘emergency examination authority’ and hand that to a relevant employ of the facility (s 157D).  On the basis of that authority, the person ‘may be detained in a treatment or care place that is a public sector health service facility for a period (the “examination period”) of not more than 6 hours’ (s 157E).  Queensland Health’s Public Health Act 2005 Fact Sheet: Emergency Examination Authorities answers the question ‘Why are the provisions located in the Public Health Act 2005?’  It says:

A disturbance in a person’s mental capacity may be caused by illness, disability, injury, intoxication or another reason. Including the provisions in the Public Health Act 2005 aims to ensure that the Mental Health Act 2016 captures only those persons that are within its intended scope and that appropriate treatment and care is provided after a person is examined.

In essences, the Public Health Act applies before a person is examined by a mental health professional, the Mental Health Act 2016 (Qld) applies after that examination and where a person has been assessed as mentally ill.

Emergency Examination Authorities issued by Queensland Ambulance were the subject of an earlier post – see Involuntary treatment and security clearances (November 9, 2017).

We can now turn today’s question regarding:

… liability where resources not provided for patient guarding at hospital. This where QAS do NOT assist and QPS take carriage of the job for whatever reason (risk, resources whatever). Police attend a job and believe a mental disturbance in a patient and if not taken for mental health assessment there is an imminent risk of physical harm.

They can then be detained for what seems like an indeterminate amount of time and taken to a mental health professional (hospital).  EEA documents are furnished. It’s often explained to police by hospital staff that when the EEA is signed the 4-hour detention assessment period begins.

I imagine at this point patient is the hospitals problem to guard. However, for what seems like procedural reasons this doesn’t occur. If the patient has health issues, for example they are under the influence of amphetamines or have cuts they must be triaged and seen at Emergency department before being handed over to Mental Health ward. If there is a ‘ramping’ situation there may be a long line of patients.

Security (and staff obviously possibly due to risk) refuse to take ownership of these patients until they are triaged despite the EEA having been signed. This results in usually two police guarding a patient for sometimes 2 to 3 hours in a hall at the hospital. This is not desirable as police frankly have better things to do. Hospitals have security staff and a memorandum of understanding exists between QPS and QAS at least indicating QAS get a quantity of funding for mental health response.

QPS immediate, on the road management indicate that there is nothing that can be done as there is a liability if the patient injures staff. I’m of the feeling that because the document has been signed the 4-hour EEA period has started for being seen by a mental health professional. I feel that the police custody has been handed over to hospital staff even if they aren’t taking the patient on board because they feel they don’t have enough security staff (usually only 2-4 security staff in a large hospital where this issue is occurring). Hospital staff say ‘this patient hasn’t been triaged yet so hasn’t been accepted by staff’ that seems inconsistent with police and staff signing the EEA.

Can you tell me where police ownership ends here? Is it where the EEA is signed or is do police really have to hang around for 3 hours until the patient is triaged and accepted at ED?

Let me first quibble with some language. No-one ‘owns’ the patient and no-one ‘owns’ the problem.  Everyone has obligations and the patient remains a citizen with rights including the right to be treated with dignity and to be involved in his or her treatment to the greatest extent possible given their current state of competence.

Second I note that s 157E provides for detention for not more than 6 hours, not 4 hours.

Memoranda of Understanding

There is a memorandum of understanding between Queensland Police and Queensland Health.  The Memorandum of Understanding Between The State of Queensland acting through Queensland Health and The State of Queensland acting through the Queensland Police Service: Mental Health Collaboration.  Is dated 15 June 2017. It says nothing on the subject of the role of police at hospital rather it deals with sharing information between police and health in order to better care for the mentally ill.

The Queensland Police Operational Procedures Manual (online edition), in chapter 6 refers to an MOU between police and ambulance.  It says (at [6.6.1]):

The Service has entered into a Memorandum of Understanding (MOU) with the Queensland Ambulance Service (QAS) that broadly identifies each agency’s responsibilities with respect to working collaboratively towards the prevention and safe resolution of mental health incidents.

The MOU requires the Service and the QAS to work in full cooperation to promote a coordinated system of response to ensure effective and efficient delivery of services to meet the needs of people with a mental disorder. The MOU acknowledges and agrees that when dealing with persons with an actual or suspected mental disorder and where there is a risk to safety that:

(i) police have the responsibility to protect the safety of all parties; and

(ii) ambulance personnel have the responsibility of addressing the physical needs of the person, including transportation to a medical facility.

POLICY

Unless exceptional circumstances exist, officers responding to a mental health incident are to:

(i) obtain the assistance of the QAS to:

(a) ensure the best possible medical response to the situation; and

(b) provide transportation for a person who is deemed in need of assessment at an authorised mental health service (AMHS);

(ii) provide all possible assistance to the QAS personnel in such situations (this may include assisting with transportation where QAS personnel attend the scene and request such assistance); and

(iii) provide sufficient information to QAS personnel to enable them to prevent or lessen a threat to the safety and health of any person involved in the mental health incident (e.g. providing the name, address, date of birth or any known mental health history of the person; see also s. 5.6.14: ‘Requests for information from other government departments, agencies or instrumentalities’ of the Management Support Manual).

Likewise, the role of the QAS is to also provide sufficient information to Service members to enable them to prevent or lessen a threat to the safety and health of any person involved in the mental health incident.

Officers in charge of regions should ensure local arrangements are developed to support the MOU entered into between the Service and the QAS.

My correspondent’s questions however, assumes that QAS are not involved so this MOU will have no application.  The Manual does talk about Emergency Examination Authorities at [6.6.2].  It says (relevantly):

On arrival at a public sector health service facility with a person detained for an EEA, the officer is to immediately:

(i) complete an ‘Emergency Examination Authority’ form;

(ii) give it to a health service employee. The person may be detained in the public sector health service facility while the order is being made (see s. 157D(3): ‘Giving emergency examination authority’ of the PHA); and

(iii) remain with the person for a reasonable time if requested by a health service employee.

The health service assumes responsibility for the person’s detention once the authority is provided to staff by an officer. An officer may depart from the facility as soon as this occurs unless there are circumstances where there is concern about the person’s management (for example, a person who is considered likely to abscond).

Officers should only be requested to remain where the individual circumstances of a case dictate that is necessary and reasonable. It should not occur routinely. When officers are requested to remain, they should ensure that health service staff are promptly making alternative arrangements (for example, attendance of hospital security or moving the person to a more secure setting within the facility).

Discussion

Queensland Police, Queensland Ambulance and Queensland Health are all parts of the Queensland Government and represent resources that are allocated by government to deal with issues that the government choses or has to deal with.  If the government wants or requires police to take part in the care and control of people who are a risk to themselves or to others then that is a choice the government makes.  What follows from that is the care of the mentally disordered person is a government concern and part of how they deal with that is through cooperation between the agencies.  It is not the case that police can say ‘no longer my problem’ – they are part of the solution along with the hospital and have to have regard to other demands on the hospital’s resources.

Section 157E(1) says, in full:

A person subject to an emergency examination authority may be detained in a treatment or care place that is a public sector health service facility for a period (the “examination period”) of not more than 6 hours starting when the authority is given to the health service employee under section 157D (4) .

That section says they may be detained, not that they are detained from the moment that the document is handed to staff of the health facility so one cannot infer that the patient ceases to be a police concern as soon as they hand the EEA document to the hospital staff.  It may simply be that the hospital cannot cope at that time and handing over an EEA document to a busy emergency department is not going to create new resources to deal with the patient.  That is reflected in the Police Operations Manual that says police are to ‘remain with the person for a reasonable time if requested by a health service employee’.  To see that another way, if it is the ‘hospitals problem to guard’ one way they can do that is by asking the police to assist (see also s 157N and reference to the use of force by a person ‘lawfully helping’ the ‘person in charge of the public sector health service facility’).

The critical issue is what is a ‘reasonable time’. That use of the word ‘reasonable’ covers a myriad if situations.  If the perception is that the patient is compliant and cooperative and no longer a risk perhaps police are not required.  If he or she is violent and needs active restraint then police will need to wait but, hopefully, that will also bring the person higher up on the triage priority.

As for liability or duty, the answer has to be the same as for ambulance ramping. Where the police have attended and given the EEA then the patient is at the hospital for treatment and the hospital has a duty of care toward that patient (Darnley v Croydon Health Services NHS Trust [2018] UKSC 50; Barnett v Chelsea and Kensington Hospital Management Committee [1969] 1 QB 428).  That duty is to act ‘reasonably’ but not necessarily immediately and not in priority to other patients.  In considering what is reasonable the hospital has to consider what staff it has that can be used to secure the patient (if that is required) and if they don’t have staff the availability of other resources – eg police.   What that means is that handing over an EEA that is then counter-signed by hospital staff means that the ‘health service assumes [some] responsibility’ for the patient, but not that all police responsibility ends at that time.

Police also have a duty to the person in their care and custody.  Gaoler and prisoner is a well-established category where there is a duty of care and that would also be true for anyone who has taken someone into their care and control and in particular where they are using coercive powers (an EEA does not require the patient’s consent) and where a person may be detained against their will.  Further, even if the police do not have legal responsibility for the patient, they do have duties to protect the public if there is a risk to community safety. This is not like Stuart v Kirkland-Veenstra where the criteria for detention under the Victorian Mental Health Act had not been established.  In the scenario under discussion the criteria for detention has been met and police have detained the person so that has to give rise to a duty of care toward that person and arguably towards others if the person is a risk.   Police cannot simply leave the patient in the hope that the hospital will magically find staff to assist.  What is reasonably will depend on the capacity of the hospital, a (hopefully shared) risk assessment and other demands on police resources.

The issue is not (or should not) be one of ‘liability’ but of risk.  The concern should not be ‘there is a liability if the patient injures staff’ but that there is a bad outcome for everyone if the patient injures staff.  That’s bad for the staff, it’s bad for the patient. If you can prevent a bad outcome you do as the role of assisting the mentally ill, and assisting the hospital staff, is to try and prevent bad outcomes.  If there was a guarantee of no liability would police be indifferent to harms caused to the mentally ill or staff?  I hope not – so liability is not or should not be the issue.

At the risk of editorialising, if police are there to protect the community and in particular the vulnerable it’s hard to know what ‘better things’ the police have to do.  It’s better to stop a person from injuring themselves or others rather than trying to clean up after the event.  It may be the case that police have things they’d rather do, that better fit their image of law enforcers or are more interesting than spending most of a shift sitting in a hospital, but that doesn’t make them ‘better’ things to do.

Conclusion

My correspondent asked

Can you tell me where police ownership ends here? Is it where the EEA is signed or is do police really have to hang around for 3 hours until the patient is triaged and accepted at ED?

The answer (putting aside the objection to the use of the word ‘ownership’) is as set out in the operations manual. Police responsibility ends when it is ‘reasonable’ and that will depend on all the circumstances.  It would not be reasonable to leave a dangerous person unattended in an ED waiting room on the basis ‘we’ve brought him here, he’s your problem’.  It would not be reasonable for a hospital to say, ‘we don’t need to admit this person or we can leave him or her to last as the police are here filling our staff shortage’.  Like anything it’s a risk assessment.  The critical thing in the MOU between Health and Police is information sharing.  Let the hospital staff know if police are required elsewhere, discuss what behaviour has led to the person’s detention, give the hospital time to triage the patient given other demands etc.

There is no simple answer other than to say a statement to the effect that police responsibility ends as soon as they hand over the EEA has to be wrong.

The first post Welcome to the emergency services law blog was made on 29 January 2009.   The first substantive post, Ambulance Service v Neal, was made the same day.

Since then there have been 1005 posts; a total of 1,263,133 words.  The average word count has grown from 573 per post in 2009 to a maximum average of 1396 in 2017.  In both 2009 and 2010 I wrote 14 posts a year which is an average of 1.166 per month. In 2018 there were 195 posts, or 16.25 per month!

5479 people follow this blog via email, WordPress, Facebook, Twitter and/or LinkedIn. There have been 566,724 visitors to the blog and they have viewed 1,083,016 pages.  There has been 2,951 comments from readers, growing from 58 in 2009 to 500 in 2018. (There have been a further 104,017 spam comments that have been blocked by the site software).

And in 2018 the blog was ranked number 3 in the Top 25 Australia Law Blogs and Websites For Australian Lawyers!

What does the blog show about the risk of being sued?

There is a perception that people and emergency services are at constant risk of being sued.   That there have been legal actions shows that there is a risk of litigation but only one of the cases saw the state, as operator of an emergency service, liable. And in no cases was an individual firefighter, paramedic or rescue officer sued.  In the ten years I have been writing this blog I have reported on:

• No cases where an Australia fire service has been successfully sued over alleged negligence in response to a fire or other emergency;
• No cases where an SES has been successfully sued over alleged negligence in response to a flood or other emergency; and
• One case – Roane-Spray v State of Queensland [2016] QDC 348 – where an Ambulance Service (or more accurately, the State) has been liable for injuries to a patient (see State of Queensland STILL liable for paramedic negligence (October 25, 2017)).

With respect to the fire services even though there has been no finding of negligence there have been several attempts including litigation from the Warragamba fire of 2001, the Canberra fires of 2003 and the Black Saturday fires of 2009.  See:

• ACT Court of Appeal upholds verdict in favour of NSW over Canberra 2003 bushfires (November 3, 2014);
• Queensland Fire and Rescue not liable after factory fire (October 3, 2014);
• Myer Stores Ltd v State Fire Commission[2012] TASSC 54 (August 24, 2012);
• Warragamba Winery Pty Ltd v State of New South Wales [2012] NSWSC 701 (July 19, 2012).

The litigation over the black Saturday fires all settled without a court determining if there has been negligence – see the cases listed here https://emergencylaw.wordpress.com/?s=black+saturday

With respect to floods, the class action over the 2011 Queensland floods is ongoing – see Litigation over 2011 Queensland Floods continues (November 9, 2014) and https://www.mauriceblackburn.com.au/class-actions/current-class-actions/queensland-floods-class-action/

Apart from Roane-Spray v State of Queensland [2016] QDC 348 there have been actions against ambulance services that have resulted in a verdict in favour of the ambulance service – see:

• Queensland Ambulance not negligent in treatment of patient’s extreme asthma (July 25, 2018); and
• Ambulance Service v Neal (29 January 2009).

With respect to rescue there have been two cases; one of which resulted in a verdict for the defendant – No duty to prevent a disaster and no duty to rescue (December 26, 2018) – the other has been remitted to the District Court of NSW and I don’t know if the matter is ongoing or has settled – Do police, undertaking body recovery at a motor vehicle accident, owe a duty of care to the victim’s family? (October 4, 2018).

When one puts that into context and considers how many fires, floods and other emergencies the fire, rescue and ambulance services have responded to, the risk of being sued is very low and the risk of being found liable, even lower.

Individuals are however criminally liable or at least have been charged. See for example:

• Court of Appeal dismisses appeal by RFS tanker driver involved in fatal collision (October 13, 2017);
• NT police officer gaoled for failing to render assistance (October 31, 2016);
• Victoria SES Commander guilty of an offence, but no conviction recorded (April 22, 2014);
• Victorian Police officer charged with reckless driving (January 30, 2014)
• West Australian police officer charged (June 15, 2012
• Suspended jail sentence for firefighter involved in a fatal accident (October 24, 2009)

And for prosecution of a service see

• Outcome of Airservices Australia prosecution over fatal fire appliance accident (April 24, 2016).

Reflections

It’s been an increasingly busy 10 years but that’s not because there’s been a dramatic rise in law and legal consequences for the emergency services.  Rather I think it is because as the blog’s popularity has grown I’m asked more questions so that is a large source of the growing number of posts.

Second is changing technology.  Even 10 years ago it was harder to find cases and lawyers only got access to the reported cases.  As internet publishing has grown I am not limited to the Canberra Times so I get news stories from across Australia arriving in my inbox, and computer assisted legal research means cases are also delivered meaning that cases that, at one time, would have been lost in the mass of judicial decisions, come to my attention and can be reported here.  Who knows how changes in the next 10 years will impact upon what we can discover and report.

Thank you

I thank all the readers for taking the time to read what I have written, I thank (most) contributors for their reasonable and (usually) polite comments and I thank all the members of the emergency services for their service.  I value the opportunity to contribute to your work and your helpful and kind feedback.  I look forward to continuing my service in this ‘back room’ for the next few, if not 10, years.

I also acknowledge and thank the Australian National University College of Law and the Bushfire and Natural Hazards Cooperative Research Centre for their support of my work and therefore this blog.

“Coroner hits out at police use of Google Maps printouts in search for missing man” is the headline of a story appearing on news.com.au today.  It also carries the tagline ‘Police slammed over google maps search’.

That is somewhat an overstatement.  The Coroner’s findings are available online: Inquest into the death of Darrell Gene Simon (19 December 2018).  It should be noted that Mr Simon was last seen on 16 November 2014.  The search, the subject of this inquest and the news report took place on 23 November 2014 so the inquest is not talking about a search conducted today.  Mr Simon’s remains were eventually located in May 2016.

The Coroner did comment on the search for the missing man and did say, at [187] ‘The fact the ground search was conducted over only half the property was very regretful and should not have happened.’  The use of google maps as a search tool was subject to comment.  At [128] the coroner said:

Sgt Esaias and SC Reid had obtained an aerial map from the Lockyer Valley Regional Council, at no cost to QPS. It is quite apparent the quality of the images of the property on this map is far superior to the Google map images used in the search of the property and one wonders if the same mistake in conducting a search of only half the property would have been made if this map had been obtained by Sgt Harm.

And at [188]-[189]:

Counsel Assisting submitted there were a number of reasons why Darrell’s remains were not located sooner. Counsel for the Commissioner of Police accepts those submissions. The reasons submitted include as follows:

1. The search was informed by a printed copy of a Google Maps image of the property, which is less helpful in determining the property’s boundaries and features than other map products available to QPS.2
2. QPS otherwise relied on verbal descriptions of the property and its boundaries by relevant witnesses and did not take any other steps to verify the precise location of those boundaries and then communicate this to those searching the property.
3. The property had large areas of impenetrable scrub and lantana and steep terrain, preventing a standard line search from being conducted and making some areas of the property inaccessible.
4. The verbal briefing process between SES and QPS following the search failed to identify or alert QPS to the fact the entire property had not been searched and, specifically, that one of the two groups had not searched up to the western boundary.
5. Whilst data downloaded from GPS trackers worn by the SES volunteers that day indicated a significant portion of the property had not been searched, this was not identified by Sergeant Harm or any other QPS officers involved in the investigation into Darrell’s disappearance until after Darrell’s remains were located 16 months later by the property’s new owners.

Counsel for the Commissioner submits that notwithstanding those failings in the conduct of the search, there is no evidence this contributed to Darrell’s death. This is accepted.

Is that ‘hitting out’ or ‘slamming’ police?  I don’t think they are adjectives I would use.

Many people in the emergency services sector are scared of the coroner.  It is a refrain in training – “do it this way or you’ll have to explain to the coroner!”  Or a threat that having one’s actions questioned by the coroner is always a career limiting event.

In this case Sergeant Harm had been the “the QPS search coordinator”.  It was Sergeant Harm who briefed the SES search parties and who relied on a google map of the property for the purposes of coordinating the search.  Sergeant Harm was not subject to criticism for his actions, nor were recommendations made to discipline him or prosecute him. A review of the search by Queensland Police concluded that ‘Sgt Harm had done a creditable search’ ([118]).  Further (at [119]):

Sgt Harm has considered the review and has provided further information as to what he believes could be done to improve the search capability of the QPS. Sgt Harm believes the ability to download the GPS trackers to a laptop on site in this case may have assisted to identify that the whole property had not been searched immediately and a further search of the remainder of the property could have been conducted. He had identified the following improvements:

1. Refresher training in the Ozi Explorer for part-time land search coordinators. He has received further training in the system since the incident and found it helpful as the system is not often used operationally.
2. Downloading of GPS trackers onto the Ozi Explorer system could be conducted as soon as possible after use at the scene, if possible, to enable immediate decision to be made on search area coverage. A laptop could be made available for field use for this purpose.
3. The laptop and GPS trackers could be stored together so they could be picked up at the same time when needed.

Further the police had acted on those suggestions. At [120]:

Snr Sgt Whitehead said these recommendations were all valid suggestions. Since 2016 all GPS search coordinates are either downloaded at the scene or as soon as possible back at the station to verify the area searched. To do this at the scene would require a SAR computer. In any case any delay in considering the GPS data would only be half a day. GPS devices have been sent to almost every QPS station and 700 licences for Ozi Explore had been provided. Snr Sgt Whitehead also QPS have available various mapping sources including Google, RP data and local councils. SAR officers can utilise Intel officers to assist in obtaining such maps if not readily available.

The relevant recommendations from the coroner were ([198]):

ii. That QPS considers the adequacy of resources, information and training currently provided to its officers for the purpose of coordinating and conducting land searches, to ensure officers are able to and do in fact access high quality map products and GPS tracking data in a timely way. Whilst not prescribing how QPS might ensure officers take these steps in the future, an example may be to implement some type of quality assurance checklist that officers are required to complete as they go.

iii. That QPS consider whether improvements can be made in relation to communication between SES and QPS at the conclusion of a land search involving SES volunteers, to ensure vital information is passed on to QPS officers responsible for the quality and accuracy of that search.

Conclusion

It appears that Sgt Harm remains a sergeant of police and his experience in this search has given assistance to both the QPS and the coroner to make recommendations for future searches. Again hardly ‘hitting out’ or ‘slamming’ police nor evidence that appearing before the coroner constituted a direct, personal and career limiting event for Sgt Harm.

This is an example where there were issues in the response, but they are not used to blame police (in part as there was no suggestion that a different response would have saved Mr Simon’s life). Rather the experience has been used to make recommendations – to identify and implement lessons learned – to improve future searches. That is what a coroner’s inquest is meant to do.

For other posts on the coroner and the generally benign response to emergency services and their efforts see all the posts here – https://emergencylaw.wordpress.com/?s=coroner.  And can trainers (and others) please stop using the coroner as a threat to obtain compliance.

 

Following the post Treating patients whilst ambulances are ramped (December 28, 2018) another St John (WA) paramedic writes to say:

What is currently happening in WA is highly problematic. Paramedic and transport crews are arriving at hospital, the patients are triaged as normal and are then ramped. However, rather than continuing care in the triage area or airlock as has happened for years, we are now often asked to wheel the stretcher into the waiting room and continue care out amongst waiting room patients and visitors.

There are several concerns regarding this method of ramping, including, but not limited to:

1) Paramedic crews do not have the protection of security windows from aggression/violence in the same way that hospital staff do. With known regular violence/abuse towards paramedics, this is a horrible situation to find yourself in often.

2) We also do not have swipe cards to return to the triage are therefore our only egress from difficulties in the waiting room is the main sliding doors to the car park.

3) If a threat to safety occurs, my human instinct and my paramedic training always urge me to run from danger, however, I can’t just run and leave a vulnerable patient lying on a stretcher in an aggressive environment, but I do not want to compromise my safety by negotiating the stretcher through the public entrance and down on to the pavement to get us all out safely.

4) There is no confidentiality or privacy afforded to the patients on stretchers who are now being treated in a highly public space and in full view of mobile phones/cameras etc.

5) Patient safety is compromised by being suspended at waist level on a rickety stretcher and will be easily toppled should an altercation occur in the waiting (as often happens as we all know).

6) Treatment using opioids and schedule 8 medications has to continue in this public arena and does not feel safe.

7) A patient who is vomiting, defaecating, urinating, PV/PR bleeding, crying etc has absolutely no privacy and suffers a complete loss of dignity as a result, it’s awful to watch.

8) When a crewmate has to visit the ambulance to replace depleting stock from the treatment bag, or change an oxygen cylinder, or get water for the patient, or tend to personal needs, the remaining paramedic or transport officer is now left alone in this public space with the stretchered patient and it’s quite a vulnerable feeling.

I could go on forever with this list the more I think about it, but the problem is, we are given no options.

A) ED staff are adamant that the airlock is a safety risk if there are more than two stretchers therefore advocating for the patient is a complete no-no and garners no success whatsoever.

B) St John Ambulance WA management are adamant that treatment MUST NOT be continued in the safety of the ambulance whilst it is parked outside, no matter how many times this is discussed, it is being strictly forbidden.

With this stalemate in mind, it feels that the patient suffers first and foremost, but the paramedic and transport staff are in a very difficult situation, often intolerable, with nowhere to turn. This has been a problem for a couple of years now, however, with the advent of a registration, I personally feel that I am not upholding my registered practitioner commitment to best patient care.

With the simple solution available of returning to the privacy of an ambulance and continuing treatment within the safe confines of an air-conditioned space which is secure for the patient and staff, as well as maintaining patient privacy and dignity, I wonder if my duty as a registered paramedic is to stand my ground and ensure that this option is taken rather than the two unsuitable options outlined above.

It seems to me that there are two legal issues.  The first is the obligation of the employer to ensure the health and safety of their staff and to ensure that their practices do not expose the patients to an unreasonable risk to health and safety (Occupational Safety and Health Act 1984 (WA) ss 19 and 21).  Persons who have control of a workplace where other people will work have similar duties. This is relevant as the hospital has control of the ED which is a place where non-employees of the hospital (ie the paramedics) will work so the hospital also has duties to ‘take such measures as are practicable to ensure that the workplace, or the means of access to or egress from the workplace, as the case may be, are such that persons who are at the workplace or use the means of access to and egress from the workplace are not exposed to hazards’ (s 22).

To the extent that the paramedics think the work practices of St John or the hospital are exposing them and their patients to an unreasonable risk to health and safety then it would be appropriate to take that up in an organised way under the consultation arrangements that exist under that Act.  That may involve taking the matter up with the relevant Safety and Health representatives, Safety and Health Committees or a Safety and Health Inspector.  Whilst trade unions do not appear to have specific functions under the WA Act, it may also be worthwhile taking the issue up with the relevant trade union.

The other issue relates to the professional obligations of now registered paramedics.  As professionals, paramedics should be advocating on behalf of their patients and putting the patient’s interests first.  The Code of Conduct (Interim), published by the Paramedicine Board, says that paramedics have ‘ethical and legal obligations to protect the privacy of people requiring and receiving care’ ([3.4]).  Generally (at [1.2]):

Practitioners have a duty to make the care of patients or clients their first concern and to practise safely and effectively. They must be ethical and trustworthy. Patients or clients trust practitioners because they believe that, in addition to being competent, practitioners will not take advantage of them and will display qualities such as integrity, truthfulness, dependability and compassion. Patients or clients also rely on practitioners to protect their confidentiality.

Treating patients in a public place where there is a secure ambulance, and in the absence of any clinical reason for the direction ‘that treatment MUST NOT be continued in the safety of the ambulance…’ would seem contrary to one’s obligations to maintain the patient’s privacy and provide ‘good practice’.

It has always been my view that one of the arguments in favour of paramedic registration was to empower paramedics to advocate for their patients.  A registered paramedic’s duty is not simply to follow his or her employer’s directions but also to advance his or her patient’s interests and provide professional, good care. This is an example where the independent duties of paramedic practitioners can be used to bring pressure on the employer and the hospital to address the issue of how ambulance patients’ are treated pending transfer into the care of the hospital.   This may be a matter to take up again with a trade union or with the West Australian chapter of Paramedics Australasia (of which I am a board member).

Conclusion

All those involved in the patient’s care, the paramedics, the nurses, the doctors, the hospital and St John have mutual obligations to ensure that the patients receive appropriate care and that the safety of both paramedics and patients are protected.

It would certainly be interesting to know why St John (WA) ‘are adamant that treatment MUST NOT be continued in the safety of the ambulance whilst it is parked outside, no matter how many times this is discussed, it is being strictly forbidden’.

Today’s correspondent is a:

… paramedic with St John Ambulance in West Australia.

Often we are ramped with patients at the government hospitals. These patients are triaged by the hospital nurse and then we are told to wait with the patient on our stretcher and sometimes the patient is placed onto a hospital bed and we are still told to wait with the patient until they are admitted into the ED.

The patient’s details are at this point have been typed into the hospital system and they have been given a triage score, and hospital paperwork printed out.

My two questions are:

1. Suppose an elderly patient who is asleep on your stretcher quietly dies. Who is legally responsible for the patient?
2. If you are looking after the ramped patient and decide to treat the patient under your guidelines and the hospital staff say they do not want you to do whatever treatment you are intending to carry out, do they have the authority as technically you are ramped and not yet admitted into an ED cubicle?

The answer to question 1 is that both the paramedics and the hospital are responsible.  In Darnley v Croydon Health Services NHS Trust [2018] UKSC 50 the Supreme Court of the United Kingdom said:

It has long been established that such a duty is owed by those who provide and run a casualty department to persons presenting themselves complaining of illness or injury and before they are treated or received into care in the hospital’s wards. The duty is one to take reasonable care not to cause physical injury to the patient (Barnett v Chelsea and Kensington Hospital Management Committee [1969] 1 QB 428, per Nield J at pp 435-436). In the present case, as soon as the appellant had attended at the respondent’s A & E department seeking medical attention for the injury he had sustained, had provided the information requested by the receptionist and had been “booked in”, he was accepted into the system and entered into a relationship with the respondent of patient and health care provider… This is a distinct and recognisable situation in which the law imposes a duty of care. Moreover, the scope of the duty to take reasonable care not to act in such a way as foreseeably to cause such a patient to sustain physical injury clearly extends to a duty to take reasonable care not to provide misleading information which may foreseeably cause physical injury.

(For a discussion on Darnley’s case see Advising patients who want to leave a hospital emergency department – UK and Australia (October 16, 2018)).

Where the patient has been seen by the triage nurse and their ‘details have been typed into the hospital system and they have been given a triage score, and hospital paperwork printed out’ then just as in Barnett v Chelsea and Kensington Hospital Management Committee the hospital has a duty ‘to take reasonable care not to cause physical injury to the patient’ and I would suggest to actually make efforts to admit and treat the patient.

The paramedics also owe a duty of care to their patient. (That is axiomatic but for legal authority see Kent v Griffiths [2001] QB 36).  So, both agencies have a duty to act reasonably.  For the hospital that may be a duty to try and find a bed in accordance with the patient’s triage score. For the paramedics it has to be to continue to ‘treat’ their patient.  If the patient’s condition deteriorates, it would be incumbent on the paramedics to notice that, bring it to the attention of the triage nurse, and if necessary, take appropriate action in accordance with their training and procedures.

As for question 2 and for further discussion on similar issues, see:

• Victorian Paramedics treating patients inside the A+E (June 12, 2015); and
• Treatment in a Victorian hospital carpark (August 19, 2015).

 

A member of the NSW SES has some questions relating to entry powers and rescue.  My correspondent says:

I am a member of a non-rescue accredited SES unit, meaning we are not accredited by the state rescue board to carry out general land rescue. This function is performed in our area by Fire and Rescue NSW (FRNSW). Recently, we were tasked by FRNSW to assist them with a job, a bird caught on wire in a tree.

Upon arriving at the job, we soon discovered the resident on who’s land the bird was stuck did not want us to be there and would not allow us to stay. The bird was visible to us and was in clear need of rescue.

I have several questions relating to this scenario.

1. Do SES units not accredited to perform rescue work still have the same rescue powers as those units when in support of the primary rescue agency?
2. In what circumstances can the SES (or any other agency) enter private property to affect a rescue or similar occurrence without permission from the owner?
3. What qualifies as a ‘rescue’ under the legislation, and does a bird (in this case a magpie) allow for the use of rescue powers under the relevant act.
4. Do other agencies, (e.g. the RSCPA or the police) have any entry powers here and can the SES exercise these powers in support of their role?
5. Assuming this is deemed a ‘rescue’, what powers do the SES have here (if any) to establish an ‘incident scene’ and perform other functions, including any powers to break objects to affect the rescue (e.g. cutting a tree branch) or removing bystanders from the situation?

Rescue squads are accredited by the Minister on the advice of the State Rescue Board (State Emergency and Rescue Management Act 1989 (NSW) ss 42-60).  For the purpose of the Act rescue means (s 3) ‘the safe removal of persons or domestic animals from actual or threatened danger of physical harm’.    Section 52(2) adds:

An organisation, such as the Royal Society for the Prevention of Cruelty to Animals, New South Wales or the Wildlife Information and Rescue Service, that specialises in animal welfare or animal rescue operations or both does not constitute a rescue unit for the purposes of this Division.

That answers question 3, above.  Rescuing a magpie, assuming it’s a wild bird and not a pet, is not a rescue for the purposes of the Act.

There are no particular powers vested in rescue squads by the State Emergency and Rescue Management Act 1989 (NSW). Whatever powers the rescue operator has comes from the Act that establishes their agency or common law.  The answer to question 1 is, therefore, the members of the SES have whatever powers the State Emergency Service Act 1989 (NSW), and the common law, gives them.

For the answer to question 2 see:

• Legal authority for police to enter a burning house – is it required? (March 25, 2018);
• Forcing entry to save a life (June 3, 2016);
• Forcing entry to perform a rescue (November 13, 2014); and
• Is there a right to refuse rescue? (December 12, 2011).

See also

• Entering private land to extinguish a fire in Melbourne (July 2, 2014); and
• Entering private land to fight a bushfire in NSW (June 16, 2013).

The problem with this scenario is that it is not a rescue.  Many would suggest that animals should be considered as entities that have rights, but that is not the law.  They are at best property (see Compensation for a lost dog (December 9, 2018)).   That means that this animal does not have a ‘right’ to be rescued. The doctrine of necessity would still justify actions to protect a bird but the decision to override a private property owners’ insistence that you not enter would be much harder to justify given that all that is at risk is ‘mere property’ and not even private property.

The answer to question four is that an inspector appointed under the Prevention of Cruelty to Animals Act 1979 (NSW) may (s 24I):

… examine an animal if the inspector suspects, on reasonable grounds, that:

(a) an offence against this Act or the regulations is being, has been or is about to be committed in respect of the animal, or…

(c) the animal is so severely injured, so diseased or in such a physical condition that it is necessary that the animal be provided with veterinary treatment and the animal is not being provided with that treatment, or

(d) the animal is so severely injured, so diseased or in such a physical condition that it is cruel to keep it alive, and the animal is not about to be destroyed, or is about to be destroyed in a manner that will inflict unnecessary pain on the animal.

An inspector may enter land for the purposes of making that inspection (s 24E) and may take custody of the animal (s 24J).  The SES could assist if they are asked to do so and provided they are not entering residential premises (s 24M).  This bird was in a tree not ‘residential premises’.  It could be argued that the garden of a house is part of the ‘residential premises’ but I would not expect s 24M to be read so widely as that would defeat the purpose of the Act and it is one thing to say that the inspector cannot invite anyone into a home, it is less invasive to enter just the garden.

The Prevention of Cruelty to Animals Act 1979 (NSW) does not mention the use of force so if it was going to be necessary to break open a gate or restrain the property owner one would want to ensure that the police were there and take their advice on what is permissible.

Finally, with respect to question 5 the SES have no particular powers to be used here.  The various emergency powers vested in the SES apply when there is a flood, storm or tsunami (State Emergency Service Act 1989 (NSW) s 19).  There are no specific rescue powers.  The authority at a rescue comes from the common law.  In the Kuru v State of New South Wales (2008) 236 CLR 1 Gleeson CJ, Gummow, Kirby And Hayne JJ said (at [40]):

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

There are also powers vested in police (State Emergency and Rescue Management Act 1989 (NSW) ss 60L and 61) and they may be assisted in the performance of those functions (s 61AA).  Calling the rescue squad is part of that assistance but it is the police powers that are being exercised.

In my work I hear from people in the emergency services who fear that they will be liable, either personally or that their agency will be, if they fail to protect people from disaster or their own actions or fail to rescue them when they find themselves in trouble.  It has been a theme of this blog that there is no common law duty to rescue.  Further, the common law may impose tort liability if you cause harm, but not if you fail to prevent harm.  These issues have again arisen and again a superior court has confirmed that there is no duty to prevent harm or to effect a rescue.

The issue arose in Ibrahimi v Commonwealth of Australia [2018] NSWCA 321.  This was a class action following the shipwreck of the boat identified as SIEV [Suspect Irregular Entry Vessel] 221.  SIEV 221 was smashed against rocks on Christmas Island, off Western Australia, at about 6.30am on 15 December 2010.  50 people died and 41 people were rescued.  The action was brought on behalf of those that survived and the relatives of those that died as well as those who witnessed the accident and were exposed to a risk of psychological harm.

The action was brought against the Commonwealth of Australia over alleged failures by then Border Protection Command to effectively patrol the waters to the north of Christmas Island to intercept SIEV 221 before it ran aground and for negligence in response to the emergency when the vessel was in distress and there was a threat to the safety of lives at sea.   The Commonwealth succeeded at trial, the plaintiff’s appealed. The decision on appeal was delivered by Meagher JA with whom Payne JA and Simpson AJA agreed. (I note that even though the event occurred on or near Christmas Island and the relevant law was the law of Western Australia, this action was heard in NSW.  The choice of the NSW Courts is not explained.  I assume it probably has something to do with the class action rules in NSW).

At the time, Border Protection Command had available to it two boats, the HMAS Pirie operated by the Royal Australian Navy, and the ACV Triton operated by Australian Customs.   Two other boats, the Colin Winchester operated by the Australian Federal Police and the Sea Eye, operated by the Volunteer Marine Rescue Service were currently out of service.

The SIEV 221 was observed sailing toward Christmas Island at 5.40am.  It was observed at various points until 6.15am when it was struck by a wave and a fuel drum was lost overboard. With no fuel the vessel was now in imminent danger of being dashed on the rocks. At 6.28am the vessel was ‘being violently pushed and pulled by the swell and taking on large amounts of water from waves crashing over its sides. Parts of the vessel were beginning to break up.’

At the time the Pririe was not on active patrol.  It had intercepted SIEV 220 the day before and was standing in the lee of the island (ie out of the weather) and standing by whilst a ‘steaming party’ from the Pririe took control of SIEV 220.

At about 6am, Commander Livingstone of the HMAS Pririe was contacted by the Commander of the ACV Triton to see if he had been advised of a possible SIEV.  The two commanders agreed that Pririe would sail north to investigate SIEV 221 whilst the Triton would take over the control of SIEV 220.  It took some time to recover crew and get ready to sail.  By 6.32am the Pririe was sailing north.  At that time the commander also received notice that SIEV 221 had lost its engines and was 50m off the rocks.  At 6.35am tenders from the Triton were also launched to assist with what was going to become a dangerous rescue.  By 7.08am crews from both the Pririe and the Triton, operating in smaller boats were affecting rescue and body recovery.  Operations continued until 1pm.  Over the next 2 days further searches failed to find any more bodies or survivors.

The question of a duty of care

The Commonwealth did not owe the alleged duty of care to the occupants of the SIEV.   The risk of being shipwrecked when travelling to Australia in an unseaworthy vessel was not a risk that (at [207]) were ‘directly increased by any positive act of the Commonwealth’.   At [215]:

… the patrol operation north of Christmas Island included a series of positive acts, none of them caused the shipwreck of SIEV 221. The Commonwealth is not said to have contributed to the weather on 15 December 2010, or the failure of the boat’s engine, or any other physical event or state of affairs capable of bringing about a shipwreck.

And at [223]:

… nothing done by the [Commonwealth] in this case made the situation of those on board the SIEV worse. In particular, there was no evidence that the provision or sponsorship of rescue facilities tended to dissuade intervention by any third party.

The Commonwealth may not have prevented the ship sailing onto the rocks, but there was nothing the Commonwealth did that caused or contributed to the ship sailing onto the rocks.   And the belief that the Commonwealth would come to the rescue did not stop anyone else (had there been anyone else available) to come to the SIEV’s aid.

A critical issue in deciding whether there is a duty of care, in this case a duty to intercept and/or a duty to rescue, is the vulnerability of those at risk.  On one view the passengers on the SIEV were very vulnerable.  They were on an unseaworthy vessel, without engine, in poor weather and at risk of and then in fact being caste upon the shore.  Neither the trial judge nor the judges on appeal saw that as the correct formulation of the risk.  At [233] Meagher JA said:

As I have said, the relevant risk of harm in the present case was the risk of harm from a SIEV being shipwrecked. It was not a risk arising from the failure of the Commonwealth to intercept the vessel prior to it being wrecked. The appellants failed to demonstrate that an ascertainable class of persons were reliant on the Commonwealth to protect them from the risk of shipwreck. The primary judge was correct to conclude that the ability of the class to protect themselves from the risk of shipwreck by not embarking on the journey was a factor tending against the imposition of the duty of care alleged.

That is they was something they could do to protect themselves from the risk of shipwreck and that was something that did not depend on the Commonwealth.  They could have decided not to get on board the boat before it set sail from Indonesia.

The flip side of vulnerability is the issue of control.  A defendant cannot owe a duty of care unless it can exercise control over the risk. In this case the risk was the risk of shipwreck. The Commonwealth may have been in control of the rescue mission but that was not the risk.  Meagher JA said (at [237]):

… the capacity of a public authority to take action to protect another person from harm is too remote to constitute legal or practical “control” for this purpose.  The relevant risk of harm in the present case was the risk of harm from a SIEV being shipwrecked. It was not a risk of harm from the failure of the Commonwealth to intercept the vessel prior to it being shipwrecked. If the risk of harm is characterised in the way asserted by the appellants, a public authority would always have relevant control in a rescue case as it is self-evident that a person in need of rescue will always be exposed to an underlying risk if not prevented from engaging in the activity giving rise to that risk. The primary judge correctly concluded that the risk to the appellants did not arise from any conduct on the part of the Commonwealth.

Finally it was alleged that finding that the Commonwealth owed duties to intercept and rescue those arriving on SIEV’s would be inconsistent with the Commonwealth policy. More importantly, for readers of this blog, is [257] where Meagher JA said:

When public authorities, or their officers, are charged with the responsibility of exercising powers in the public interest, the law does not ordinarily subject them to a duty to have regard to the interests of another class of persons where that would impose upon them conflicting claims or obligations.

Even if there had been a duty of care, the appellants were unable to establish that there was anything different that the Commonwealth could or should have done to respond to the emergency or that anything reasonably done, or not done by the Commonwealth agents, caused the plaintiffs’ losses or damage.   For the sake of this blog we do not need to consider the details of the heroic rescue attempts by the crews of the Pririe and the Triton.  Suffice to say that there was no real prospect that either the Pririe, the Triton or the boats launched from them could have towed SIEV 221 to safety or come closer the floundering boat.

Discussion

A summary of the key points of Ibrahmi can be taken from the headnote (a summary written by the Court).  The key points are:

1. The mere foreseeability of harm does not produce a duty to prevent its occurrence…
2. First, the likelihood and extent of harms suffered are not said to have been directly increased by any positive act of the Commonwealth…
3. Secondly, the interception operation involved choices by the defendant about the exercise, and non-exercise, of statutory and prerogative powers…
4. In respect of vulnerability, there was no reliance by the group members on the defendant which would give rise to relevant vulnerability
5. With regards to control, the degree and nature of control by a public authority over the relevant risk of harm is crucial in determining the existence of an alleged duty of care. The primary judge correctly concluded that the risk to the appellants did not arise from any conduct on the part of the defendant, and the defendant did not have control in the relevant sense…
6. A public authority that chooses to perform an act authorised, but not required, by statute is generally liable for any negligence in its performance. However, it is not generally liable for the mere choice not to perform such an act. There is no expectation of general reliance, that an entity will properly perform its public or private function…

Applying those principles to Australia’s emergency services the parallels are:

1. The SES’s and the fire brigades may foresee that people are at risk from storm, flood or fire but that does not create a legal duty on those agencies to prevent that harm. Consider the role of the NSW SES in response to storms. In anticipation of a storm citizens could call 132 500 and ask the SES to come and clean the gutters. That would reduce the risk of harm (just like patrolling north of Christmas Island to intercept a SIEV would reduce the risk) but that does not create a legal obligation to do so.
2. The actions of the SES or the fire brigades do not increase a risk. Where there is a fire burning or a flood the agencies are not in control of the risk. This is even more so when people chose to drive into flood waters or remain to defend their property.  In a comment to an earlier post (NSW SES following up on jobs assigned to other agencies (December 23, 2018)) I was given this scenario and question:

…in the following hypothetical who is liable?

Briefly, a tree is down across a regional road on a blind corner. A person who travels the road many times a week drives down the road and crashes into the tree. The person is critically injured and the car is written off. The tree across the road had been previously reported to SES and a job created and assigned to Kickatinalong Unit who had referred the job to Kickatinalong Council and in their unit records marked the job as completed. Kickatinalong Council had not as yet got to the job.

The risk is a risk of collision with an obstacle on the road.  The choice of a driver in how he or she operates a vehicle is the source of risk.  An agency like the SES may have a response capacity to a tree down but they did not create the risk – they did not cause the tree to fall nor are they responsible for the maintenance of the tree.  There is nothing the SES does that increases the risks to drivers who have to drive with an expectation that there may be obstacles on the road at any time.

As Meagher JA said in Ibrahimi “… the capacity of a public authority to take action to protect another person from harm is too remote to constitute legal or practical “control” for this purpose.”  In the scenario given above the relevant risk is running into a tree on the road, not a risk that the SES will fail to clear the road or fail to rescue the person in time should they collide with a tree.

3. Like the Commonwealth on Christmas Island, the Australian emergency services have many options but few obligations. Taking NSW SES as an example, they are required to control the response to emergencies caused by storms, floods and tsunami (State Emergency and Rescue Management Act 1989 (NSW) s 8(1); NSW Emergency Management Plan, Annexure 3)) but there is nothing in the SES Act that says that the SES must do any particular thing.  What services the SES choses to provide are a matter for the SES’ discretion. After the storm the SES may choose to come and tarp roofs or clear trees but there is nothing in the SES Act that says the SES must do those things.    And what different units consider a proper SES job varies, as it should.  Different units have different risks and differing levels of support from other agencies. Some SES units may clear trees off a road, others may refer those jobs to their local council.

Exercising choices does not generally give rise to a duty to perform any particular action or response.

4. People are not dependent on the SES or fire service to reduce their vulnerability. People do not fail to prepare their properties for floods, storms or fires because they believe that the emergency services will come and protect them or reduce their risk.  No-one can drive at 120km/h in the belief that roads authorities and the SES will guarantee that roads will be kept clear.
5. As noted above the emergency services may control the response to a risk but they do not control the risk. They do not control, nor are they responsible for, the fire, flood or storm.
6. The SES and the other emergency services have the resources and powers that they have ‘in the public interest’. When responding to a flood the SES has many competing interests and may seek to protect the central business district of a town in order to allow the economy to resume after the event.  Making those choices may mean private homes are left unprotected or at least unassisted.  If there was a duty to each property owner to protect their property, then it would be impossible to meet the duty owed to everyone.  This issue is particularly important for fire brigades who move to extinguish a fire in order to stop it spreading for the public good rather than to protect the interest of the person whose property is on fire.

Conclusion

The decision in Ibrahimi v Commonwealth of Australia [2018] NSWCA 321 is long and complex and no doubt this post has not done it justice.  However in essence it confirms the law from other cases (such as Stuart v Kirkland Veenstra (2009) 237 CLR 215 and Graham Barclay Oysters v Ryan (2002) 211 CLR 540) that government authorities do not have legal duties to prevent harms to others or to rescue them.

Governments make choices on what services they provide and how they respond to demands on public resources.  The legal obligation is not to increase risk to others, not to take steps to protect people from their own decisions.

Today’s correspondent has noted that there are 999 posts on this blog, so this becomes post 1000!  The question relates to the term “open air” when used in South Australia’s bush fire regulations.  My correspondent says:

I have a question about fire bans and ‘open air’.

When I read the legislation on fire ban’s in South Australia (https://www.legislation.sa.gov.au/LZ/C/R/COUNTRY%20FIRES%20REGULATIONS%202004/2005.09.30/2004.189.UN.PDF) it has a section “34—Fires in the open air on a total fire ban day” however does not define ‘open air’.

Dictionary definitions I’ve found:

• Cambridge English (https://dictionary.cambridge.org/dictionary/english/open-air) – used to describe a place that does not have a roof, or an event that takes place outside
• The Free Dictionary (https://www.thefreedictionary.com/open+air) – the place or space where the air is unenclosed; the outdoors
• Collins (https://www.collinsdictionary.com/dictionary/english/open-air) – An open-air place or event is outside rather than in a building
• Google search – a free or unenclosed space outdoors.

As an example, a large entertaining area which has a solid roof, on three sides is enclosed by buildings, and the forth is enclosed by a brick wall and shade cloth to me is not ‘open air’.

The regulations referred to, the Country Fires Regulations 2004 (SA) were revoked on 30 September 2005.  The current relevant rules are found in the Fire and Emergency Services Act 2005 (SA).  Section 79(1) says:

… a person must not light or maintain a fire in the open air during the fire danger season.

Maximum penalty:

• for a first offence—$5 000 or imprisonment for 1 year;
• for a second or subsequent offence—$10 000 or imprisonment for 2 years.

There are other rules relating to fires in the open air in ss 80, 81 and 89.  Further rules, and exemptions are in the Fire and Emergency Services Regulations 2005 (SA) rr 32A, 33, 34, 35, 36, 37, 41, 45 and 47. Even so, it is still the case that ‘open air’ is not defined.

The term ‘open air’ has been used for some time. In Opie v Mount [1942] SASR 35 the defendant was charged with lighting a fire in the open air with “a space of ground immediately around such fire of the width of 12 feet at least in all parts not having been previously cleared of all stubble, scrub, and other inflammable material”.  This was an offence contrary to the Bush Fires Act 1939 (SA).  The justices of the peace found (or it was admitted) that the fire was

… lit by an employee of the defendant in a square iron tank, open on one side, which side was partially shielded by an old oval iron tub… tank had a small hole 3 inches in diameter on the south side, and was partly open on top, and the fire was lit in the tank in a paddock… the fire was lit in the slaughter yard of the defendant’s premises for the purpose of boiling offal for the pigs…

The question of whether this was a fire ‘in the open air’ was referred to the Supreme Court.  Angas Parsons J said:

I have no doubt that a fire in a tank, in a paddock, is a fire used in the open air. The air in a paddock is obviously open, and the words ” open air” are used in the Act in contradistinction to the air in a place where it is confined, such as in a house, or any closed-in structure.

Mr. Litchfield [one of the barristers]… contended that wherever a fire was protected, not necessarily absolutely or perfectly, it was not a fire entirely in the open air. Alternatively, he said the matter should be resolved according to the degree of protection. I am indebted to Mr. Litchfield for his assistance notwithstanding that I feel bound to reject his contentions. ” Open air” means what it says, and it is opposed to what would be described as air which is not open, but is confined. It would defeat the manifest intention of Parliament to say that a dangerous fire used in the circumstances described in the case, was not a fire in the open air. A fire is no less, a fire in the open air whether it flings its sparks from the ground, or has some slight protection, such as from surrounding bricks, or is in a tin or tank. The Act does not deal with the vessel in which the fire is lit, but strikes at its being lit outside, i.e. out-of-doors, or, in the open.

The matter was referred back to the lower court to decide guilt and penalty on the basis that the fire was indeed a fire ‘in the open air’.

The modern legislation, in particular various provisions of the regulations listed above, also contain requirements for clearing around fires.  For example, the Fire and Emergency Services Regulations 2005 (NSW) r 34(1) says:

For the purposes of section 79(2) of the Act, a person may operate a gas fire or electric element for cooking purposes in the open air during the fire danger season, provided that—

(a) the space immediately around and above the gas fire or electric element is cleared of all flammable material to a distance of at least 4 metres; and…

If we consider the problem of bushfire and the decision of Angas Parsons J one might infer that a fire is lit in the open air if there is the potential for it to ‘fling’ its sparks onto the ground around the fire.  One might, however, infer that the fire in Opie v Mount was in a tank, something like a 44 gallon drum or other structure containing the fire but still outside. That sounds quite different to my correspondent’s scenario of ‘a large entertaining area which has a solid roof, on three sides is enclosed by buildings, and the forth is enclosed by a brick wall and shade cloth’.   If the area has 4 walls even if one is a combination of brick and shade cloth it is hard to imagine that this is ‘open air’.

Conclusion

The answer to the question of whether a fire has been lit in the ‘open air’ will depend on all the facts.  The more the place of where the fire is burning (rather than the article in which the fire is burning) is ‘confined’ then the less likely it will be held to be ‘in the open air’  A fire in a 44g drum in a paddock is in the open air; a fire in an installed wood  burning heater within a house is not in the open air even though, presumably, there is a chimney leading from the house and through the roof.  With modern architecture one can imagine varying degrees of home and building designs that allow the ‘outdoors in’ that at some point will mean the fire goes from being confined to ‘the open air’.  By avoiding specific definitions the legislature leaves it to the courts to determine on a case by case basis.

 

 

 

Today’s correspondent:

… received an update from a nursing employer regarding cover by their organisational insurance to advise we are covered except for…

• dishonest, fraudulent or criminal acts;
• services rendered by a health care professional while under the influence of intoxicants or narcotics;
• any failure to render services competently or at all because of such influence, or where such service was within the knowledge or connivance of a director, administrator supervisor or manager of XXXXXXXXXXXX;
• claims arising out of infringement or alleged infringement of Intellectual Property Rights;

or

• in relation to sexual conduct arising from, or alleged to relate to, actual or attempted sexual relations, sexual contact or intimacy, sexual harassment or sexual exploitation whether under the guise of treatment or not, or in the course of treatment or not.

I’m surprised that insurance would exclude these, but I would imagine though that notwithstanding any insurance coverage for health professionals that those exclusions would not absolve an employer vicariously from liability?

It’s true that insurance does not determine liability including vicarious liability.  Where the patient suffers harm or loss he or she may sue.

• If they sue the employee and the employee’s misconduct was so far removed from their employment, if they were on a ‘frolic of their own’ then it is the employee alone who is liable.
• If the employee’s negligence or misconduct was part of his or her employment – even doing an authorised act in an unauthorised way, then the employer will be vicariously liable and will have to make good the losses unless there is insurance.
• The patient may also sue the employer/agency for their direct negligence – failures in the way the business is operated, procedures and policies etc. That is creating the environment where harm occurs. This is direct liability where the employer/agency is liable.
• The employer/agency may have insurance. What the insurance covers is a matter of contract where the insurer can agree to meet some risks but not others. Where there is insurance the insurer will pay. Where there is no insurance the employer or the employee cannot pass the risk so they are liable.

The presence or absence of insurance does not determine if there is liability to the patient, just who will pay.  I’ll try and explain with a diagram:

The presence or absence of insurance does not determine whether there is a duty of care or liability (see Imbree v McNeilly [2008] HCA 40 Gleeson CJ but note cf Kirby J).

Turning then to the questions asked, one might think that the sort of conduct that is excluded by the insurer is also the sort of conduct that would not attract vicarious liability but that is not necessarily true; it depends on all the circumstances. In New South Wales v Lepore [2003] HCA 4, when considering whether a school was vicariously liable for the sexual misconduct of their staff, Gleeson CJ said (at [1]) ‘If a teacher employed by a school authority sexually abuses a pupil, is the school authority liable in damages to the pupil? No one suggests that the answer is “No, never”…’ (See also Prince Alfred College Incorporated v ADC [2016] HCA 37).

The critical issue is that the presence, or absence of insurance does not determine where liability lies.  That is important because in the culture of ‘teach by fear’ people are often told ‘if you do as we say you’ll be covered by your agency but if you do x or y our insurance doesn’t cover that and so you’ll be personally liable’ – as if vicarious liability and providing insurance that ‘covers’ members is a sign of goodwill rather than the law.   A member is protected in circumstances where their employer/agency is vicariously liable.  The insurance is something the agency takes out to protect itself (it being liable for the misconduct of employees) not to protect the employees or volunteers.

Conclusion

My correspondent is correct, the terms of insurance coverage offered by an insurer does not determine the scope of an employer’s/agency’s vicariously liability.  If the agency is vicariously liable for conduct that is excluded by the insurer, then it is the agency that will have to pay any damages from its own budget.

Another question arises out of the current storms that have been keeping the NSW SES busy.  This correspondent says:

With the severe hailstorms which lashed parts of Sydney in mid-December, the Commissioner of the NSW SES issued the attached Order intended to protect the employment of volunteers who choose to leave work to assist in the response and recovery efforts.

The Orders specifically state that they are enacted for a minimum of 48 hours, but can be extended (but, if they are extended, that is not communicated as readily, or able to be checked by members), but the Operations, at this point have been going for weeks, leaving me feeling that the Orders serve no real purpose.

In addition, the Section referred to in the Order is worded to protect members from “victimisation”, but I don’t see how that can be practically proven or applied to most members. At best, I could see how a full time employee could not be terminated in circumstances where their involvement in an emergency response could reasonably be seen as a factor in that decision, but with more people working part time, casual, on contract, or self-employed (so working for external clients). I see plenty of opportunities for employers to simply reduce hours/shifts/projects or choose not to engage that person further.

So, my short questions:

1. How hard is it to prove victimisation has occurred based on an employee’s involvement with a volunteer emergency service or incident response?
2. Have any cases tested this legislation? What were their outcomes?
3. Does this Order practically protect members under all employment types, or are some employment types impractical to protect?
4. Do the limited timeframes of these Orders mean that someone dismissed before the start date/time is unprotected?
5. Do these Orders really have any practical value in ensuring that volunteers will not suffer losses in terms of employment or earnings when they choose to give their time to assist the community?

Might be too wishy-washy in the questions, but any insight you can provide would be appreciated. At the moment, the fact that these Orders are issued haphazardly over Operations much longer than their timespan, and the wording of the Legislation, leaves me feeling this is, at best, lip service protection, or internal propaganda.

I have previously written on orders made under the State Emergency and Rescue Management Act 1989 (NSW) s 60B – see:

• Employment Protection for NSW Volunteers (June 9, 2016); and
• Employment protection during a NSW s 44 fire – amended (February 20, 2017).

In those earlier posts I did say that an order had to be signed by the Premier.  If you look at the current order you will see that it has been signed by the NSW SES Commissioner.  That is because of amendments to the Act that came into effect on 7 December 2018 (see Emergency Services Legislation Amendment Act 2018 (NSW) s 2(2)).   As a result of those changes the Premier or the Commissioner or a Deputy Commissioner of the NSW Rural Fire Service or the State Emergency Service can make an order specifying operations that are covered by s 60B (State Emergency and Rescue Management Act 1989 (NSW) s 60D).  Where a Commissioner or Deputy Commissioner makes the order, it is valid for not more than 48 hours.  Where the order is made by the Premier is remains in force ‘for the period specified in the order unless revoked earlier’.

Where an order is made then (s 60B):

An employer must not victimise an employee of the employer for being absent if the absence was due to the employee taking part, as a member of an emergency services organisation, in emergency operations to which this Part applies.

Further (s 60C):

An employer victimises an employee if the employer:

(a) dismisses the employee from employment with the employer or terminates the engagement of the employee by the employer, or

(b) alters the employee’s position in his or her employment with the employer, or alters the circumstances of the employee’s engagement by the employer, to the employee’s prejudice, or

(c) otherwise injures the employee in his or her employment with, or engagement by, the employer.

I should note the order does not compel an employer to provide paid time off for emergency services work but see the discussion on Community Service Leave in the earlier post – Employment protection during a NSW s 44 fire – amended (February 20, 2017).

I can now turn to the questions asked:

1. How hard is it to prove victimisation has occurred based on an employee’s involvement with a volunteer emergency service or incident response?

There is no general answer to that.  It depends on all the circumstances and how silly the employer is.  If the employer writes an email saying ‘your sacked because you’ve been on SES duty’ then it would be easy. If there are other reasons given and there is some reason to believe those other reasons are true, then it could be very difficult.

I should note that if the employee can show that his or her position has been affected then the burden to prove that ‘the defendant was not motivated by’ the employees absence ‘due to the employee taking part, as a member of an emergency services organisation, in emergency operations to which this Part applies’ falls to the defendant.  That is the defendant has to prove that they were not taking action because of the employees emergency service work, the prosecution does not have to prove that was the motivation (s 60E)

2. Have any cases tested this legislation? What were their outcomes?

I’m not aware of any relevant cases.

3. Does this Order practically protect members under all employment types, or are some employment types impractical to protect?

The order protects employees.  Not everyone is an employee.  My correspondent referred to ‘people working part time, casual, on contract, or self-employed (so working for external clients’.  Everyone is employed ‘on contract’ whether it is a fixed term or ongoing contract.  Casual staff who are not guaranteed hours may find themselves not being offered work and may find it hard to prove that that is because they took time off for emergency service work. Its also possible that a person on a fixed term contract may not have it renewed but showing that was because they took time during this operation would be difficult.  Persons who are self-employed are not employees.  If their customers chose not to come back to them that is their business.  Customers are not bound by these orders.

4. Do the limited timeframes of these Orders mean that someone dismissed before the start date/time is unprotected?

Yes, they only apply for the time they apply. This order only applies from the date it was made (21 December 2018) for 48 hours.

5. Do these Orders really have any practical value in ensuring that volunteers will not suffer losses in terms of employment or earnings when they choose to give their time to assist the community?

Probably not. An employer who is willing to penalise an employee is probably not going to be too worried about this section or if they are would make sure they phrased any correspondence in such a way as to avoid making admissions as to their motive.

If, however, the case is proved then the Court can not only impose a criminal penalty, it may also order a payment of compensation and/or that the employee is restored to their position (s 60F).

 

 

 

 

This question arises out of recent storm events across NSW.  My correspondent received an email from a NSW SES Local Commander that said, in part (emphasis added by me):

 … As the combat agency, we own all jobs that are called in or received until such time as they are completed. Jobs ARE NOT complete when we refer them to Essential Energy, our local council or Enviro Frontier. They are just referred to an organisation that is assisting us to complete the task – WE STILL OWN IT…

The important thing is that we (SES) still own the job and are liable and it CANNOT be marked as complete until such time as completion has been confirmed with the referee, i.e. council, Essential Energy, Enviro Frontier or whomever the job was referred to. In most instances that entails a return telephone call to the assisting organisation and obtaining confirmation of completion.

My correspondent says:

Hi Michael, I thought if a job is referred to, and accepted by, another agency then they have accepted the tasking. Is it then up to us to confirm that the job FRNSW, RFS, or Councils, have done what they said they would do?

On an initial point I do wish people did not use legal terms of art – such as ‘liable’ or ‘duty of care’ when that is never really the issue.  Raising legal issues, in this case ‘we (SES) still own the job and are liable’ is in my view either misplaced or trying to scare people into compliance.  Make the argument on what is good practice rather than raise issues of ‘liability’.

To now turn to the question.  I did write about a similar issue in Clearing up storm damage and the role of the property owner in NSW (August 18, 2014).  There the issue was whether there was a duty to follow up referral of jobs to local governments etc when the damage was on their land.  That’s slightly different to the situation described here but I think the principles are going to be the same.

The starting point is the State Emergency and Rescue Management Act 1989 (NSW).  That Act says (s 3) that the ‘combat agency’ is ‘the agency identified in the State Emergency Management Plan as the agency primarily responsible for controlling the response to a particular emergency’.  Control ‘means the overall direction of the activities, agencies or individuals concerned’ and controlling has to have the meaning of exercising ‘control’.   The SES is the combat agency for the response to storms (State Emergency Service Act 1989 (NSW) s 8(1)(a); NSW Emergency Management Plan, Annexure 3).

I don’t know what it means to say the SES ‘own the job and are liable’.  Liable for what?  The SES role is to set the ‘overall direction of the activities, agencies or individuals concerned’.  To set the priorities of the coordinated response.  It doesn’t mean the SES have to do every job, hence the SES can and does make use of its own assets (SES units) as well as assets from the RFS, FRNSW, councils etc.  How the SES choses to assign tasks and what procedures it has is a matter for the SES.

It makes sense that the SES wants to know when a team to which a task has been allocated has been completed.  It would want to know because it is poor customer service if a person rings back in 48 hours and asks ‘where are you?’ when the coordinating team thought the job was done.  Government agencies also want to keep statistics because it is important for accounting within the agency, for reporting to government on what they are doing and keeping the Minister informed and important for reporting to the public.  It is also important for planning to know at any given time what jobs are still outstanding.

It also makes sense to me that the local coordinating team would want to know from everyone, whether it’s an SES unit, an RFS brigade, a power supply authority etc when the jobs they have tasked them with are complete.  They could have SOP’s that say those agencies should report ‘job done’ but they have less interest than the SES has, so it makes sense that the SES may have a procedure that if the job hasn’t been reported as complete within a reasonable time frame, you may ring back to check its status.

There must also be times when the job is not an SES job.   Someone may ring 132 500 to report a power line down in a storm and the SES may ring the electricity supply authority to report that.  Is that really an ‘SES job’?  The relevant authority own the poles and wires and it’s their job to go and make it safe and restore power.  There’s nothing the SES is going to do to restore power if the power authority does not. R

I think the important thing to note, from the point of view of this blog, is there is no clear legal obligation to ring the agency that was tasked with the job to confirm that it is complete.  That the SES choses to implement a policy to that affect in order to be able to ‘close the loop’ and report another job well done, that is a matter for them and does make some sense.

Conclusion

If a job is referred to, and accepted by, another agency then it is up to the SES to confirm that the agency (FRNSW, RFS, or Councils) have done what they said they would do if that is the way the SES choses to manage its business.   As I said in my earlier post:

The Commissioner is ‘responsible for managing and controlling the activities of the State Emergency Service’ and ‘is to have overall control of operations in response to an emergency’ caused by flood, storm or tsunami (State Emergency Service Act 1989 (NSW) ss 11, 19 and 20).  If the Commissioner decides that he or she requires the SES to follow up on such tasks, as an exercise of his or her control over the service or to satisfy him or herself that the emergency operations are complete, then he or she can require that and a local controller would be required to give effect to that direction (s 17(3)).

To all the readers of this blog I wish you all a very Merry Christmas and Happy New Year.

To all the emergency service volunteers and staff, thank you for being giving up your family time for the benefit of the community. I hope you all get to spend some time with the family and that your time on duty is reasonably event free.

Best wishes from ‘Australian Emergency Law’.

Today’s question is: “Hi, how does this decision in the States compare to Australia?”  The decision in question is reported on the US website PoliceOne.com and is headed ‘Judge rules LEOs, schools had no duty to protect students during Parkland shooting’ (20 December 2018).  The gist of the story is “A federal judge has ruled that Broward schools and the sheriff’s office were not responsible for protecting students during the shooting at Marjory Stoneman Douglas High.”  U.S. District Judge Beth Bloom is quoted as saying:

Plaintiffs suggest that the essential nature of a public school’s role and control over its students requires that schools provide protection and safety for their students,” Bloom wrote. “However, the suggestion that school attendance equates to the level of custody implicating a constitutional obligation to protect has been expressly rejected by the Eleventh Circuit.

I would infer that this is some claim based on an argument that the school and police had some duty to protect the plaintiff’s right to life that is enshrined in the fifth amendment to the US Constitution – “No person shall be … deprived of life, liberty, or property, without due process of law…”  I cannot comment on the jurisprudence relating to the US Constitution so the best one can say, in answer to the question, is that Australia does not have an enshrined Bill of Rights to whatever constitutional argument is applicable in the US is not applicable here.

Were this action brought in Australia it would presumably be brought in negligence – arguing that the school and police had a duty to ‘provide protection and safety for their students’.   I think the result would be the same.

In Modbury Triangle Shopping Centre Pty Ltd v Anzil [2000] HCA 61 the High Court of Australia had to consider civil liability for the criminal conduct of a third party.  In that case (at [1]) Gleeson CJ (with whom Hayne J agreed) said:

The first respondent sued the appellant, in tort, for damages for personal injury. The injury was inflicted by three unknown men, one armed with a baseball bat, who criminally assaulted the first respondent in a car park. There is no suggestion that the appellant was vicariously responsible for the conduct of the attackers. The basis of liability is said to be that the appellant was the occupier of the car park; that, at the time of the attack, the car park lights were off; that, in the circumstances of the case, which will be set out in more detail below, the failure to leave the lights on was negligent; that the risk of harm of the kind suffered was foreseeable; and that the negligence was a cause of the harm.

He continued (at [19]):

The appellant had no control over the behaviour of the men who attacked the first respondent, and no knowledge or forewarning of what they planned to do. In fact, nothing is known about them even now. For all that appears, they might have been desperate to obtain money, or interested only in brutality. The inference that they would have been deterred by lighting in the car park is at least debatable. The men were not enticed to the car park by the appellant. They were strangers to the parties.

And at [29]-[30]:

The unpredictability of criminal behaviour is one of the reasons why, as a general rule, and in the absence of some special relationship, the law does not impose a duty to prevent harm to another from the criminal conduct of a third party, even if the risk of such harm is foreseeable.

There may be circumstances in which, not only is there a foreseeable risk of harm from criminal conduct by a third party, but, in addition, the criminal conduct is attended by such a high degree of foreseeability, and predictability, that it is possible to argue that the case would be taken out of the operation of the general principle and the law may impose a duty to take reasonable steps to prevent it. The possibility that knowledge of previous, preventable, criminal conduct, or of threats of such conduct, could arguably give rise to an exceptional duty, appears to have been suggested in Smith v Littlewoods Ltd. It also appears to be the basis upon which United States decisions relating to the liability of occupiers have proceeded.

Finally at [35]:

The most that can be said of the present case is that the risk of harm of the kind suffered by the first respondent was foreseeable in the sense that it was real and not far-fetched. The existence of such a risk is not sufficient to impose upon an occupier of land a duty to take reasonable care to prevent harm, to somebody lawfully upon the land, from the criminal behaviour of a third party who comes onto the land. To impose such a burden upon occupiers of land, in the absence of contract or some special relationship of the kind earlier mentioned, would be contrary to principle; a principle which is based upon considerations of practicality and fairness.

Gaudron J agreed.  She added (at [42]):

There are situations in which there is a duty of care to warn or take other positive steps to protect another against harm from third parties. Usually, a duty of care of that kind arises because of special vulnerability, on the one hand, and on the other, special knowledge, the assumption of a responsibility or a combination of both. Those situations aside, however, the law is, and in my view should be, slow to impose a duty of care on a person with respect to the actions of third parties over whom he or she has no control.

Kirby J (dissenting) took the view that there could be a duty to protect a person from the criminal actions of a third party.  At [76] he said:

This review of legal authority therefore demonstrates that neither in Australia nor in any other common law country examined have claims in negligence for damage consequent upon the criminal acts of a third party been excluded as a universal category or class. Such claims have been evaluated by the application to the facts of each case of the ordinary principles of negligence law.

He reviewed the facts and the decision of the Full Court below and concluded that their decision, in favour of the plaintiff should stand.

Hayne J agreed with Gleeson CJ but did add some further observations.  He said (at [110]):

In those cases where a duty to control the conduct of a third party has been held to exist, the party who owed the duty has had power to assert control over that third party. A gaoler may owe a prisoner a duty to take reasonable care to prevent assault by fellow prisoners. If that is so, it is because the gaoler can assert authority over those other prisoners. Similarly, a parent may be liable to another for the misconduct of a child because the parent is expected to be able to control the child.

Callinan J quoted from an earlier case, Smith v Leurs, at [139].  In that case Dixon J said;

But, apart from vicarious responsibility, one man may be responsible to another for the harm done to the latter by a third person; he may be responsible on the ground that the act of the third person could not have taken place but for his own fault or breach of duty. There is more than one description of duty the breach of which may produce this consequence. For instance, it may be a duty of care in reference to things involving special danger. It may even be a duty of care with reference to the control of actions or conduct of the third person. It is, however, exceptional to find in the law a duty to control another’s actions to prevent harm to strangers. The general rule is that one man is under no duty of controlling another man to prevent his doing damage to a third. There are, however, special relations which are the source of a duty of this nature. It appears now to be recognized that it is incumbent upon a parent who maintains control over a young child to take reasonable care so to exercise that control as to avoid conduct on his part exposing the person or property of others to unreasonable danger. Parental control, where it exists, must be exercised with due care to prevent the child inflicting intentional damage on others or causing damage by conduct involving unreasonable risk of injury to others.

With respect to the police there is a general immunity (though not universal) from civil action for the way police exercise their wide powers that they must exercise to meet multiple and conflicting demands. For a detailed discussion see Police liability for damage caused by high speed pursuit (March 22, 2018).

In my view there is another reason against imposing liability for the criminal conduct of third parties.  If a school is ‘liable’ in circumstances such as this (or if the Port Arthur Historic Site was liable for conduct of the offender who was responsible for the 1996 Port Arthur massacre) then it goes some way to ‘excusing’ the offender.  The person responsible for the deaths in all those cases is the person who had their finger on the trigger.

Discussion

Wikipedia tells us that:

On February 14, 2018, a gunman opened fire at Marjory Stoneman Douglas High School in Parkland, Florida, killing seventeen students and staff members and injuring seventeen others. Witnesses identified [a] nineteen-year-old former student … as the assailant…

The Modbury Triangle Shopping Centre Pty Ltd owed a duty of care to a person lawfully on the premises but that did not extend to a duty to protect an entrant onto the premises from unlawful activity from an unknown third party that the shopping centre had no control over.

A school is not like a shopping centre.  Students at a school are vulnerable and subject to control in the way a visitor to a shopping centre is not.  A school must owe a duty to take reasonable care to make the school safe for students, but that may not extend to a duty to protect them from unlawful actions from an unknown third person (including a former student).  There may be a duty to protect students from violence from other, current, students because of the control a school may attempt to exercise over the assailant and because of whatever prior knowledge they may have of that student.  A former student in the absence of threats or warnings is as much a stranger as anyone.

Even if there was a relevant duty, as Kirby J said (at [76]) the issue of liability is to be ‘evaluated by the application to the facts of each case of the ordinary principles of negligence law’.  In considering whether a defendant who owed a relevant duty has been negligent their response to the risk has to be considered.

In Wyong Shire v Shirt (1980) 146 CLR 40, Mason CJ said (at page 48):

… the reasonable man’s response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have.

Even if it is foreseeable that a stranger may come to a school and shoot students what is a school to do about it?  It goes almost without saying that the consequence of such action will be devastating but then one has to consider the question of how likely it is (and one can say, I think with confidence) that it is much more likely in the US than Australia).   So what can a school do to prevent it?  They can’t control the offender.  Security measures may make a school a ‘harder’ target but would conflict with other demands on schools: they are public institutions and many people have legitimate reasons to be there; students are not to be ‘imprisoned’ particularly senior students who are being educated to be responsible adults.  Even if the school is a ‘harder’ target, a mass shooting at a school is hardly a spontaneous or impetuous crime (particularly in Australia where getting access to guns is much harder than in the United States).

The question of a reasonable response is to be judged from the point of view of the defendant considering potential future risks when there are many risks and factors to be considered.  It is not retrospective so the question is not ‘what could have been done to prevent this offence (or harm)?’ but what would a person who does not know which risks or harms might occur do when scanning the risk horizon and consider what risks to address and how.  It’s probably impossible to stop shootings like this without turning schools into prisons like institutions. (I can say, having sent my children to UK primary schools that introduced significant security after the Dunblane massacre of 1996, sending children to high security primary schools is confronting.)

Finally it has to be remembered that Australia has universal health care so if this occurred in Australia the victims would have been treated by jurisdictional ambulance services, in public hospitals, and been provided with follow up care all at the public expense.  Further all states and territories have victims of crime compensation schemes (see Victims of Crime (Financial Assistance) Act 2016 (ACT): Victims Rights and Support Act 2013 (NSW); Victims of Crime Assistance Act (NT); Victims of Crime Assistance Act 2009 (Qld); Victims of Crime Act 2001 (SA); Victims of Crime Assistance Act 1976 (Tas); Victims of Crime Assistance Act 1996 (Vic) and Criminal Injuries Compensation Act 2003 (WA)).  These schemes would not be as generous as a common law claim but the payments do not require litigation or proof of fault.  What that means is that many of the victims’ needs would be met (or at least better met than I anticipate would be the case in the US) by the state without the need to litigate.

Conclusion

In the United States, U.S. District Judge Beth Bloom felt the issue in question had been determined ‘by the Eleventh Circuit’ and so the matter could be struck out.  I would expect that in Australia, given the state of authorities (of which I have only discussed one), a trial court would not necessarily dismiss the case without trial, but plaintiffs would face a very difficult trial.

It is my view that a school would not be under a duty to prevent the criminal conduct of a stranger set on causing harm.  There would be a duty to have generic emergency procedures and procedures to control entry to the school (there are lots of people, not just shooters, who shouldn’t be on school grounds) so there may be a question of whether whatever procedures were in place were a ‘reasonable response’ to the risk.  We don’t know anything about Marjory Stoneman Douglas High so one cannot comment on whether their security measures were ‘reasonable’.  I would suggest that the type of security in an Australian school would, reasonably, look very different to that in an American school.

My prediction is that if this occurred in Australia the matter may go to trial but I would predict firstly that no-one would actually seek to sue the school or police (given we don’t have the constitutional provisions of the US) and if they did, neither the school nor the police would be liable for damages.

There are constant reports of violence inflicted on first responders, and elsewhere I have reported on limits of mandatory sentencing as an effective response, given a person’s mental illness may mean they are not guilty of any offence – see Mandatory prison sentences – offering paramedics a placebo rather than protection (August 3, 2018).   Issues of responsibility and liability for assaults on first responders were highlighted in a recent civil case that came before the NSW Court of Appeal: Fede v Gray by his tutor New South Wales Trustee and Guardian [2018] NSWCA 316 (14 December 2018) (hereafter “Fede v Gray”).

Some legal background

Before getting to the facts it is helpful to give some legal background.  This was a civil action for damages. In a criminal case the case is brought by the Crown or the state.  The Crown must prove the case ‘beyond reasonable doubt’.  If successful the accused is convicted and the court hands down a sentence intended to punish the offender and bring home to him or her the wrongness of their action.

A civil action is brought by the injured person.  The plaintiff must prove the case ‘on the balance of probabilities’.  If successful the court orders compensation that, at least traditionally, was intended to put the injured person in the position that they would have been but for the wrong doing by the defendant.  It is relatively easy to put a money value on some things.  Expenses that the plaintiff has had to pay and income they have lost can be calculated. Future losses are harder to quantify but can still be given a money value.  Then there are non-economic losses, that is losses that cannot be given a real money value but there should be some compensation to recognise their impact. Non-economic losses are things like loss of enjoyment of life, if because of your injury you can’t play your favourite sport or do things you used to do that is a real loss.  Also pain and suffering, if you are going to be in pain for the rest of your life money cannot change that but may make it easier to find relief or something to take your mind off it.

In some rare cases there are exemplary damages.  In Fede v Gray McColl JA said at [151]-[152]:

Exemplary damages are an exceptional remedy, and are awarded rarely. There must be something more than a mere finding of fault. Rather, exemplary damages are awarded “as a punishment to the guilty, to deter from any such proceeding for the future, and as a proof of the detestation of the jury to the action itself.” They are awarded where a defendant engages in conduct “variously described as ‘wanton and malicious’, as ‘conscious wrongdoing in contumelious disregard of the plaintiff’s rights’, as ‘outrageous’, ‘atrocious’, ‘vindictive’, ‘arrogant’, ‘high handed’ or ‘insolent’.”

In considering whether to award exemplary damages “the first, if not the principal, focus of the inquiry is upon the wrongdoer, not upon the party who was wronged”.

Exemplary damages are not compensation; they represent a type of windfall to the plaintiff.

In the late 1990s there was a ‘moral panic’ over the state of compensation law.  To that end parliaments across Australia, led by NSW introduced legislation to limit who could claim compensation and the amount of compensation that could be awarded.  The Civil Liability Act 2002 (NSW) restricted compensation in many ways.  In particular it says that ‘No damages may be awarded for non-economic loss unless the severity of the non-economic loss is at least 15% of a most extreme case’ (s 16).  This is a complex formula that I won’t attempt to explain but will be relevant later.  Suffice to say the provision is designed to stop people getting compensation for what are described, often incorrectly, as ‘minor injuries’.

The Parliament however did say those restrictions don’t apply in all cases.  The restrictions set out in the Act do not apply where the plaintiff is claiming damages for, amongst other things, ‘an intentional act that is done by the person with intent to cause injury or death’ (Civil Liability Act 2002 (NSW) s 3B(1)(a)).  In that case the defendant is liable to pay all the damages assessed under common law (ie judge made law that has developed over time) and not on the more restricted basis that is used when the Act applies.

The final preliminary point to make is that this was an action in battery.  Battery is any unlawful touching.  In Collins v Wilcock [1984] 1 WLR 1172 at 1177, Goff LJ said:

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

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

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

Battery is described as an ‘intentional tort’ but that does not mean that the person has to intend harm or even to intend to make physical contact.  Their movement has to be intentional and if they intend to touch the other person or are negligent or reckless about coming into contact, then that is a battery.  It is the action that must be voluntary or intentional, not the physical contact or the consequence (Fede v Gray [108]-[112]).  At [186]:

It follows that a person will not commit a battery if he or she makes contact with another person while sleepwalking or suffering convulsions in the course of an epileptic fit.

What happened

With that background in mind we can now turn to the facts of Fede v Gray.

Sergeant Fede was a police sergeant stationed at Gulargambone Police Station in western New South Wales. On the evening of 8 September 2014 and into the early morning on 9 September 2014, she and other officers detained Mr Gray pursuant to s 22 of the Mental Health Act 2007 (NSW).  That section says:

A police officer who, in any place, finds a person who appears to be mentally ill or mentally disturbed may apprehend the person and take the person to a declared mental health facility if the officer believes on reasonable grounds that:

(a) the person is committing or has recently committed an offence or that the person has recently attempted to kill himself or herself or that it is probable that the person will attempt to kill himself or herself or any other person or attempt to cause serious physical harm to himself or herself or any other person, and

(b) it would be beneficial to the person’s welfare to be dealt with in accordance with this Act, rather than otherwise in accordance with law.

Mr Gray was transported to Gilgandra hospital and assessed by doctors there and by specialists from Dubbo, via videolink.  What happened is described in the judgement at [16]-[19]:

At about 2am, Mr Gray was observed to be muttering under his breath and his behaviour had deteriorated. He was assessed as being “violent and in need of immediate assessment”. It was at this stage that Mr Gray was informed by Dr Kearney that he was to be kept for further observations and asked to take some sedatives to relax.

Mr Gray then ran towards the closed smoke doors of the Accident and Emergency (A&E) department. Three police officers tackled him and a struggle ensued on the floor. Ms Fede sought to assist one of the officers handcuff him by holding Mr Gray down. She released him when she was told he had been “cuffed” at which stage he lunged forward and bit her on her right inner thigh.

The incident

The finer detail of the incident appeared in Ms Fede’s police statement which the primary judge reproduced as follows:

“The accused pushed past me and headed towards Senior Constable Hodges who again check drilled the accused. The accused yelled out ‘Hurry up you cunts. You can’t keep me here you white dog cunts. Hurry up’. The accused immediately calmed down after that.

At 2am Gilgandra Police arrived. I informed the doctor that back up had arrived and I returned to A&E.

Dr. Kearney attended A&E and approached the accused. He informed the accused that they would keep him there for further observations and asked the accused to take some sedatives to relax. The accused started yelling something similar to ‘You can’t keep me here. You’re all trying to kill me. I’m not taking nothing. You cunts are trying to kill me’.

The accused started to sun [sic, run] towards the closed smoke doors of A&E. As I was standing near the doors the accused ran towards me shoulder charged me into the wall. I was winded.

I turned and looked to the left in the main hallway of the hospital and I saw Sgt BRISBANE, Senior Constables BAILEY & HODGES tackle the accused and were struggling with the accused on the ground [sic, as in original]. The accused was face down on the ground. I pulled my handcuffs out of the pouch and I noticed that Senior Constable Hodges and Sergeant Brisbane were attempting to cuff the accused [sic] right wrist. The accused was attempting to break free of their hold. He was struggling with his whole body. Senior Constable Hodges was lying on the accused [sic] legs. Sgt Brisbane was at the accused [sic] waist/shoulder area, Senior Constable Bailey was on the left side of the accused trying to pull out his left arm. The accused was struggling trying to break free. He was thrashing his head and shoulders around. He was yelling out ‘They’re trying to kill me. The cunts are trying to kill me.’

I went to the upper body area of the accused. I noticed that Senior Console Bailey was trying to pull the accused [sic] arm back. I held the accused down just below the neck area with my right arm to assist in controlling the accused so that he could be cuffed.

I heard Sergeant Brisbane call out ‘He’s cuffed.’ I released my hold on the accused and knelt back. I saw the accused lunge forward toward my leg and I felt a sudden sharp pain on my right inner thigh. I elbowed the accused in the neck area and I held it there until I could move my leg. I heard material ripping as I freed my leg. I called out ‘He fucking bit me.’ I eased my hold on the accused when I heard Senior Constable Bailey call out ‘He’s biting me.’ I again elbowed the accused at the bottom of the neck and I held my elbow there until the doctor had given him the sedative. We held him there for a few moments until the accused stopped struggling. I got up and moved away from the accused when he started to struggle again and was attempting to kick out with his legs. The accused was screaming really loudly.”

Mr Gray’s legs were then handcuffed. Ms Fede noticed blood on her cargo pants where Mr Gray had bitten her. When she examined her leg in the bathroom, she was bleeding from the bite. On examination, it was apparent that Mr Gray had bitten a large piece of flesh from her thigh, leaving a wound approximately 1.5 centimetres in diameter.

As a result of his conduct, Mr Gray was charged with several offences ‘including assault and resist police officers in the execution of their duty, and was sentenced to three months’ imprisonment. He wrote a “letter of contrition” to the victims, including Ms Fede, admitting that he was on drugs at the time of his actions.’

Sergeant Fede then brought a civil action seeking compensation.  She argued that Mr Gray’s conduct was ‘an intentional act … done … with intent to cause injury’ and so her damages should be assessed in accordance with the common law, not the Civil Liability Act 2002 (NSW).  Further, she argued, at [87]-[88]:

… that the circumstances in which she was injured warranted a substantial award of exemplary damages as she was the subject of a serious assault and battery, which saw her shoulder-charged into a wall by a man weighing 125kg, whose mental state was the result of self-induced intoxication with illicit drugs. She also argues that having regard to the purpose of exemplary damages, principle called for their deployment in a case such as this, where a drug-affected person viciously assaulted frontline emergency services personnel in the course of discharging their duty. She contends there was evidence of a long history of serious aggression, including physical aggression, on Mr Gray’s part (including after the incident on 9 September 2014) such as called for punishment, as well as specific and general deterrence.

The trial in the District Court

The case was heard in the District Court of NSW before Acting District Court Judge Sorby (Sorby ADCJ).   At [166] Basten JA said:

On 15 December 2017 the trial judge (Sorby ADCJ) dismissed the claim and gave judgment for the defendant. He concluded that, at the time of the injury, the defendant was in a delusional and paranoid state and unable to form the necessary intent to harm or injure Ms Fede. He concluded that Mr Gray was “not acting either intentionally or negligently”, because he was suffering from a mental illness at the time of the incident.

Even though the judge found in favour of the defendant, Gray, he went on to assess the damages that he would have awarded had he found in favour of the plaintiff.  (This is not unusual, judges do that to give respect to the various submissions made and so, if there is an appeal on the question of who is liable, the value of the case has already been decided).  Sorby DCJ would have found that s 3B of the Civil Liability Act 2002 (NSW) did apply so that the damages were to be awarded based on the common law, not the scheme under the Act.   At [68] McColl JA said:

Had Ms Fede’s claim been successful, the primary judge would have awarded her for general damages, $20,000 for the bite wound and her concern about the possible transmission of hepatitis C; for economic loss, $10,000 as a general buffer for any time she may have be off work directly as a result of her bite injury and sequelae; and out-of-pocket expenses, $5000. His Honour would have rejected her claims for aggravated and exemplary damages.

The appeal

Everyone appealed. Ms Fede appealed arguing that Sorby DCJ was wrong to find that Mr Gray’s mental illness meant that he did not act ‘intentionally’ as required by the law of battery and that he, the trial judge, was wrong not to order exemplary damages. Mr Gray appealed on the basis that if Ms Fede did win, the judge was wrong to find that damages were to be assessed based on the common law, not the Civil Liability Act 2002 (NSW) and further, that the award of ‘$10,000 as a general buffer’ was not supported by the evidence.    On appeal everyone won – the court of Appeal (McColl JA and Basten JA with whom Meagher JA agreed) found that there should be a verdict for Ms Fede but that the Civil Liability Act 2002 (NSW) did apply to the assessment of those damages.  The result was a verdict for Ms Fede for $5000 damages.

McColl JA

The court went back to 1616 for relevant legal authority. In Weaver v Ward (1616) Hob 134; 80 ER 284 (quoted at [104]) the court said:

… if a lunatick hurt a man, he shall be answerable in trespass: and therefore no man shall be excused of a trespass … except it may be judged utterly without his fault.

Mr Gray’s decision to bit Ms Fede was intentional.  He may have been delusional (or at least misinformed) in his belief that the police were trying to kill him but his action was (at [50]) ‘… goal-directed behaviour prior to his containment at GHS and that him biting Ms Fede was intentional to him achieving the goal of not being detained.’

The trial judge’s view that Mr Gray ‘was not acting either intentionally or negligently’ was not supported by the expert evidence.   The medical experts called by both sides agreed that Mr Gray was mentally ill but they also largely agreed that his action was voluntary ie he intended to bite her.  At [137] McColl J said:

In my view, taken as a whole, Dr Larder’s evidence supported Dr Jungfer’s in the critical respect that Mr Gray’s conduct in biting Ms Fede was voluntary, that is to say, directed by his conscious mind. Once Mr Gray’s act was voluntary in that sense, and he “meant to … contact the plaintiff”, his conduct was relevantly intentional.

Because it was a voluntary action it was a battery and Ms Fede’s ‘cause of action’ was established.  The question of damages then arose.  Remember that the Civil Liability Act 2002  (NSW) s 3B(1)(a) says that the Act does not apply if the defendant’s act was ‘an intentional act that is done … with intent to cause injury or death’.   The trial judge found that Mr Gray’s conduct fell within s 3B so Ms Fede was entitled to damages assessed according to the more generous common law.  McColl JA (at [138]) agreed.  She said:

I would also be satisfied that Mr Gray’s act was done “with intent to cause injury”. Such was, in my view, the inevitable consequence of his deliberate act in biting her, albeit through her trousers, but with such force as to tear her flesh.

McColl JA would also have found Mr Gray liable on the basis that his conduct was not ‘utterly without his fault’ because (at [141] ‘it was apparent that the psychotic state was drug induced’.

With respect to exemplary damages, McColl JA agreed that they were not appropriate in this case.    She set out the purpose of exemplary damages at [152]-[153] and these have been quoted in the ‘legal background’ section above.  She went on to say:

Exemplary damages may not be awarded where the criminal law has been brought to bear upon the wrongdoer and substantial punishment inflicted. A term of imprisonment would seem always to be regarded as “substantial” for these purposes.  She said [156]-[157]:

In my view Mr Gray’s conduct, while clearly very distressing for Ms Fede, cannot be described as being within the categories to which I have referred which would warrant an award of exemplary damages. When one focuses on Mr Gray, the consensus is that his behaviour was part of a flight response to the advice that he was to be detained against his will and injected with medication. As Dr Jungfer put it, it was a response to him realising he was being deprived of his civil liberties. Extreme, and conscious, as his behaviour was in biting Ms Fede’s leg, it was part of his spontaneous reaction of trying to escape that situation. While it was conduct of which one could not approve, I would not characterise it as “conscious wrongdoing in contumelious disregard of [Ms Fede’s] rights”. On that basis, I would not be of the view that this should be one of the rare cases in which exemplary damages should be awarded.

I am also of the view that the court “may not” award exemplary damages because the criminal law has been brought to bear upon Mr Gray and substantial punishment inflicted.

With respect to Mr Grey’s appeal against the award of a $10 000 buffer, McColl JA said (at [161]) ‘A “buffer or cushion award is usually reserved to the situation where there is a smallish risk that otherwise secure employment prospects may come to an end, in consequence of the tort-related injury, at some distant time in the future”.’  Even so there has to be some evidence to support the claim and there was none.  Accordingly, Her Honour would have upheld the cross appeal.

In McColl JA’s opinion the correct result would have been to find that Mr Gray was liable for battery and award damages of $25,000 being general damages for non-economic losses of $20 000 and $5000 for out of pocket expenses.

Basten JA (with whom Meagher JA agreed)

Basten JA said (at [185]) that the essential elements of battery”

… included the following: (i) the act of the defendant must involve physical contact with the plaintiff; (ii) the act must be voluntary, that is, directed by the defendant’s conscious mind; (iii) the defendant need not intend the plaintiff any harm; (iv) if the act is voluntary, and the defendant “meant to do it” in the sense of meaning to contact the plaintiff, it will be relevantly intentional; (v) “it may be” that an act should also be considered intentional if it is “substantially certain that the act will result in contact with the plaintiff”; and perhaps also if the act is “reckless with respect to contact with the plaintiff”.

With respect to Mr Gray’s decision to bite Ms Fede he said (at [198]):

In the context of the present case, the language of intention is satisfied by a conclusion that the general intention to bite was not involuntary. It may have been motivated by the delusion that Mr Gray thought himself in physical danger if he remained in the hospital, and was seeking to escape. That delusion did not, however, render his biting either involuntary or in the nature of an inevitable accident.

Accordingly, the trial judge was wrong to find that Mr Gray’s mental illness meant he did not have the necessary intent or capacity to act voluntarily.  He upheld Ms Fede’s appeal such that Mr Gray was liable for battery.

With respect to the Civil Liability Act, ‘the [trial] judge found that the defendant did not understand the nature or quality of his act, he concluded that the defendant did not “intentionally cause injury to the plaintiff.” There being no basis to reject that finding, the second limb of s 3B(1)(a) was not satisfied and the assessment of damages should therefore have been governed by Pt 2 of the Civil Liability Act’ ([206]).

Where the Civil Liability Act applies damages for non-economic losses can only be awarded where the plaintiff’s losses were (at [207]):

…at least 15% of a most extreme case. There was no finding to that effect, nor was the basis for such a finding apparent in the circumstances revealed by the plaintiff’s evidence or her medical evidence. Accordingly, pursuant to s 16 of the Civil Liability Act, no amount should have been allowed for non-economic loss.

Basten JA agreed with McColl JA in finding that the claim for a $10 000 buffer had not been established by evidence and further, that this was not a suitable case for exemplary damages.

The result was a verdict for Ms Fede with an award of only $5000 damages.  The claims for non-economic losses, a buffer for future economic losses and exemplary damages were all rejected.

Discussion

This case may bring some comfort for first responders.  Mr Gray’s mental state was not a defence to an action in battery. He decided to bit Sergeant Fede. Why he did that was not relevant to the question of intention.  It was a deliberate use of force and that is a battery.

(It should be noted, but it did not arise in this case, that an offender’s mental state may be relevant if they want to argue self-defence, that is that they ‘believed upon reasonable grounds that it was necessary in self-defence to do what he did’ (Zecevic v DPP [1987] HCA 26).   That is a subjective test so is their belief, even if delusional, that will be relevant.  Self-defence could not arise in this case as Mr Gray had entered a plea of guilty to the various criminal charges so by that plea had admitted it was not self-defence.)

It may mean that first responders subject to an assault may have the option to bring a civil claim, but one does have to wonder if it is worth it.  If the person has received workers compensation, they would have to repay amounts claimed under that scheme so the money paid may end up going to an insurer, not the injured person. Second it is only worth suing someone who has the assets to pay.  We don’t know Mr Gray’s circumstances, but we do know that he was represented by his guardian the New South Wales Trustee and Guardian which means he is not able to manage his affairs.  Being mentally ill does not mean being impoverished so it may be that he had assets that could be used to pay the damages bill, but often that will not be the case.

The case also demonstrates the principles of the rule of and the image of justice as blind and holding the scales.  The conduct of Mr Gray ‘was conduct of which one could not approve’ ([156]) but that does not make him an ‘outlaw’.   Sergeant Fede had to prove her claims on evidence so the claim for a $10 000 buffer was not made out.  The Civil Liability Act 2002 is intended to reduce the value of civil claims and to limit damages not just to cases that are considered undeserving in the court of public opinion.  The application of s 3B was arguable here but by a 2:1 majority the Court of Appeal held that it did not apply so damages were limited as required by the Parliament.

Conclusion

Bringing a civil claim for battery may be an option for first responders subject to occupational violence but it is not necessarily an easy or worthwhile process.

 

It is well established the employer’s duty of care to employees includes an obligation to take all reasonable steps to provide a safe system of work and an obligation to take reasonable care to avoid psychiatric injury.

It is not in issue that [the Queensland Ambulance Service] QAS owed Mr James such a duty.  The determinative issue in the case are not whether QAS owed Mr James a duty to take reasonable care to avoid psychiatric injury to him but whether it breached that duty of care.

So said Justice Henry in James v State of Queensland [2018] QSC 188, [10]-[11] (10 December 2018).  One way to avoid risk of psychiatric injury would be to avoid exposing staff to traumatic events, but that is not possible if you are operating an ambulance service.  As Henry J continued (at [133]):

It is inherent in the paramedic’s role of providing emergency medical assistance to the public that the paramedic will encounter traumatic and stressful events with consequent risk of psychiatric injury.

The issue is (or was) what does the reasonable employer do to assist the paramedic to deal with the compounding trauma from the exposure that is inherent in their work.

Mr James was a paramedic based at Mt Isa who worked shifts at Doomadgee (which is, according to Google maps, 612kms north of Mt Isa; 2198km north-west of Brisbane or 1833km south-east of Darwin).  Whilst at Doomadgee Mr James attended three horrific incidents, one involving a young boy who was mauled to death by dogs and two involving the sexual assault of young girls, one of whom was a similar age to his own daughter.  Between the second and third of these events Mr James was attending Mt Isa where he ‘reacted badly to being publicly corrected during training’ ([5]).   These events all occurred between 30 September 2004 and 13 November 2004. (The judgement, at [5], says the last two events were in 2014 but that must be an error).  Mr James left QAS on 23 November 2004 and was unable to work for the next 10 years.

In 2008 Mr James lodged a common law claim alleging that the QAS had been negligent in its response to the traumatic events that he had been exposed to and that, given his behaviour at the Mt Isa training, the QAS should have been aware that he was suffering from mental ill health and taken further steps to support him and provide treatment.  Although the claim was lodged in 2008 ‘the plaintiff [Mr James] did not press for the trial to be heard until recently, well over a decade after the events’ ([1], note 1).   The case was heard between April and August 2018 and judgement delivered on 10 December 2018.

QAS recognised the risk to paramedics in 2004.  They had introduced a scheme to assist paramedics affected by their work.  At [9]:

Priority One involved four core support services, namely:

1. peer support by peer supporters,
2. self-referral counselling,
3. a telephone counselling service, and
4. critical incident stress debriefing (“CISD”).

When the case came to be resolved there were three issues for the court to consider.  They were (at [15]):

• the adequacy of Priority One,
• the alleged failure to activate CISD, and
• the alleged failure to respond to the training incident as signalling a need for intervention.

Mr James did not allege that if QAS had a more effective support scheme and/or implemented a CISD he would not have had adverse effects from the exposure to the three clinical events, but that the alleged negligence by QAS ‘caused him to suffer a more severe and prolonged psychiatric injury than would otherwise have occurred’ ([16]).

The adequacy of Priority One

After the first event Mr James gave evidence of multiple attempts to contact the Peer Support Officer that were unanswered.  He also gave evidence of other attempts to engage with the Priority One system that did not work out.  The problem for him was that his evidence was contradicted by others, by file notes made at the time and by statements made by Mr James to WorkCover and to investigator’s looking into complaints that he had made about the conduct of other officers following the incident at the Mt Isa training.

In response to the claims QAS provided details of the Priority One scheme and the training that had been provided to QAS officers both on how to recognise symptoms of mental ill health and how to access the confidential support services provided.  The key issue was that it was up to paramedics to make contact with the peer support officers, the telephone service or the counselling service and they could do so without knowledge of and with no report to QAS.  The only time officers might have been asked to attend debriefing was if a CISD was called, but CISD was (at [9]):

… applied to groups. That is, while all four services were calculated at assisting staff in dealing with clinical incident stress, it was only CISD which was calculated at providing such assistance to multiple persons when together as a group.

It followed ([141]) that there were ‘… systems and policies for provision of peer support and professional counselling to paramedics in isolated stations’.  Further there was ‘no substance to the general allegation Priority One was not an adequate and sufficient response to the risk of psychiatric injury’.  The crucial claim that Mr James had to make was that the QAS should have taken more action to ensure that Mr James took advantage of the services offered ([142]-[143]).  The system adopted by QAS was however ‘A system respectful of individual autonomy’ [144].  That is it was up to the paramedics to determine if they needed or wanted assistance and to make contact with the Priority One service. One might think that it is unreasonable to leave it to the paramedics, but equally people don’t want to be hounded or pressured to seek care.  At [146]-[149] Henry J said:

The recommendation that staff should “seek help” if experiencing such feelings is consistent with the underpinning philosophy of Priority One that to preserve staff control over their own destiny, it informs and empowers staff about when and how to seek assistance so that staff control the seeking of assistance rather than assistance being imposed upon them.  In a similar vein, the code of conduct for PSOs [Peer Support Officers] stipulates in its code of ethics that PSOs should “respect an individual’s autonomy and ability to make decisions for themselves”.

So it was that, rather than mandatorily imposing psychological assistance upon its individual employees, QAS educated its employees in understanding and recognising signs of critical incident stress, equipping them with the knowledge necessary to be aware of its potential effects upon them and the means of seeking assistance to cope with those effects.

The notion inherent in Mr James’ case, that the QAS should not have left it to him to make the choice to request assistance and was instead obliged to “ensure” he received assistance, fails to give due deference to the autonomy of the individual.  The employer’s obligation is to take reasonable care, not invasive or dictatorial care.

The importance of individual dignity and privacy in this context was explained by Keane JA as he then was in Hegarty v QAS, a case also involving Priority One. His Honour observed:

“The area of debate in the present case concerned the extent to which the defendant was duty-bound to ensure that its superior officers should intervene with individual ambulance officers in relation to possible signs of deterioration in their mental health.  The private and personal nature of psychological illness, and the consequential difficulties which attend the discharge of an employer’s duty in this respect, must be acknowledged as important considerations.  The dignity of employees and their entitlement to be free of harassment and intimidation, are also relevant to the content of the duty asserted by the plaintiff. …

In cases of apprehended psychiatric injury, unlike cases concerned with amelioration of physical risks in the workplace, important values of human dignity, autonomy and privacy are involved in the formulation of a reasonable system of identification of psychiatric problems which may warrant an employer’s intervention and the making of a decision to intervene.  An employee may not welcome an intrusion by a supervisor which suggests that the employee is manifesting signs of psychiatric problems to the extent that help should be sought… .

Employees may well regard such an intrusion as an invasion of privacy.  Employees may rightly regard such an intrusion as a gross impertinence by a fellow employee, even one who is in a supervisory position.”

Further QAS had tried a process of mandatory intervention and had found (at [153]) that it did not improve outcomes, was unappreciated by operational staff and:

…more damage was being done to the already well established level of goodwill built up by PSOs by persisting with what was perceived to be, and was variously described as the “unnecessary and intrusive” pursuit of ambulance personnel following attendance at cases.

Mr James faced great difficulty arguing that QAS should have ‘ensured’ that he sought assistance when QAS had previously tried that and determined, based on evidence, that this was counter-productive.

The trial effectively confirmed the merit of Priority One’s systemic respect for individual autonomy and the right of individuals to decide for themselves whether to use the assistance made available…

The alleged failure to activate CISD

The CISD process was intended to apply when a group of officers had been involved in a traumatic event.  It was not a process for one-on-one debriefing and there was therefore no negligence in not implementing in circumstances it was not designed for ([156]-[181]).

The alleged failure to respond to the training incident as signalling a need for intervention

MR James had walked out of a training session and used abusive language about the trainers and his colleagues. He argued that QAS should have understood that his ‘behaviour was so aberrant or unusual that it should have been realised he needed to be provided with psychological support and not sent back to Doomadgee’ ([182]).  Henry J said ([183]-[187]):

The unstated premise of the alternate case is that what occurred was not explicable in the normal course of events.  However, it was explicable in the normal course.

The evidence surrounding the episode has already been analysed at length.  It shows Mr James was not keen to participate in the training, raising issues about venue and the inconvenience caused to Ms Barr.  More significantly Mr James was ill-prepared for the training.  Mr Shepherd noticed Mr James did not seem to have done the background study.  Mr James told persons at the training he feared he was not going to pass.  Then, not only did he make an elementary auscultation error, he was also corrected indelicately about it in front of others.

These were all considerations which readily explained why Mr James suddenly left the training, using abusive language once downstairs and departing.  They were all considerations connected directly to the training.

Further, there is no evidence suggesting that in the aftermath of the training episode Mr James made any link between his behaviour at the training incident and the first and second incidents.  He clearly regarded it as an industrial issue relating to how he had been treated in respect of the training.

When there existed such obvious collective and connected reasons for Mr James’ outburst of bad behaviour at the training episode why would the employer have looked beyond them for some other less obvious explanation for his conduct?  Mr James’ behaviour was explicable in the normal course.  It may have been bad behaviour but it appeared to have arisen as an obvious result of his issues regarding the training.  His behaviour was not such as to, as Mr James contends, “raise a red flag” indicating to QAS that he needed some form of debriefing or other psychological support.  The supposed failure to respond to it as a sign there was a need to intervene and provide such support was not a breach of QAS’s duty of care.

Mr James was provided with offers of support

The problem for Mr James’ was that he was provided with offers of support.  Despite his claims that he had tried to contact peer support officers without success the evidence was that there had been contact with his peer support officers after each incident.  His Doomadgee colleague approached him, a local peer support officer made contact and in response to queries about how he was travelling he answered (generically) ‘Yep, it’s OK.  I’m right, mate.  It’s good.”, or words to that effect’ ([32]).  Offers were made to bring him back from Doomadgee and to contact the Priority One counsellors on his behalf ([44]) but these were all declined.  He also spoke to clinical officers and colleagues, but each time affirmed that he was ‘ok’.

With respect to the training incident a number of documents were produced to deal with what was, in effect, a breach of discipline. At [84] Henry J said (emphasis added):

None of the above materials, including those generated by Mr James, contained any reference to the first or second incidents at Doomadgee, let alone identified their potential connection with Mr James psychological state or his conduct in and after the training incident.  Nor did they allude to him not feeling right in the head at training.  Mr James claimed that was because they were about the training not how he felt, however some of the documents did touch upon Mr James’ feelings regarding what occurred at the training episode and its aftermath.  These are significant matters.  If Mr James was not making any link between the training episode and the first and second incidents it is hardly surprising his employer made no such link.

There was further evidence of contact with colleagues and peer support officers.  After the third incident (at [104]):

On [the PSOs] account, [Mr James] told her that he “wasn’t in a very good way”. Her impression was that he “wasn’t travelling very well at all”. She testified that she asked him to seek assistance with Priority One and the counsellors and offered again to make appointments for him, but he declined, explaining he would be home in a few days.  She testified she also asked him if he wanted her to arrange with the managers to have him relieved to come home, but he declined. Mr James could not recall speaking to her about the possibility of arranging relief to come home.

Discussion

I have discussed elsewhere in this blog the value the law places on personal autonomy and the right of people to make their own decisions regarding health care, including mental health care (see for example Victorian decision on refusing medical treatment – reviewing the principles (November 24, 2018)).

It is well known that people in the emergency services are exposed to experiences that most us would only imagine in our worst nightmares, but even so they retain the right to autonomy.  More so responders are likely to see intrusive demands that they seek care as challenging their sense of resilience and worth.   The report on the QAS trial of mandatory intervention said (at [154], emphasis added):

“The frequency of follow-up and the perceived if not implied message embedded in the frequency of follow-up was beginning to have a reverse effect.  Rather than projecting a “caring and supportive” message the implication was “personnel may not or would not cope with the event”.

This goes to the core of key features of contemporary understanding of coping mechanisms within emergency services personnel.  In particular individuals intuitively select into this occupational setting and have a robustness or resilience about their perceived capacity to cope.  Research by Shakespeare-Finch (2002) found that paramedics recognised that whilst an event may be objectively distressing and unpleasant they are able to simultaneously articulate positive benefits to them; positive benefits of their involvement with the event which offset the distress.  Also of importance in this matter are findings by Orner (2000) suggesting that ambulance personnel “know” when assistance is required and are able to identify and access assistance when appropriate for them.

There are some instances in which proactive support can and should be offered and which is greatly appreciated by ambulance personnel, specifically in the event of the death or injury of a work colleague.  However the assumption that follow-up should occur on a case by case basis when it is “thought to be” distressing is unnecessary and often unacceptable, and indeed appears to diminish the benefits of having a sensitive responsive support program which promotes resilience.

See also Negligence claims relating to PTSD (May 14, 2018).

The problem for Mr James was that so long after the event people’s recollections vary and more importantly people retell the story in their own minds to better reflect their perceptions.  Mr James’ story that he was not offered support was contradicted by the evidence of everyone else involved.  He was offered support but declined to accept it.  One can imagine the cultural environment where it is perceived as unacceptable to respond to the question ‘R U OK?’ with ‘no I’m not’ but if you do not answer honestly you cannot expect people, including colleagues and employers, to disregard your claim and treat you as if you are not OK when you say you are.

Respecting a person’s autonomy also means that the person has to accept responsibility for the choices they make. Mr James had support options but chose not to use them.  Both respect for autonomy as well as theory and evidence said that allowing him to make his own choices would have a better outcome.  And one can imagine claims of uncaring bullying if a paramedic was constantly being urged or required to undertake counselling or taken off the road because a supervisor thought he or she was not coping despite their protest that they are.

Conclusion

In finding that there had been no breach of the duty of care owed by QAS to its employed paramedic, Henry J described (at [2]) Mr James’ case as:

… an exercise in hindsight identification of a means by which his injury might have been avoided by an all-knowing and intrusive employer.  It fails to acknowledge his employer did take reasonable care, conscientiously educating him about signs of adverse reaction to traumatic events and providing a system of support which respected his autonomy and was a reasonable response to the risk of injury from exposure to such events.

Today’s correspondent is an

… enthusiastic motorcycle rider based in the Sydney area.  Over the past few months I have found myself face-to-face with emergency vehicles driving on the wrong side of the road. I have seen this happen quite a few times over the years and recognise that emergency vehicles responding with lights and sirens will cross to the wrong side of the road to by-pass traffic congestion.

I have had the misfortune to have had a couple of very near misses with emergency vehicles driving in this manner where the drivers very obviously did not see me before they crossed to the wrong side of the road. In the first instance, a fire truck drove over a central reservation and missed me by less than a metre and the second instance an ambulance turned a corner directly in to my path.

Is there a specific a law which allows the emergency vehicles to drive in this manner? If there is a collision between a civilian motorist driving legally on the correct side of the road and an emergency vehicle with lights and sirens, where is the liability? Is it the fault of the civilian motorist for not yielding to the emergency vehicle?

This question revisits a number of matters that are frequently discussed here, but there’s no harm in returning to them for the benefit of new readers and because rules do change.  I’m not given a jurisdiction but given we have national road rules, the jurisdiction doesn’t matter.  I’ll use the Road Rules 2014 (NSW) as my reference.

The relevant rules are rr 78, 79 and 306.  They say, respectively:

78 KEEPING CLEAR OF POLICE AND EMERGENCY VEHICLES

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

Maximum penalty: 20 penalty units.

(2) If a driver is in the path of an approaching police or emergency vehicle that is displaying a flashing blue or red light (whether or not it is also displaying other lights) or sounding an alarm, the driver must move out of the path of the vehicle as soon as the driver can do so safely.

Maximum penalty: 20 penalty units.

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

79 GIVING WAY TO POLICE AND EMERGENCY VEHICLES

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

Maximum penalty: 20 penalty units.

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

306 EXEMPTION FOR DRIVERS OF EMERGENCY VEHICLES

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

(a) in the circumstances:

(i) the driver is taking reasonable care, and

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

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

The obligation to ‘keep left’ is found in the Road Rules – rr 129-139 so r 306 is applicable.

To then turn to my correspondent’s questions:

Q. Is there a specific a law which allows the emergency vehicles to drive in this manner?

A. Yes, the specific law is r 306 of the Australian Road Rules, in NSW that’s r 306 in the Road Rules 2014 (NSW). That law does not allow the driver of an emergency vehicle to drive in a manner that is dangerous but it does allow them to drive on the wrong side of the road provided they are responding to an emergency (see Court of Appeal dismisses appeal by RFS tanker driver involved in fatal collision (October 13, 2017)), they are taking reasonable care and that the decision is reasonable in the circumstances.

Q. If there is a collision between a civilian motorist driving legally on the correct side of the road and an emergency vehicle with lights and sirens, where is the liability? Is it the fault of the civilian motorist for not yielding to the emergency vehicle?

A. There is no simple answer to that. In terms of civil liability courts apportion it – how much was each drivers’ fault. In South Australian Ambulance Transport Inc. v Wahlheim [1948] HCA 12 Latham CJ was considering the obligation to give way to vehicles on the right.  Fire brigade and ambulance vehicles were exempt from the rule (just as they are today).  Latham CJ said:

… the exemption of ambulances from the application of the section, while it prevents any prosecution of the driver of an ambulance for failing to comply with the section, does not entitle an ambulance to drive ahead regardless of other traffic. A duty of care exists in the case of exempt vehicles as well as in the case of ordinary vehicles, though the standard is not the same in each case. The driver of an exempt vehicle must be taken to know that drivers on his right will expect to be given the right of way and will not be as prepared to stop as in the case of drivers with traffic on their right. The driver of an ambulance must drive upon the assumption that other people will observe the rules of the road; that they will accordingly look out to their right (s. 131) and that they will expect to be given the right of way by vehicles on their left. Thus the fact that s. 131 does not apply to ambulances does not relieve the defendant of liability for negligence if in all the circumstances there was a failure to exercise due care.

That is consistent with the obligations on the driver of an emergency vehicle to take reasonable care knowing that others won’t expect to see a vehicle on the incorrect side of the road.

On the other hand, drivers of other vehicles are expected to give way to emergency vehicles.  In another South Australian case, Hine v O’Conner [1951] SASR 1 Abbot J said (at pp. 4-5):

He [the bus driver] was not, however, entitled to consider himself as having “an open road” across that intersection because a “Stop Sign” is not always obeyed by drivers of vehicles … And, of course O’Connor is presumed to know the law that fie-engines on their way to a fire, as well as other specified vehicles, are exempt from the duty of obeying such “Stop Signs”.

Equally drivers may know that there may be many hazards on their side of their road, including on-coming emergency vehicles.

A court will look at all the circumstances to apportion liability between the drivers:  Who could see what? Who should have seen what?  How much care was each driver taking? The driver of an emergency vehicle knows that they are on the wrong side of the road, but other drivers’ have to keep a lookout for emergency vehicles? What were the ambient conditions? Etc.  Whilst the apportionment will vary with each case, we can say with a great deal of confidence that if ‘there is a collision between a civilian motorist driving legally on the correct side of the road and an emergency vehicle with lights and sirens’ then both drivers will be held to be at fault.

In terms of criminal liability, I have said before that a rule of thumb is that the driver of an emergency vehicle can do whatever they like provided they don’t crash; once they crash all bets are off.  A driver on the wrong side of the road who collected an oncoming vehicle (motorcycle or not) is prima facie not taking reasonable care.  Even if r 306 does apply to say that there is no offence in failing to keep left, that does not excuse the driver from offences such as dangerous driving causing death or serious injury (see again Court of Appeal dismisses appeal by RFS tanker driver involved in fatal collision (October 13, 2017)).

For further reading, see

• No liability for NSW Ambulance accident October 19, 2016; and
• All the posts that appear here: https://emergencylaw.wordpress.com/?s=306