Today’s question comes from Western Australia.  I’m asked:

Can a non-registered paramedic, let’s call them a medic, attend to emergency calls with lights and sirens as well as driving in a marked van labelled ‘ambulance’?

I’m then provided with a link to a private emergency service provider but I won’t post that here as the identity is not important but it’s that which tells me this question is from WA.

Paramedics are registered under the Health Practitioner Regulation National Law.  That scheme works via protection of title.  It is an offence for anyone who is not a registered paramedic to call themselves a paramedic or to use any other title to suggest that they are a registered paramedic (Health Practitioner Regulation National Law (WA) s 113).  This law says nothing about the road rules or ambulance services.

In Western Australia there is no ambulance service legislation.  So, anyone can set up a private ambulance service.  They cannot, on a public street, use lights and sirens or drive contrary to the road rules unless they have approval from the CEO of the Department of Transport (Road Traffic Code 2000 (WA) s 3 definition of ‘emergency vehicle’).

In short, yes a ‘non-registered paramedic, let’s call them a medic, [can, in Western Australia] attend to emergency calls with lights and sirens as well as driving in a marked van labelled ‘ambulance’’ provided they have been ‘duly authorised as an emergency vehicle for the purposes of these regulations, by the CEO’ of the Department of Transport.

Today’s correspondent is a paramedic from WA who was

…called to a patient who owned a lovely dog. We entered the house and shut the gate, as instructed, so the dog would stay inside the residence. While treating the patient I went back to the ambulance to retrieve equipment and in doing so, I left the side gate open and the dog escaped. We tried to search for the dog with the patient onboard but could not locate it. I never heard more about this specific case.

I am now curious as to liability and other consequences of a similar case, as it seems an easily reproducible problem. If it were to happen again, who would be liable? Assuming the patient were to pursue the matter through civil means.

Anyone who has pets knows that they are not merely property, but according to law they are.  The relevant law then is the same as if any damage were done to a patient’s property or that property was lost.

First it would be the employer of the paramedic that would be vicariously liable if there is any liability.

Second the question would turn as always on whether the actions were reasonable or not.  Leaving the side gate open when you go to get kit is probably not reasonable, but opening the gate to get the patient on the stretcher to the ambulance whilst all personnel there are working on saving the patient’s life so that there is no-one to secure the dog may be.

As for damages, a pet is irreplaceable- unlike a TV you can’t get another one and it’s just the same. Even so again the law would have trouble assessing damages for the loss of the dog – normal grief is not compensable – so absent the patient developing a recognised mental illness the damages would be the cost of another dog.  If the lost dog was a purebred breeding animal earning a large income the damages too would be large.  But if it was a rescue dog from the local pound, the damages would be no more than the cost of going to the pound and getting another one.

Conclusion

The fact that the lost ‘property’ was a dog doesn’t change any of the legal principles.  If the loss was caused by the negligence of a paramedic in the performance of his or her duties the patient/owner could seek damages for that loss from the paramedic’s employer.

 

 

Today’s correspondent is a registered paramedic working in Queensland who asks

… a question about an issue which is commonly encountered by Ambulance services.

I can cite numerous cases where my clinical disposition has been that the patient should seek further treatment, however, does not require transport to hospital via emergency ambulance. Furthermore, provision of such transport would be an unnecessary use of healthcare resources, which would foreseeably prevent other members of the community accessing an emergency ambulance, for the duration of transport/time at hospital.

However, it is quite often the case where the patient states that they do not wish to drive, utilise family/friends, or pay for public transport/taxi in order to do this.

Most recently I attended a case where the patient did not wish to use available transport means and gave an ultimatum that she would not seek help at all if she wasn’t transported to hospital via ambulance. In this instance, a GP did refer her for further investigation at hospital, however the nature of her condition did not warrant an emergency ambulance for transport.

Sections 2.4 (d), and 5.2 of AHPRA’s Paramedicine Code of Conduct require wise & discriminate use of health care resources, and therefore not taking this into account would be breaching professional duty.

Having practiced in rural and isolated locations, it is also clear the inequalities for some Australians in terms of accessibility, due to distance/lack of services. While these people tend to have greater independence and personal responsibility out of necessity, I believe their use of an otherwise limited or ‘reserved’ resource can be validated. This also goes for other individuals without support networks which would leave them vulnerable.  Therefore, the questions I ask are in the context where alternative pathways can be identified.

In summary, I ask:

1. Does the fact that an ambulance is a means of transport, mean that providing transport is part of a paramedic’s ‘duty of care’ (for want of a better term)? I.e. A resource which may be used to access the greater health care system?
2. Is it reasonable for a paramedic, in their findings, to request a patient utilise/burden their family & friends or pay for a taxi/public transport to access definitive health care?
3. If the patient does not wish to utilise those means for financial or other reasons (e.g. cost of fuel/taxi, inconvenience etc.) does transport via ambulance constitute necessary use of healthcare resources?

Paramedics do not have to transport everyone and giving people advice about alternatives is reasonable – see:

• Transport everyone or act as a professional? A question for paramedics (May 6, 2013);
• No adverse comments regarding paramedics following death of a woman in Ballarat, Victoria (April 3, 2017).

What distinguishes the cases discussed above from the question is that in those posts, the issue was whether or not paramedics could refuse to transport, or advise against transport, where the patient was willing to accept that advice.  The issue was whether a paramedic has to transport everyone who calls triple zero even if the paramedic does not think they need to go to hospital and where the person is willing to take that advice.  That is not the case where it is agreed that further care is required, but transport by ambulance is not required.  For posts that deal with the situation more like today’s question, see:

• Do paramedics have to transport everyone? (February 3, 2014);
• Paramedics decline to transport in NSW (March 21, 2014).

It seems to me that the critical issue here, and one that is still being resolved at a high policy level, is whether jurisdictional ambulance services are ‘emergency’ services or health services.  Even if paramedics are experts in out of hospital emergency care that does not mean that ambulance services are only about emergencies.  (And I suspect that the status of paramedics too is debatable, are they experts in ‘out of hospital emergency care’ or ‘out of hospital health care’?).  Legislation establishing ambulance services is the responsibility of the Minister of Health (New South Wales and Tasmania), the Minister for Health and Wellbeing (South Australia) or the Minister for Ambulance Services (Queensland and Victoria). Only in the ACT is the relevant Minister the Minister for Police and Emergency Services.  The Northern Territory and Western Australia do not have ambulance service legislation.

It is up to the operator of the ambulance service to determine what level of service they provide – that is what level of emergency and non-emergency transport they chose to provide.  It is also up to the ambulance service to determine how they will staff their ambulances.  It has been noted elsewhere that a paramedic has a duty to act in the best interests of their client.  If an ambulance service says ‘today we’re paying you as if you had a lower skill set’ that does not and cannot define the level of care that the paramedic provides particularly in a life and death situation – see:

• Dual registered paramedics (November 27, 2018) and the comments that follow that post.
• All the posts that appear here: https://emergencylaw.wordpress.com/?s=volunteer+scope+of+practice.

But that doesn’t mean that it cannot work the other way, that is an ambulance service can employ a paramedic to provide emergency health care but also require that paramedic as part of his or her employment to provide less than urgent care.

From a simple financial point of view, given many ambulance services charge for attendance, even if they don’t transport then a person who is going to get charged for attendance may well decide it makes better sense to insist on ambulance transport as they’re going to get a bill anyway, rather than get an ambulance bill and pay for a taxi.  That will certainly be the case if they have insurance to cover the ambulance costs.  See

• Paying for ambulance services in the ACT (July 16, 2018);
• Paying for ambulance services(October 4, 2014); and
• Subtle change in the way ambulance fees are recovered in NSW(June 1, 2015).

Paramedics may think that is unreasonable but it is certainly a function of the fee for service model that applies both for ambulances and for taxis.

With that I can turn to today’s questions:

1. Does the fact that an ambulance is a means of transport, mean that providing transport is part of a paramedic’s ‘duty of care’ (for want of a better term)? I.e. A resource which may be used to access the greater health care system?

Subject to the terms of employment and the nature of the service I would suggest that providing transport, including non-urgent transport, is part of a paramedic’s duty of care.  People need to access the health service and the paramedic has to consider what the implications are for those they are called to treat.  Some may not need ‘emergency pre-hospital care’ but they need or would benefit from hospital care.  Consideration has to be given as to alternatives and whether they are available to the person – if they are poor, socially incapable or isolated, or for whatever reason cannot make alternative decisions then of course assisting them by providing transport may be the only reasonable choice.  I do note my correspondent has noted this when they say their question does not apply to “…individuals without support networks which would leave them vulnerable.  Therefore, the questions I ask are in the context where alternative pathways can be identified.”

2. Is it reasonable for a paramedic, in their findings, to request a patient utilise/burden their family & friends or pay for a taxi/public transport to access definitive health care?

It may be reasonable to ‘request’ but harder to ‘insist’. A paramedic cannot know whether or not their patient has alternatives, that is whether they can afford a taxi or call on others for assistance.  The paramedic may say ‘I’m not going to take you as your partner’s here and there’s a perfectly serviceable car outside’ but the paramedic does not know the nature of the relationship and how that partner may react once the paramedic leaves. If they say ‘there are no alternatives’ it must be hard to ‘go behind’ or challenge that claim.

Family and friends do not have an obligation to provide that service so again it would be hard for a paramedic to challenge a claim that a person ‘cannot’ call for others.

3. If the patient does not wish to utilise those means for financial or other reasons (e.g. cost of fuel/taxi, inconvenience etc.) does transport via ambulance constitute necessary use of healthcare resources?

Ruth Townsend and I have previously written about what we see are problems with the ‘save triple zero for emergency’ programs – Michael Eburn and Ruth Townsend ‘Save 000 for emergencies: A flawed approach to reducing demand for emergency ambulance services’ (2017) 44(4) Response pp. 23-26.  In essence those programs try to reduce demand by asking people who cannot know to decide whether their case is one that paramedics would regard as an emergency.  What is required, we argue, is to manage supply.  That does not mean have more ambulances, but to have alternatives to emergency ambulances. Ambulance services should consider (as Victoria Ambulance, discussed in that article, does) having alternatives, whether that is ambulances staffed by people other than paramedics or using alternative transport and/or health services.  For my correspondent if there are alternatives provided by the ambulance service/health service then it stands to reason they should be utilised.  If, on the other hand, out of hospital health services are provided only by QAS and only by qualified paramedics, then the fact that the case is not an emergency does not deny that it is a legitimate use of the states’ health resources of which QAS is one.

Conclusion

The issues being raised here are relevant at a much higher, policy level.  It is up to the Ambulance Service and ultimately the state, to determine what level of service is to be provided and who they will employ to deliver that service.  Certainly, paramedics should give advice to their patients and explore alternatives to ambulance transport.  They do have a duty of care to their patients and that must include giving advice on whether they need further care.  Paramedics cannot be obliged to provide care that they don’t think the patient needs – so refusing to transport someone who doesn’t need to go to hospital.  But that is different to refusing to transport someone who does need to go to hospital but who does not need paramedic intervention en route.

In those circumstances, and subject to alternatives offered and policy direction from the employer, I would suggest it is consistent with a paramedics duty to his or her patient to transport the person if they indicate they do not have alternatives.  You may suspect that claim, but it would be hard or impossible to prove that there are people they can ring or other transport they can take advantage of.

Today’s correspondent works

… as a private industry Emergency Services Officer we provide Firefighting, Technical rescue & first aid response currently in the Qld mining sector

My question is who’s if any jurisdiction/ legislated authority do we fall under when performing a rescue? we have team members from all over the nation trained in the same Australian Qualifications Framework PUA& RII competencies however execute them as we have been trained differently.  What governing body if any would dictate the standards to which we would respond to an emergency?

Is it down to an Employer obligation to develop safe work guidelines for our response procedures or do we just follow how we were initially individually trained & work it out along the way?

I suppose an example I would point to would be ClinicalPractice Guidelines for paramedics, they provide the scope for which the paramedics operate within both for state & private services, is there anything like this that we would follow, I believe the QFES is the only legislated authority in QLD to perform rescues does this mean we should be following their standards?

The answer is you fall under your employers or more accurately, the Person Conducting the Business or Undertaking’s authority. The Work Health and Safety Regulation 2011 (Qld) says

(1) A person conducting a business or undertaking at a workplace must ensure that an emergency plan is prepared for the workplace, that provides for the following—

(a) emergency procedures, including—

(i) an effective response to an emergency; and

(ii) evacuation procedures; and

(iii) notifying emergency service organisations at the earliest opportunity; and

(iv) medical treatment and assistance; and

(v) effective communication between the person authorised by the person conducting the business or undertaking to coordinate the emergency response and all persons at the workplace;

(b) testing of the emergency procedures, including the frequency of testing;

(c) information, training and instruction to relevant workers in relation to implementing the emergency procedures.

Penalty: Maximum penalty—60 penalty units.

(2) A person conducting a business or undertaking at a workplace must maintain the emergency plan for the workplace so that it remains effective.

Penalty: Maximum penalty—60 penalty units.

(3) For subsections (1) and (2) , the person conducting the business or undertaking must have regard to all relevant matters including—

(a) the nature of the work being carried out at the workplace; and

(b) the nature of the hazards at the workplace; and

(c) the size and location of the workplace; and

(d) the number and composition of the workers and other persons at the workplace.

(4) A person conducting a business or undertaking at a workplace must implement the emergency plan for the workplace in the event of an emergency.

Penalty: Maximum penalty—60 penalty units.

Similar obligations exist under the Mining and Quarrying Safety and Health Act 1999 (Qld).  With respect to mines the Mining and Quarrying Safety and Health Regulation 2017 (Qld) r 38 says

(2) The site senior executive must ensure the mine has the following things as are appropriate, having regard to the nature and complexity of the mine’s operations—

(a) facilities or procedures for—

(i) persons, and using equipment, on-site; and

(ii) liaising with, and using, local or state emergency services;

(b) if the nature or remoteness of the mine’s operations limit the effectiveness of local or state emergency services—

(i) the availability of suitably trained site-based persons and suitable rescue equipment; and

(ii) facilities and procedures for liaising with, and using, persons and equipment from other operations and agencies for carrying out a rescue.

(3) The site senior executive must ensure reasonable action is taken to rescue persons from an area of unacceptable risk, or a refuge, at the mine.

(4) In deciding what action is reasonable for subsection(3) , the site senior executive must have regard to the risk to persons in carrying out the rescue.

Further r 41 says:

(1) The site senior executive must ensure the mine has a current rescue plan showing the mine’s emergency facilities, including relevant services reticulation and communication arrangements.

(2) For an underground mine, the plan must also show the following things—

(a) the direction and quantity of the ventilating airflow;

(b) the location of ventilation controls.

(3) In an emergency, the site senior executive must make available to the persons carrying out the rescue a sufficient number of copies of the plan at a scale suitable for use by the persons in the emergency.

Under the Work Health and Safety legislation and the Mining and Quarrying Safety and Health legislation the obligation to assess the risk and to determine the appropriate response lies with the operator of the work site.  And every work site will be different, so it is up to the operator, in consultation with workers, to determine how to conduct rescues and other emergency procedures taking into account the risk, the nature of the work, the nature of the site, the distance to other assistance etc. 

If it is discovered that employees have different understanding of ‘best practice’ given their different training, then it’s up to the employer (with consultation and no doubt guidance from crew leaders) to determine local procedures. 

When it comes to rescue in Queensland, there is no equivalent to the New South Wales State Rescue Board (established by the State Emergency and Rescue Management Act 1989 (NSW)) to authorise rescue squads and set out equipment levels.  Even there that Act applies to rescue squads that provide if you like ‘public’ rescue facilities that is respond via police to triple zero rescue calls (see s 52 definition of ‘rescue unit’). The Board is not governing or setting standards for industry rescue squads but sensibly an organisation would look to State Rescue Board standards when thinking about their own local rescue requirements. 

There are no ‘Clinical Practice Guidelines for paramedics, [that] provide the scope for which the paramedics operate within both for state & private services’.   The Queensland Ambulance Service Clinical Practice Manual sets out ‘contemporary standards of clinical practice’ but it only applies to Queensland Ambulance.   The Ambulance Service Act 1991 (Qld) governs the management of Queensland Ambulance.  With the exception of s 43 (Unauthorised ambulance transport) it does not govern private ambulance providers. 

Equally the Queensland Fire and Emergency Service is established by the Fire And Emergency Services Act 1990 (Qld).  There is nothing to say ‘QFES is the only legislated authority in QLD to perform rescues’.  Under that Act a person may be appointed as an authorised rescue officer (s 148).  Authorised rescue officers may exercise powers ‘to protect— (a) a person who is trapped, or endangered in another way, in a place; or (b) the officer or another person from danger, potential danger or assault’. Those powers will be relevant if QFES attend an industrial site, but they do not govern the operations of an industrial rescue team.  As with the NSW situation however, a prudent business operator may look to QFES as the leader in the field to identify what is required in terms of training and equipment.

Conclusion

The question was, in summary,

whose if any jurisdiction/ legislated authority do we fall under when performing a rescue? Is it down to an Employer obligation to develop safe work guidelines for our response procedures or do we just follow how we were initially individually trained & work it out along the way?

The answer is that it is the employer’s obligation to ensure the workplace has adequate emergency and rescue facilities and plans so the industrial rescue team is working under the employer’s authority. It is indeed up to the employer to ensure that the rescue team works – whether that requires formal safe work guidelines for response procedures allowing the team to work it out along the way depends on the risks involved.

Today’s question is:

… a question in relation to privacy

Say a first aid organisation was providing Event Health Services coverage at an event small concert with primary school aged children singing.

The venue was the one who contracted the First Aid organisation not the schools of the participants.

Would it be a breach of privacy on the (schools behalf) for the first aid organisation to go around to each school group and ask what medical conditions their students have given that at this point in time no one is requiring medical attention.

I personally believe that they should only be provided with such information at the time that they become a patient and not beforehand.

It is not a breach of privacy for the first aid organisation to ask ‘what medical conditions their students have’; it may be a breach for the school to answer that question.  However one can’t answer that in the abstract.

Collecting information about a child’s medical history is certainly collecting information that must be protected in accordance with the National Privacy Principles (Privacy Act 1988 (Cth) s 6 definition of ‘personal information’ and s 6FA ‘Meaning of health information’).  Such information must only be used for the purpose for which it was collected (Australian Privacy Principle 6).

Would it be a breach of privacy? It would depend on what the person giving the information to the school consented to.  What was the school’s privacy policy – did it say information would be given in those circumstances? Was there permission given in the attendance note? Is the information de-identified that is “we have three kids with peanut allergy” or specific – “Little Johnny, Julie and Tracy have peanut allergies”.   Is the medical condition sufficiently serious and rare that the first aiders need to know in order to have specialised resources available?

One would need much more detail of the particular circumstances to answer that question.

Today’s correspondent

… recently made a submission to Senate enquiry into Mental Health of First Responders – could contents of such submission be used against me by my employer or is subject to protection such as parliamentary privilege?

Submission to the Senate enquiry

The senate enquiry is an inquiry into ‘The role of Commonwealth, state and territory Governments in addressing the high rates of mental health conditions experienced by first responders, emergency service workers and volunteers’.  It is being conducted by the Education and Employment References Committee.  The Committee is due to report on 14 February 2019.

The Parliament says (Parliament of Australia, How to make a submission to a Senate Committee Inquiry (undated)):

Making a submission is protected by parliamentary privilege. It is an offence for anyone to try to stop you from making a submission by threats or intimidation. It is an offence for anyone to harass you or discriminate against you because you have made a submission. The content of the submission is also protected but only after the committee has accepted it. This means that what you say in the submission, once the committee has accepted it, cannot be used in court against you or anyone else.

What is parliamentary privilege is complex.  Section 49 of the Australian Constitution says:

The powers, privileges, and immunities of the Senate and of the House of Representatives, and of the members and the committees of each House, shall be such as are declared by the Parliament, and until declared shall be those of the Commons House of Parliament of the United Kingdom, and of its members and committees, at the establishment of the Commonwealth.

The Parliamentary Privileges Act 1987 (Cth) s 5 has continued those UK privileges (whatever they may be).  Section 16(1) says that ‘article 9 of the Bill of Rights, 1688’ continues to apply to the Australian Parliament!

Article 9 of the 1688 Act says:

That the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament.

In essence you cannot sue for what is said in parliament (see also s 16(3)).  In the ongoing case of Hanson-Young v Leyonhjelm, Senator Hanson-Young is suing Senator Leyonhjelm for defamation.   She cannot sue him for what he said in Parliament but can sue him for repeating the things he said outside the parliament.  In Carrigan v Honourable Senator Michaelia Cash [2016] FCA 1466, cited in Hanson-Young v Leyonhjelm [2018] FCA 1688, White J said:

The privilege is not concerned simply with protecting parliamentarians from legal action but is intended to ensure that parliamentarians and others can engage in the parliamentary process without concern that those actions may be subject to later scrutiny by the courts.

What follows is that the submission is subject to parliamentary privilege.   A person cannot sue for defamation for the things said in the submission.  Further, it is both a criminal offence and contempt of parliament to ‘inflict any penalty or injury upon, or deprive of any benefit, another person on account of any evidence given or to be given before the Senate or a committee’ (Parliamentary Privileges Act 1987 (Cth) s 12; Parliament of Australia, Procedures to be observed by Senate Committees for the protection of witnesses (undated))

What the above provisions means is that the person cannot be punished for making the submission but whether it can be used against them depends on what ‘used against’ means.   An employer has a duty to ensure that an employee is not exposed to risks to their ongoing health from their work.   If my correspondent has revealed that he or she is mentally unwell and that continued work as an emergency responders is causing harm to his or her mental health, that may come to the employer’s notice. The employer may then have to take action to help mediate that impact.  One might think that the evidence is being used ‘against’ them but another view is that it is being used ‘for’ them.

Conclusion

A submission to a Senate Committee is protected by Parliamentary Privilege.  A person cannot be penalised for making a submission.

 

 

On 20 January 2017, an offender drove down the Bourke Street Mall in Melbourne killing 6 people and injuring many more.  “On November 13, 2018, a jury convicted [the offender] of six charges of murder and 27 charges of reckless conduct endangering life” (Office of the Director of Public Prosecutions (ODPP), Bourke Street case information). The offender is due to appear for a plea hearing in January.

Today’s correspondent was there and responded to the emergency providing first aid to some of the victims.   He or she asks:

1. I have been asked to submit a victim impact statement, could I consider my statement to be used in court or just filed away with others? Are they regularly used and considered by the magistrate and prosecution? Or are they of little value? What would be of use for the courts to include in my or others statement?
2. Could you please give myself and other first responders an idea of what we can reasonably expect to occur in the future – Will there potentially be a Coroners Court inquiry and civil case? And what would such courts generally want from whom? Could a first responder reasonably be expected to attend?

I will necessarily speak in general terms.  Specific issues relating to this matter should be addressed to the ODPP or police.

Victim Impact Statements

Victim Impacts Statements are provided for in the Sentencing Act 1991 (Vic).   A victim impact statement is made ‘for the purpose of assisting the court in determining sentence’ (s 8K).

A victim impact statement contains particulars of the impact of the offence on the victim and of any injury, loss or damage suffered by the victim as a direct result of the offence… the victim impact statement allows the victim to tell the court about the impact of the offence on the victim… (s 8L).

A copy of the statement is filed in court and provided to the offender or his or her lawyer (s 8N).  A person who gives a victim impact statement may be called to give evidence about their statement and may be cross-examined on that evidence (s 8O).  A person may request that their statement or parts of it are read aloud to the sentencing court.  A sentencing judge may also elect to read aloud parts of the statement (s 8Q). Reading the statement aloud makes sure that the court and the offender are aware of the impact the offence has had on the victim.

In Director of Public Prosecutions v DJK [2003] VSCA 109 Vincent J said (at [17]-[18]):

With respect to those [victim impact] statements, I repeat comments that I have made as a sentencing judge on more than one occasion. They constitute a reminder of what might be described as the human impact of crime. They draw to the attention of the judge who would of necessity have to consider the possible and probable consequences of criminal behaviour, not only its significance to society in general but the actual effect of a specific crime upon those who have been intimately affected by it. The statements provide an opportunity for those whose lives are often tragically altered by criminal behaviour to draw to the court’s attention the damage and sense of anguish which has been created and which can often be of a very long duration. For practical purposes, they may provide the only such opportunity. Obviously the contents of the statements must be approached with care and understanding. It is not to be expected that victims will be familiar with or even attribute significance to the many considerations to which a sentencing judge must have regard in the determination of a just sentence in the particular case. Nor would it normally be reasonable or practicable for a sentencing judge to explore the accuracy of the assertions made. Nevertheless, there has been an increasing level of appreciation by the courts of the value of victim impact statements. In my view they play an important role with respect to an aspect of the criminal law to which reference is not often made. They play their part in achieving what might be termed social and individual rehabilitation. Rehabilitation, in this sense, is not perceived from the perspective of the offender, but from that of those persons who have sustained loss and damage by reason of the commission of an offence.

This notion of social rehabilitation is one that I do not believe has been accorded anything approaching significant recognition as an identifiable underlying concern of the criminal justice system. It seems to me that the process of social and personal recovery which we attempt to achieve in order to ameliorate the consequences of a crime can be impeded or facilitated by the response of the courts. The imposition of a sentence often constitutes both a practical and ritual completion of a protracted painful period. It signifies the recognition by society of the nature and significance of the wrong that has been done to affected members, the assertion of its values and the public attribution of responsibility for that wrongdoing to the perpetrator. If the balancing of values and considerations represented by the sentence which, of course, must include those factors which militate in favour of mitigation of penalty, is capable of being perceived by a reasonably objective member of the community as just, the process of recovery is more likely to be assisted. If not, there will almost certainly be created a sense of injustice in the community generally that damages the respect in which our criminal justice system is held and which may never be removed. Indeed, from the victim’s perspective, an apparent failure of the system to recognize the real significance of what has occurred in the life of that person as a consequence of the commission of the crime may well aggravate the situation…

Making a victim impact statement is voluntary.

How the court will use a particular statement no doubt depends on what it says and the submissions made by counsel for the Crown and counsel for the prisoner.  I can’t say what impact they would have in this matter.

For more information on victim impact statements see https://www.victimsofcrime.vic.gov.au/going-to-court/victim-impact-statements

Subsequent proceedings

A death is reportable to the coroner if the deceased appears to have died from a cause that was ‘unexpected, unnatural or violent or to have resulted, directly or indirectly, from an accident or injury’ (Coroners Act 2008 (Vic) s 4(2)(a)).  Each of the deaths caused by this offender would be a reportable death.  The Coroner must investigate a reportable death (s 15).

A coroner may hold an inquest (that is a formal inquiry).  He or she is not required to hold an inquest where ‘a person has been charged with an indictable offence in respect of the death being investigated by the coroner’ (s 52(3)(b)).  In this case a person has been charged and convicted so a coroner is not required to hold an inquest.

Section 67 sets out what the Coroner is looking to discover.  That section says:

(1) A coroner investigating a death must find, if possible—

(a)     the identity of the deceased; and

(b)     the cause of death; and

(c)     unless subsection (2) applies, the circumstances in which the death occurred; and

(d)     any other prescribed particulars.

(2) …

(3) A coroner may comment on any matter connected with the death, including matters relating to public health and safety or the administration of justice.

In the case of the deaths in Bourke Street, given the prisoner has been charged with and convicted of murder one can be sure that the matters listed in s 67(1) have been determined.  The Coroner would only hold an inquest if he or she wanted to determine whether there were matters connected with the death that warranted a comment for the purposes of public safety.

In making that decision the Coroner is required to ‘liaise with other investigative authorities, official bodies or statutory officers— (a) to avoid unnecessary duplication of inquiries and investigations…’ (s 7).  Given the extensive police investigation that is a necessary prelude to any murder prosecution it may well be that the Coroner will determine there is little value in holding an inquest.

What I can say (reading between the lines, including some lines that have been omitted from the question as it appears above) is that the Coroner is not going to be interested in holding an inquiry to consider how bystanders responded to the emergency and whether or not someone’s CPR was performed according to the textbook.  In the emergency services and first aid sector there is constant training by fear – if you follow the book all good but if you don’t do exactly as trained you’ll have to ‘defend yourself in the coroner’s court’ and ‘you’ll be on your own and will be liable for the damage/death’.  That training by fear is unhelpful and wrong (see First aid and paramedic care – and coroners are not out to get you (December 1, 2018)).  How well first aid was provided is not the issue.  The presence or absence of first aid was not the cause of anyone’s death, it was the injuries caused by the offender.  The only person responsible for those deaths is the offender.

That is not to say that if there was a coroner’s inquiry a first responder/first aider would not be asked to give evidence.  The coroner would want to investigate all the circumstances and make a comment on public safety but that comment would, I suggest, include a commendation for anyone who stepped out of the crowd to help.

Will there be a civil case? Again, I can’t say.  Victoria has extensive transport accident compensation (Transport Accident Act 1986 (Vic)) and victims of crime compensation (Victims of Crime Assistance Act 1996 (Vic)).  The direct victims, that is those killed or injured by impact with the offender’s car will be entitled to compensation under one or both of those schemes or workers compensation if they were at work at the time.  There may be a court case if there is some dispute between a claimant and an insurer as to the extent of payable benefits under a relevant scheme.

Secondary victims, eg first responders who were injured, either physically or mentally, may also be entitled to compensation see “Cop sues offender’s family” (May 22, 2013).   Whether that would require court action would depend on the attitude of the Transport Accident Commission, the Victims of Crime Assistance Tribunal or any other potential defendant.

Whether a person who assisted would be required to give evidence would depend on the issues before the court.  Courts are not investigative bodies they are umpires.  They sit to resolve issues that the parties cannot resolve.  To do that they hear evidence that is relevant to the issues that they have been asked to determine (Evidence Act 2008 (Vic) s 55).   If the issue is whether the applicant has really suffered the damage complained of, the evidence of a first aider who stepped up to assist someone else will not be relevant.  If it is the first aider that is seeking compensation then he or she will have to give evidence (if it gets to court) as to the impact of the event on their physical and mental wellbeing.

If the applicant is the family of the deceased, the evidence of a first aider is not likely to add much. If the applicant is someone who was injured the evidence of the first aider/first responder may be relevant to show that the injury they now complain of is or is not consistent with the injuries that were observed at the time.

Again I can’t say for sure as it does depend on the case being presented to a court but I would suggest that it would be very unlikely that a first responder would have any useful evidence to add.

Conclusion

My correspondent should not be concerned about writing an victim impact statement or subsequent court proceedings.  The victim impact statement will help the sentencing court understand the human impact of the offender’s actions.

If there are subsequent court proceedings no-one is going to concern themselves with the minutiae of any first aid response.  All that a person is required to do is explain what happened and what they observed.

Today’s correspondent asks:

With paramedic registration now in place, paramedics are going to be looking for opportunities to both offer and undertake continuing medical education (CME) opportunities.  Since this will be new for most of us, are you able to offer some insight about what would be considered a legitimate source of CME?  I have heard, for example, that unless you are a registered training organisation (RTO) that you cannot offer a certificate of “competency” in anything.  Is this the case?  In this new marketplace for paramedics, with the principle of caveat emptor firmly in the forefront, are there any significant caveats that we need to be aware of in terms of either offering or undertaking CME activities?  Can just anyone offer a certificate?  What guidance can you offer about identifying errors in offering and undertaking CME activities?

The Health Practitioner Regulation National Law refers to Continuing Professional Development (CPD) rather than CME.   Section 128 says:

A registered health practitioner must undertake the continuing professional development required by an approved registration standard for the health profession in which the practitioner is registered.

The Paramedicine Board has issued a relevant registration standard – the Continuing professional development registration standard (17 May 2018).  That standard says that a paramedic must:

1. complete at least 30 hours of CPD each year that:

a. seeks to improve patient outcomes and experiences

b. draws on the best available evidence, including well-established and accepted knowledge that is supported by research where possible, to inform good practice and decision-making

c. contributes directly to improving your competence (performance and behaviour) and keeping you up to date in your chosen scope and setting of practice

d. builds on your existing knowledge, and

e. includes a minimum of eight hours CPD in an interactive setting with other practitioners.

2. maintain a portfolio that documents your learning goals, records all your planned CPD activities, your reflection on how these CPD activities have or are expected to improve your practice and evidence of having completed these activities.

To assist practitioners the Board has issued Guidelines: Continuing Professional Development (17 May 2018).  It is hard to go past those Guidelines to answer my correspondent’s question.  The Guidelines say:

All CPD which helps you maintain and enhance your competence and is relevant to your scope of practice, will meet the standard.

The Board does not endorse/accredit CPD providers or activities but expects practitioners to select CPD activities that are consistent with the ethical and professional standards set out by the Board.

When selecting CPD activities you should consider:

• the qualifications, credentials and experience of the provider
• selecting a range of topics and activities over time
• having a balance between practice-based reflective activities (for example clinical audit, peer review or performance appraisal), professional education and training activities (for example seminars) and professional experience and development activities (for example meetings/ discussions, self-study, forums etc.), and
• choosing activities that are consistent with the Board’s other standards and guidelines.

Learning occurs through a wide variety of CPD activities. Examples include, but are not limited to:

• higher education/accredited courses
• conferences, forums and seminars
• undertaking research and presentation of work
• online learning and internet research
• written reflections on experience in day-to-day clinical practice
• reading books and journals relevant to your practice
• quality assurance activities, such as accreditation, clinical audit or review of records
• participation in committees relevant to your practice
• work-based learning contracts and employment related professional development
• participating in peer and performance review activities
• interactive professional or inter-professional interactions such as meetings e.g. case reviews, clinical forums (may be online or face-to-face), and
• activities that address current or emerging health priority areas, for example: cultural safety for Aboriginal and Torres Strait Islander peoples and identifying and responding to family violence.

Your day-to-day routine work duties cannot be counted as CPD.

Discussion

Registered training organisations (RTOs) are governed by the National Vocational Education and Training Regulator Act 2011 (Cth).   An RTO can deliver accredited courses within the scope of the RTOs registration.   A “VET qualification” is ‘a testamur … confirming that the person has achieved learning outcomes and competencies that satisfy the requirements of a qualification.’  A “VET statement of attainment” is ‘a statement given to a person confirming that the person has satisfied the requirements of units of competency or modules specified in the statement’ (s 3).

It is an offence for an RTO to issue a VET qualification or a VET statement of attainment where the training is outside the RTOs scope of registration (ss 93-98) or where there has not been appropriate assessment and confirmation that the student meets all the requirements for the Qualification or Statement of Attainment (ss 104-110).   It is an offence for anyone who is not an RTO to issue what purports to be a VET qualification or VET statement of attainment (ss 114-121; 126-129).

The rationale behind all this is that RTOs are expected to meet certain standards and deliver the approved courses within their scope of registration.  It means that as another RTO or employer if you have two people with the same VET qualifications you can or should be able to accept that they have equivalent training without having to ask questions about who did the trainng and what was covered.

My correspondent’s question was

I have heard, for example, that unless you are a registered training organisation (RTO) that you cannot offer a certificate of “competency” in anything.  Is this the case?

The answer is no that is not the case.  Anyone can deliver training and give you a certificate to say you were competent in that training.  If they are not an RTO or it is not a VET qualification or unit of competency they cannot issue a VET qualification or VET certificate of attainment but not every training is a VET qualification or unit.    I could design and deliver a course on ‘law and emergency services’ and issue a certificate upon completion.  Whether that would be worth anything to anyone is a different matter.  However, the short answer is ‘yes, anyone can issue a certificate’.   Whether it is of any value is a different matter.

We can then return to the Paramedicine Board’s Guidelines: Continuing Professional Development.  The Registration standard and the Guidelines do not require that CPD be delivered by an RTO.  There will be much CPD that will not be delivered by an RTO.   If you go to a lecture from your peers giving a case study report that won’t be delivered by an RTO and won’t have a ‘certificate of competency’ attached to it.  Nor will taking time to read or perhaps write a journal article on an issue that helps develop your knowledge.    Not every CTP event requires a ‘certificate’.

As for ‘significant caveats that we need to be aware of in terms of either offering or undertaking CME activities’ and ‘guidance … about identifying errors in offering and undertaking CME activities’ it’s impossible to go past the advice given in the Guidelines and set out, above.

Your portfolio

As noted above – the Continuing professional development registration standard requires you to:

… maintain a portfolio that documents your learning goals, records all your planned CPD activities, your reflection on how these CPD activities have or are expected to improve your practice and evidence of having completed these activities.

Paramedics Australasia (of which I am a board member) has developed an online portfolio that is available to PA members and that can assist you to meet that requirement and to prove your CPD compliance when it comes to renewing your registration.  For details on the PA portfolio, watch the video from PA president Peter Jurkovsky.

PA also offers a variety of CPD activities both face-to-face and via e-learning.

• For details on e-learning see https://elearning.paramedics.org/moodle/index.php
• For details on CPD events see https://www.paramedics.org/events/ or contact your state/territory PA chapter.

Today’s correspondent raises the question of actions taken by independent officers at a fire. My correspondent says:

Most people these days who die in bushfires, die in their cars evacuating too late. If a police officer who believes he is doing the right thing – but who is not a firefighter forces people to evacuate and those people die in the evacuation and the house that was being evacuated was easily defended, then what are the consequences?

This debate has been going on for years and the NSW RFS policy reflected that. Examples in the blue mountains where police officers evacuated people with nowhere for them to go – roads became blocked – and it marred fire trucks trying to get to the fires with all these people clogging the roads – go early or stay and defend. It was a clear statement that if you prepared you could put out spot fires and save a home. That’s not to say that a 20m high firestorm is survivable – but what is the situation if someone mandatory evacuates in panic without the facts or the experience of a fire official.

There is no simple answer to the question ‘what are the consequences’ (assuming we’re talking about legal consequences).  It all depends on the facts.

According to AIIMS (the Australasian Interagency Incident Management System) there is to be only one incident controller.  According to the AFAC AIIMS-4 Aide Memoire IOS App (2013) the Incident Controller is to:

• Take charge and exercise leadership…; and
• Set objectives for the response to the incident considering the safety of communities as a priority.

(I know it’s not the current version of AIIMS but it is the current App and I’m not in my office so can’t put my hands on the latest edition of AIIMS).

Under the State Emergency and Rescue Management Act 1989 (NSW) there is to a combat agency assigned for most risks (s 12(3)).   The Act (s 3) defines the combat agency as:

… 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.”

The State Emergency Management Plan (Annexure 3) says that the Rural Fire Service has control responsibilities for fires within a rural fire district.

What follows is that it is the Rural Fires Service that will appoint the incident controller and it is the incident controller on behalf of the RFS who sets the objectives for the response and gives the overall direction to those involved in the response, and that can include the police (Rural Fires Act 1987 (NSW) ss 41 and 45).

But that doesn’t mean police cannot act independently.  In particular police have an independent authority to order an evacuation.  Section 60L(1) of the State Emergency and Rescue Management Act 1989 (NSW) says:

A senior police officer may, if satisfied that there are reasonable grounds for doing so for the purpose of protecting persons from injury or death threatened by an actual or imminent emergency, direct, or authorise another police officer to direct, a person to do any or all of the following:

(a) to leave any particular premises and to move outside the danger area,

(b) to take any children or adults present in any particular premises who are in the person’s care and to move them outside the danger area,

(c) not to enter the danger area.

There is nothing in the Act that says the police officer making the decision has to liaise with the combat agency or the incident controller.

It of course makes sense that people at the fire front have to make decisions. The Incident Controller may set the objectives and the ‘overall direction’ of the response but those on the fire ground have to make a call.  Whether it’s a brigade captain who has to decide the tactics to respond to a changing situation or a police officer who also has to deal with whatever reality they are currently facing.  To require them to ‘check back’ with the IC or someone else is likely to lead to delay and equally to catastrophic risk.

It is well documented that during the Black Saturday fires of 2009, Victorian police officers led a community to safety. The 2009 Victorian Bushfires Royal Commission (Final Report, Volume I, Chapter 10, p. 155) said:

Senior Constables Kenneth Dwight, Peter Collyer and Ian Hamill made the decision that evacuating the people gathered at the Gallipoli Park oval would be safer than allowing the people to stay there. They were confident that evacuation was possible because they had recently driven down the Buxton–Marysville road and it had been passable.

Senior Constables Dwight, Collyer and Hamill, along with Senior Constable Andrew Walker, who directed the people on the oval to drive in convoy to Alexandra, had to make snap judgments using very limited information. They exercised initiative and sound judgment. Although acknowledging that this approach went against prevailing policy and that the evacuation was risky because the Buxton–Marysville road could have become blocked, the Commission commends the officers for their bravery and decisiveness. They made a controversial decision, but they made it with the safety of the public foremost in their minds and successfully delivered those involved to a safer place.

Volunteers in two VICSES vehicles drove along the streets of Marysville trying to warn any residents remaining in the town. They used the vehicles’ public address system, calling out ‘SES Rescue, all vehicles evacuating Marysville are to head to Alexandra only’. When they reached the corner of Falls Road and Mount Kitchener Avenue, embers started coming in through the vehicles’ windows, and they decided it was too dangerous to stay. They went to the rear of the convoy, waiting as cars joined and advising people to keep going to Alexandra.

As the convoy drove north along the Buxton–Marysville road the smoke cleared. The police and the VICSES personnel were able to warn many residents along that road and in Buxton of the approaching fire by going from door to door.

The Commission commends the police and the VICSES volunteers involved in evacuating Marysville and Buxton for their courage and presence of mind.

In that situation the decision worked, and the police involved were rightly considered heroes.  It would have been a very different situation if all those involved had been led to their death.

One can imagine that in the next big fire there will again be post event reviews and if it is found that a police officer ordered an evacuation that in fact put people at greater risk then no doubt that will be considered along with questions about the situation as the officer perceived it and why the decision he or she made seemed like the best decision at the time.  We would hope that if there are lessons to be learned they are learned without sacrificing the officer on the altar of hindsight.

Whether an officer has access to all the facts or the wisdom of a fire officer will depend on the fire.  Does the communication work? Is there are fire officer there or is the officer the only emergency service official there?  What does he or she know? What do the locals know?  There are too many impossible variables to answer the question ‘what are the consequences?’

What we can say is that a police officer will not be personally liable for the outcome of his or her decision, they will not be criminally responsible and if there is death or injury then the state may be liable (as they are vicariously liable for the actions of police – Law Reform (Vicarious Liability) Act 1983 (NSW) s 9B).  There is no way in the absence of particular facts one could make any prediction on whether such a claim would succeed.

Conclusion

One might infer that my correspondent is looking for some way to hold a police officer responsible for the potential damage caused by an evacuation that is ordered by police rather than the fire incident controller.  I’m not sure if that is indeed what is desired, but I can say with great confidence that it is not going to happen.

During an emergency, decisions have to be made and police and others are given that authority.  We entrust the police, and the fire and emergency services, to make those decisions in good faith and with the best information that they have but it has to be recognised that in a major event, information and communication may be very restricted.  An officer has to make the best call he or she can.  There may be questions later as to why that appeared to be the best call and if there were unintended, unexpected or adverse outcomes there may be opportunities to learn.  But there will be no legal consequences for the officer who acts in good faith and in accordance with his or her duty.

If there are issues of liability they will fall to the state as it is the state that operates the fire brigades and the police.

Today, 1 December 2018, is the commencement day for paramedic registration.  From today if you have not applied for registration you cannot continue to call yourself a ‘paramedic’.  But the registration process takes time.  Today’s correspondent asks about a letter from the Paramedicine Board (at this point I note I haven’t seen the letter, I’ve been given what I’m told is the wording of the letter, not an actual scanned copy).  I’m told the letter says:

Thank you for lodging your application for registration with the Paramedicine Board of Australia (the Board). Your application is currently under review.

Under section 85 of the Health Practitioner Regulation National Law, as in force in each State and Territory (the National Law), if a Board or its delegate has not made a decision about your application by December 8, 2018, your application will automatically be refused unless an extension of this date is agreed upon.

Given that your application is still under assessment, we propose to extend this date until March 8, 2019.

If you agree to this extension please advise us in writing via return email by December 4, 2018.

My correspondent’s questions are:

1. How long does ‘the board’ have to make a decision?
2. Is the practitioner effectively registered until a decision is made?
3. Is Dec 8 an arbitrary date chosen by ‘the Board’ or is this something written into the ‘Health Practitioner Law’ etc.
4. When are we likely to see the board define what a Paramedic is and does, as I feel this will likely greatly effect registration applications of the future, and potentially open avenues for re-application?

Section 85 of the Health Practitioner Regulation National Law says:

If a National Board fails to decide an application for registration within 90 days after its receipt, or the longer period agreed between the Board and the applicant, the failure by the Board to make a decision is taken to be a decision to refuse to register the applicant.

It follows that the answer to question 1 is ’90 days or such longer period as is agreed’.  It also means that the answer to question 3 is that December 8 is not an arbitrary date chosen by the Board, it is presumably the date that is 90 days after this particular application was submitted.

The answer to question 2 is that an applicant for registration as a paramedic is ‘effectively registered’ provided they submitted their application before today, 1 December (Health Practitioner Regulation National Law, s 315).   The Paramedicine Board says (https://www.paramedicineboard.gov.au/Registration/After-youve-applied.aspx):

If you have applied for registration before participation day on 1 December 2018 (the day paramedicine regulation starts), you can continue to practise as a paramedic while your application is being assessed, which may occur after participation day.

If you apply for registration after participation day, you will be unable to practice as a paramedic until your application is assessed and decided.

The answer to question 4 is that the Paramedicine Board is unlikely to define what paramedics do.  The Health Practitioner Regulation National Law does not seek to define scope of practice and neither do other Boards.  The Paramedicine Board has however published Professional capabilities for registered paramedics (29 June 2018).  As for who a paramedic ‘is’ I think we know that – a paramedic is a person with an approved or a substantially equivalent qualification or an accepted qualification issued by NSW Ambulance; or a person who meets the requirements under the grandparenting provisions.

This post follows nicely from my last one – First aid and paramedic care – and coroners are not out to get you (December 1, 2018).

I have been sent a letter from a South Australian operator of retirement homes (not nursing homes).  They claim to provide ‘modern homes and resort-style leisure facilities for over-55s in safe and secure village environments.’ Their letter explains why they are not installing AEDs in their facilities.

In the following table, their stated reasons are in the first column and my response is in the second column.

A defibrillator provides a shock to the heart in a cardiac arrest to help the heart muscles regain normal rhythm. It cannot assist if the reason for the cardiac incident is for something else such as blocked arteries or an aneurysm. Fair enough, but so what.  That it can’t assist in every case doesn’t deny that it can assist in some. A defibrillator is therefore not suitable for all types of heart attack and requires a level of judgement and skill to be exercised by a person using the defibrillator. My understanding is that is not correct.  AEDs are designed to be used by people without training.  It doesn’t require judgement as the machine determines if a shock is call for. A defibrillator is a machine which lies idle most of the time and then has to work perfectly when required. Whilst we understand defibrillators are designed to automatically test itself at regular intervals, establishing and maintaining a rigorous maintenance schedule is required and we do not consider that this is appropriate for us or the residents’ committee to do so for reasons of potential liability explained later in this letter. It may be true that the machine requires some sort of inspection and maintenance.  The ‘reasons of potential liability’ are however not grounds not to have one, as discussed below. If defibrillators were to be placed on the common areas, an expert assessment would need to be made as to how many defibrillators should be made available and where they should be made available, as the speed with which a defibrillator can be used is critical to the survival rate of the resident. We do not consider that this is appropriate for us or the residents’ committee to do so for reasons of potential liability explained later in this letter. That assessment is required now.  Under the model Work Health and Safety Act applicable in all states other than Victoria and Western Australia (and this provider is not in either Victoria or WA) a person conducting a business or undertaking is required to have first aid facilities and emergency procedures.  The first aid facilities are based on a risk assessment and compliance with the First Aid in the Workplace Code of Practice 2015 (see Work Health and Safety Act 2012 (SA) s 19 and Work Health and Safety Regulations 2012 (SA) rr 42 and 43. Training in the operation of the device is essential. We have attached some pages from the Phillips Heart start brochure entitled ‘warnings and precautions’ which sets out some clear risks. For example applying pads to wet skin is a serious risk. No it’s not; that’s the point of them.  In any event a basic first aid course now includes training in the use of an AED.

Applying pads to wet skin may be a risk, but so is failing to use an AED to increase the chance of survival. Even if comprehensive and regular training was available, there is no certainty that a trained person will be available to operate the defibrillator at the correct time. Fair enough, but so what.  That is also true with respect to a first aid kit. We are concerned that residents who are suffering cognitive decline may attempt to use the defibrillator but their cognition prevents the resident using it correctly. My understanding is that if used incorrectly the defibrillator poses no risk as it will not deliver a shock. If it doesn’t deliver a shock that is no worse than not having it.  This is not a risk. We are concerned that a well-intentioned attempt to use the defibrillator, may delay calling an ambulance with trained paramedics to the scene. I have no idea why they would have that concern. We are concerned that if a defibrillator is used, and it fails to resuscitate the resident that this will cause anxiety and stress to the person using the defibrillator and observers of what has happened. Whereas what, doing CPR won’t?  Or perhaps seeing a person collapse and realising that there isn’t a defibrillator available won’t?  One has to say this is a ridiculous reason. Legal Risks The protections available under the Consent to Medical Treatment and Palliative Care Act 1995 to administer emergency medical treatment only apply to a qualified medical practitioner. The Consent to Medical Treatment and Palliative Care Act 1995 (SA) s 13 does authorise emergency medical treatment by a medical practitioner, but that is not the only basis to authorise emergency medical care. If it was no-one else, not a first aider not SAAS could provide emergency care.

The common law of necessity justifies treatment such as CPR where a patient cannot communicate and the treatment is reasonable and in their best interests – see The doctrine of necessity – Explained (January 31, 2017).  If this service provider really believed that presumably they would never provide first aid to anyone in their facility. If a resident has given the legal direction that they do not wish to be resuscitated in the event of a cardiac arrest, the use of defibrillators against that direction exposes us and the person using the defibrillator to legal action. Possibly, as noted hear many times, treatment including life-saving treatment cannot be justified where it is contrary to the known wishes of the patient: In Re F [1990] 2 AC 1.   Presumably the facility has the means to record patient’s advance directives and it would be appropriate for staff not to resuscitate people in those circumstances.

But these are retirement homes not high dependency nursing homes.  As for other residents if they don’t know of a person’s wishes they can’t be expected to comply with them.

This risk applies equally to applying CPR or any other treatment.  It is something that a retirement village needs to consider but it is  an incredibly small risk. Whilst residents may utilise what is known as the Good Samaritan defence from legal action, we are unable to utilise that defence. That is probably true.  The facility itself must owe a duty of care to its residents and it provides its services for a fee, it is not a good Samaritan (Civil Liability Act 1936 (SA) s 74). Even if a resident could utilise the Good Samaritan defence, the resident must establish a number of criteria such as proving that he or she was not significantly impaired by alcohol or recreational drugs when administering the defibrillator. Also, the defence is exactly that and does not stop the claim being made against the resident. That’s not true in South Australia.  The Civil Liability Act 1936 (SA) s 74 does not say that it does not apply if the good Samaritan is affected by alcohol or drugs.

The chances of a claim being made are so small as could be described as ‘far fetched and fanciful’. There is greater risk of a claim being against the facility for not having an AED (explained below) than there would be a risk of a claim against a person for using one. If a resident does not have public liability insurance, then the resident’s personal assets are exposed to a claim being successfully made against the resident. That is so far fetched and fanciful that it can be disregarded.  In any event anyone who has home contents insurance will have public liability cover. The Good Samaritan defence is only available in relation to a claim for civil liability and would not be available to a resident who was criminally prosecuted for assault by the use of the defibrillator. But the common law defence of necessity will be. There is no legal obligation on us to install or allow the installation of defibrillators on the common areas of our villages That’s a debatable point.  It’s true that there is no legal duty on most people to have an AED (see Making the installation of AED’s compulsory (September 27, 2015); Liability for failing to install an AED? (April 7, 2016) and Choosing not to install an AED for spurious reasons (September 10, 2018)).  But a retirement village is different.  First it is a workplace so it is required to consider the risk to those at the workplace including residents.  As noted above the Work Health and Safety legislation requires a risk assessment when it comes to deciding what are adequate first aid facilities and equipment – so issues of what first aid kit, how many first aiders and whether an AED is required.  That is a risk assessment that must take into account the fact that an over 55 retirement village has, by definition, a larger concentration of people over 55 than might be found in say a supermarket and there may be a higher risk that on any given day someone may suffer a cardiac arrest and would benefit from an AED.

The question becomes is it ‘reasonable’ to expect there to be an AED in place.  That in turn would require consideration of not only the First Aid Code of Conduct but what if anything is the industry standard.  What are other facilities doing?

As for a fear of liability imagine a social event in the facility and someone collapses and dies.  Their family discovers that there was no defibrillator present.  Putting aside difficulties of proving that a defibrillator would have made a difference, who are they more likely to complain about? The place that has one and tried or the one that didn’t?

Whilst there may not be a legislated obligation, work health and safety legislation has moved away from prescriptive rules to require a business to have appropriate facilities based on risk. Whether there is a legal obligation remains to be seen but it’s certainly arguable that the common law obligation to take reasonable care to avoid foreseeable harm to those to whom one owes a duty may require an over 55 residential facility to have access to an AED. If a medical emergency such as cardiac arrest occurs in the village, the most appropriate approach is to immediately call an ambulance and let properly trained and equipped people deal with the situation. That is simply not true.  We know the chain of survival requires early access, early CPR, early defibrillation and then advanced care (https://www.stjohnsa.com.au/news-and-events/news/Know-your-CPR!).  Simply standing back and waiting for an ambulance is not the most appropriate approach. It is inconsistent with first aid knowledge, it is inconsistent with the idea of building community resilience, it is inconsistent with the service provider’s duty of care to its residents and is wrong.

In my earlier post (First aid and paramedic care – and coroners are not out to get you (December 1, 2018)) I discussed the decision in the Inquest into the Death of Siauto Eliuta Tunumafono [2018] ACTCD 19. The expert in that case gave this evidence (emphasis added):

The cause of death was cardiac arrhythmia/arrest…  The expected prognosis from such an arrest depends heavily on the time to effective CPR and to defibrillation if indicated.  A 25 minute period in cardiac arrest without CPR is essentially unsurvivable regardless of initial rhythm or treatment.  A 10 minute period from arrest without effective CPR has a very low probability of a good neurological outcome.  A 5 minute period of good CPR commencing at arrest and terminated with effective defibrillation has a “good” prognosis with 50-75% achieving hospital discharge. 

Choosing not install AED’s because of fear of legal liability – because you think as a service provider it’s better to do nothing for your customers than do something – is an example of Choosing not to install an AED for spurious reasons (September 10, 2018).  To paraphrase my conclusion at the end of that earlier post:

… a [retirement community] should be thinking about what we should do that will provide the best service for our [residents], not how do we do the least possible.  Not installing an AED for fear that one somehow be liable if it’s used is ridiculous.  They are intended to be used by anyone…

It may be reasonable to choose not to install one on a cost-benefit basis, but it can’t be reasonable to choose not to install one for fear that ‘it will give rise to some additional duty of care that could wind up with them getting sued’.  It won’t.

In this post I am going to report on a decision of the ACT Coroner in An Inquest into the Death of Siauto Eliuta Tunumafono [2018] ACTCD 19 (29 November 2018).  Before I do that, I want to reflect first on some earlier coronial decisions that talk about the quality of first aid responses.

I was recently invited to give a presentation to Allens Training on the Sunshine Coast.  They asked me to address coroners’, first aid and first aid training. Because that was in Queensland I looked at the Queensland Coroners Court findings and found three relevant inquiries.  No doubt there are more but there’s a limit on what you can present at a conference.  Naturally first aid arises in Coroners courts as they are investigating deaths and often people receive first aid in an effort to save their life.  When they do die the administration of first aid will form part of the circumstances of their death.  These cases were all reported to the coroner because they involved deaths in police custody and those deaths must be reported.

Inquest into the death of Allan Duncan Lee-Chue (10 February 2009)

Mr Lee-Chue had been arrested and was being transported to the police station.

During conversation with one of the officers he stopped talking mid sentence and began to convulse. The officers removed him from the vehicle, by which time he had stopped breathing, had lost consciousness and had no pulse. Despite treatment from Queensland Ambulance Service officers, who arrived some minutes later, he never regained consciousness and was declared deceased at the scene.

On observing Mr Lee-Chue’s collapse:

The officers removed Mr Lee-Chue from the vehicle and placed him on the road in the ‘recovery’ position. Both officers indicate their initial concern was there may be an obstruction of Mr Lee-Chue’s airway. Once in the recovery position it appeared that Mr Lee-Chue’s tongue may have been obstructing his breathing. Each of the officers said they returned to the vehicle to obtain a plastic mouthpiece normally used for roadside breath tests. This was then placed in Mr Lee-Chue’s mouth in an attempt to pry open his lips and clear his airway. It is likely only one of them initiated this process and I doubt both made attempts to use it on Mr Lee-Chue. In any event this was ineffective.

Neither officer attempted to perform CPR on Mr Lee-Chue. They said variously they did not think it appropriate when they hadn’t established an airway; they did not know what the problem was and therefore know whether CPR would be effective; and, that by the time it might have been appropriate to perform CPR they could hear the sirens of the approaching ambulance.

Unfortunately, the first aid kit normally kept in the police vehicle had been left at the police station after being taken out to be refurbished.

Further, while both officers had been trained in first aid and CPR techniques, neither was up to date with their training. Indeed both officers indicated their knowledge of CPR procedure was scant.

These factors combined, perhaps, with the unpleasantness of the task, may have left the officers reluctant to commence CPR…

The autopsy showed that Mr Lee-Chue

… had severe narrowing of the coronary arteries. Apart from this severe narrowing, he had evidence of recent haemorrhage into atheromatous plaque within the right coronary artery, this haemorrhage compromising the lumen of the right coronary artery and precipitating fatal heart attack.

Correspondents to this blog may think the police would come in for harsh criticism for not attempting CPR, not ensuring the car was equipped with a first aid kit and improvising an airway using a breathalyser tube.  If you believe the rhetoric that I hear, that courts will ‘get you’ if you depart from anything other than your exact training that may be what you expect, but it’s not what happened.  The Coroner said:

While their first aid response was not perfect, I accept Mr Lee-Chue’s condition, the lack of a first aid kit in their vehicle and a lack of recent first aid training all may have contributed to this suboptimal performance to some extent. However, I am also satisfied no first aid which could have been given at the road side would have saved Mr Lee-Chue.

The police were not criticised for their response and the cause of death was not put down as some failure to perform first aid.  Mr Lee-Chue died of ‘natural causes namely acute myocardial infarct due to or as a consequence of coronary atherosclerosis’.

Inquest into the death of Amit Kumar (11 March 2015)

Mr Kumar had booked to go on a chartered fishing trip.  He had had previous dealings with the charter boat operator who had banned him from coming on future trips so he had booked this trip under a false name.  On arrival the crew identified him as the person who had been banned and he was told that he was not allowed to go on the fishing trip.  Mr Kumar hit the female representative of the charter boat company.  Further violence occurred involving the customers and crew of the charter boat company.  Mr Kumar was pushed to the ground and held there by at least four men.

A triple zero call was made and in the recording the sounds of the struggle can be heard.  The coroner reported that the following words could be heard:

A male voice: “You’re not going nowhere pal”;

Mr Kumar: “Oh my brother, I can’t breathe”;

A male voice: “Not our problem bud”;

In another triple zero call ‘Mr Kumar is heard to be saying at least three times in what appears to be a very panicked tone and in very short bursts: “I can’t breathe”.’

In order to relieve them from the physical effort of restraining Mr Kumar, zip or cable ties were used to restrain him.  These were applied between 5.40 and 5.44am.  When Mr Kumar was restrained by the zip ties, everyone stood up and it was then realised that Mr Kumar had stopped moving.   CPR was commenced at 5.46am.  At that point, Dr Yates one of the passengers on the intended fishing trip

… did assume control over the group in relation to Mr Kumar’s medical situation once they realised he was in trouble. Dr Yates and/or Mr Dempster rolled Mr Kumar over onto his left side. Dr Yates observed his pale tongue hanging from his mouth and could see he was not breathing. Dr Yates said he located some vomit inside and smelt a strong smell of alcohol when he did this. Dr Yates then gave Mr Kumar a sternum rub and shook him with no response.

He then gave Mr Kumar a closed fist whack to the centre of the chest (a ‘sternum thump’) with no response. It is noted that Dr Yates’ sternum thump methodology was probably unorthodox based on the current CPR training, however, is unlikely to have had any impact on the outcome.

Dr Yates and/or Mr Dempster then instructed Mr Daraz to cut the zip ties, which he did. They then commenced CPR. Dr Yates stated that from the time Mr Kumar went limp (and they realised he was in trouble) until the time they commenced CPR was about two minutes.

At the time Dr Yates commenced CPR, he called for Mr Daraz to tell him the time. Mr Daraz had looked at his mobile phone and stated that the time was 5:46am.

Dr Yates initially performed the chest compressions and Mr Dempster gave mouth to mouth resuscitation with two breaths to 30 compressions. Mr Dempster vomited as a result of air he was breathing into Mr Kumar’s mouth coming back out into his mouth. He stated that he smelt what he thought was a ‘spewy alcohol smell’.

Dr Yates stated that he and Mr Dempster had difficulty getting breaths into Mr Kumar because of the thickness and narrowness of his neck and the difficulty of maintaining a clear airway.

Police arrived and provided a resuscitation face mask and assisted with compressions pending arrival of Queensland Ambulance.

The autopsy was inconclusive as to the cause of death.  The Forensic Pathologist, Dr Storey:

… noted that Mr Kumar’s coronary atherosclerosis was of a sufficient degree to potentially result in sudden death. In this context, the potential for sudden abnormality in heart rhythm may have been heightened in circumstances of agitation, when circulating stress hormones were increased.

Dr Storey was unable to pinpoint a singular cause of death. He was of the opinion that the medical cause of death was a complex interplay involving a number of factors such as the elements of agitation, restraint, obesity, prone position, and coronary atherosclerosis…

What did the coroner say of the first aid particularly that provided by Dr Yates, a medical practitioner?  His was comment was that Dr Yates

… should have had a higher level of awareness of the dangers… It was unacceptable … to put aside his medical training and experience on the basis that he was given just one job to do – to restrain Mr Kumar’s right arm. [He] … did take control of the situation once CPR was required, but he should have taken more control … earlier… I find that his failure to do so was unreasonable.’

But that finding by a coroner is not a finding of either criminal or civil liability.  No charges were recommended against anyone involved in the restraint of Mr Kumar. The cause of death was not poor first aid but ‘The combined effects of restraint and coronary artery atherosclerosis in a man with centripetal obesity’.  The Coroner’s recommendation was that:

… first aid training providers consider including a component in their training to raise awareness about the dangers of positional and restraint asphyxia.

Inquest into the death of Neville Royston Reading (9 June 2015).

Neville Reading died in similar circumstances to Mr Kumar.  Mr Reading was involved in a violent altercation on the street. Neighbours intervened, and cable ties were used to restrain Mr Reading, and he was held on the ground, restrained by people applying their body weight to him, for 5-10 minutes pending the arrival of police.

In that time some [witnesses] said Mr Reading had periods of wakefulness, and those where they thought he was asleep or unconscious. Some heard snoring, a snort, and others nothing.

Police arrived and determined that MR Reading was unconscious, and he was placed in the recovery position. Shortly after it was determined that he did not have a pulse.

Resuscitation efforts commenced during a torrential downpour and he was transferred to the Cairns Base Hospital. He did not regain consciousness and was declared deceased at 7:58pm on 2 November 2013.

Dr Botterill, a Forensic Pathologist conducted an autopsy.  Based on the autopsy and pathology results he:

… considered that the cause of Mr Reading’s death was most probably a cardiac dysrhythmia during restraint. He considered it likely that the factors of restraint, the stress of the altercation, equivocal heart enlargement, heart valve disease and significant alcohol intoxication may each have contributed to the death to some extent. However, Dr Botterill was unable to quantitate the relative contribution of those factors to the death.

Dr Botterill considered that in this instance the circumstances were in keeping with a death that occurs during a restraint event. It was difficult to identify a single disease process or injury to explain the death. In combination the risks associated with each of those individual processes or conditions adds up and, in many cases of restraint, results in death.

With respect to first aid, the coroner said (emphasis added):

I consider that the continued application of force to restrain Mr Reading on the ground in a prone position after the cable ties were applied was unnecessary. He was clearly immobilised. Two of the persons involved in the restraint had previously undergone first aid training. Those persons should have placed him in the recovery position…

Both appeared to be unaware of the importance of placing restrained or unconscious persons in the recovery position, and the evidence of both men was that they did not receive any training in relation to the risks associated with persons being placed in a prone position.

With respect to the police:

Constables Daniell and Taylor did not hold current first aid qualifications while Constable Hall did. However, I should note that there is nothing in the evidence to suggest that the first aid response of these officers was inappropriate or had any bearing on the sad outcome in this case.

What did the coroner conclude? The coroner did not conclude that the cause of death was poor first aid or that anyone could be liable for anything.  The cause of death was the various underlying conditions.  The decision to restrain Mr Reading by both the citizen bystanders and the police was reasonable.  With respect to the bystanders and their understanding of first aid, the Coroner noted the recommendation from the Inquest into the death of Amit Kumar (discussed above) and said:

The relevant government website indicates that 526 providers are registered to provide course HLTAID003 – Provide First Aid. I note that this and related courses now include a requirement that candidates demonstrate a knowledge of “airway obstruction due to body position”.

Increased awareness of the risks of positional asphyxia by those who may in the future become involved in the restraint of persons, particularly on the ground, may lead to fewer deaths occurring in these circumstances.

The coroner did not recommend any action against the constables or Queensland police.  The Coroner’s only recommendation was:

… that the Commissioner of the Queensland Police Service consider incorporating relevant CPR and other first aid response training into annual Operational Skills & Tactics Training provided to police officers.

Inquest into the Death of Siauto Eliuta Tunumafono [2018] ACTCD 19 (29 November 2018).

This then brings me to the discussion of the findings of the ACT Coroner.  Ms Tunumafono’s death was not in police custody but the coroner did comment on the care provided by ACT Fire and Rescue and ACT Ambulance. Ms Tunumafono

…was a 43 year old woman at the time of her death.  She was found unresponsive at home by family members on 11 December 2013.  Triple zero was called.  Officers of ACT Fire and Rescue (ACTF&R) attended first and commenced providing treatment.  They were followed shortly thereafter by officers of the ACT Ambulance Service (ACTAS) who took over treatment.  Ms Tunumafono was then transported to Calvary Public Hospital in Bruce where she was treated further before a decision was taken to cease resuscitation efforts.  Her death was reported to the Coroner because she died unnaturally in unknown circumstances.

The post mortem was inconclusive. At [2]:

The pathologist who conducted the examination opined that Ms Tunumafono most likely died from a fatal cardiac dysrhythmia, the cause of which could not be established.

The critical facts are set out in paragraph [7]. Ms Tunumafono collapsed sometime between 20:45 and 21:10 when she was discovered. CPR was commenced, and an ambulance called.  ACT Fire and Rescue attended (though their time on scene is not given).  The firefighters used an Automatic External Defibrillator to administer one shock. ACT Ambulance (ACTAS) arrived at 21:31. They did not administer any further shocks even though the ‘AED advised defibrillation at 21:24 (probably actually 21:31), and that the code summary from the ACTAS monitor (not supplied) showed VF [ventricular fibrillation] when the crew arrived (21:31)’.  The next use of a defibrillator was at 22:17 at hospital.

An independent expert, Associate Professor Drew Richardson, was commissioned to report on the emergency response by ACTAS. He said ([7]):

Based on the patient response at Calvary, there is doubt as to whether earlier defibrillation would have resulted in a stable heart rhythm, but based on the Ambulance Case Review there is no doubt it was indicated and not done at 21:31.  In assessing the prognosis of a relatively young patient with cardiac arrest, even if the heart responds to treatment, the neurological outcome is the usual determinant of survival.  The earliest that defibrillation could have occurred was 9 minutes after the ambulance call and approximately 20 minutes after the cardiac arrest, but may have been up to 45 minutes from the arrest.  At the lower end of this range the neurological prognosis was very poor; at the upper end survival would have been essentially impossible because of brain damage.  In my opinion, the delay in defibrillation was not a likely contributor to the cause of death.  Had defibrillation occurred when indicated, the prognosis would still have been very poor because of the prolonged time since collapse.

The Coroner accepted that there were failures in treatment in that there was a ‘failure to recognise the need to defibrillate when required’ ([11]) but that ‘these errors were not likely to have contributed to Ms Tunumafono’s death’ ([12]).  The Coroner (at [14]) made ‘no adverse comment in relation to any of the individual ACTF&R or ACTAS officers involved’.

The Coroner was satisfied that both ACTF&R and ACTAS had taken steps to resolve issues around the use of their defibrillators and to ensure ongoing training.

Discussion

The three Queensland inquiries are related as they are all deaths in police custody.  As noted I found them as I was asked to give a presentation in Queensland not because they are dramatic findings.  What causes me to put them together with the very recent findings of the ACT Coroner is that they show, in my view, the misguided view that is so often repeated to me in person or in comments on the website.

In discussions I have had people express fear about the use of defibrillators and potential liability should they fail.  Even more often is the fear of having to explain to the coroner why a person dies and the belief that any departure from any training will lead to criticism and liability.

Here are four cases, maybe a representative sample, maybe not, but in any event four cases that have come before the coroner where anyone with first aid training and experience can see that there are issues in the care provided.  Everyone who’s done a first aid course should know to put a person in the recovery position and to commence CPR.  People warn constantly about diverging from exact training but here police attempted to improvise an airway with a breathalyser tube and a doctor peformed a procedure that ‘was probably unorthodox based on the current CPR training’.

ACTF&R and ACTAS had difficulties working with each other’s defibrillators and the treating paramedics failed to administer a shock even when one was indicated.

But the coroner did not condemn the officers involved.  The cause of death was never the failure to provide proper CPR or use of a defibrillator.  The coroner looked at all the circumstances.  Everyone tried hard, and whilst one person’s conduct was described as ‘unreasonable’ the decisions and actions were understood.  No-one was recommended for prosecution and the coroner did not say that anyone was negligently contributed to the deaths under investigation.

Conclusion

I would hope that these examples may go some way to put people’s minds at rest and avoid the misconception that the courts and judges are just waiting to condemn first aiders, and paramedics, and the only thing that stops the judges for pursing their personal crusade to punish wayward first aiders is rigid adherence to protocols and special legislation.

For other cases where coroners did not condemn the emergency services personnel even though someone died see:

• Coroner’s review of response by ACT Ambulance (March 2, 2018)
• Coroner’s inquest into death of FRNSW firefighter (March 2, 2018)
• Coroner’s positive comments on the provision of first aid and ambulance response in the NT (November 16, 2017)
• NSW Coroner’s findings into Dungog floods (October 2, 2017)
• No adverse comments regarding paramedics following death of a woman in Ballarat, Victoria  (April 3, 2017)
• Coroner’s inquiry into the Wambelong (Coonabarabran) bushfire, January 2013 (September 29, 2015)

Of course it doesn’t always go that way.  For a coroner’s inquiry that was very critical of the response by the leaders of the emergency services, see:

• 2003 Canberra bushfires, the coroner and litigation (June 26, 2009)

Two cases involving volunteers with Victoria’s CFA raise the issue of the relevance of past misbehaviour and current risk, in this case to children.

Both UYU and LRB are CFA volunteers.  Both have extensive criminal records.  Both required ‘Working with Children’ clearances to continue their volunteer and other work.

UYU v Secretary to the Department of Justice and Regulation

In UYU v Secretary to the Department of Justice and Regulation [2018] VCAT 182 UYU had been convicted of manslaughter and attempted murder. He was sentenced for those offences in 1991. Subsequent to his release from prison he had obtained an Assessment Notice under the Working with Children Act 2005 (Vic).

In 2012 UYU had been refused an Assessment Notice but this had been set aside by VCAT.  An assessment notice, valid for 5 years was issued.  UYU had applied for a further notice.  By legislative change it was now the case that only VCAT could issue an appropriate working with children clearance ([4]), that is this was not an appeal from a refusal to issue a notice, VCAT was being called upon to make the initial decision. In deciding whether to issue an assemment notice, ‘the paramount consideration in all applications is the protection of children from physical and sexual harm’ ([2]).

In trying to predict the risk of future harm, the tribunal had 28 years of past behaviour to review.  At [50]-[51] Deputy President Lambrick said:

I accept that since the last hearing, UYU has not been questioned in relation to, nor has he been charged with or found guilty of any further offences. He has continued to be employed in the same company he worked for in 2012 and has continued to remain involved with his local CFA. He has two children of his own and is happily married. He remains actively involved in the lives of his wife and children and regularly volunteers at school for umpiring duties.

Importantly, for the past five years, UYU has held an Assessment Notice and has from time to time engaged in child related work without incident.

In considering the possible risk, the Deputy President heard from witnesses regarding UYU’s behaviour.  One witness (at [73]):

… was a fire brigade captain who had observed UYU training junior firefighters. He did not have any concern for the safety of those junior officers. He was apparently aware of UYU’s prior offending, the surrounding circumstances and the seriousness of those offences. Nevertheless, the positive experiences he had had interacting with UYU over the years allowed him to support UYU continuing in his role at the fire brigade including anything that may involve working with children.

In conclusion, Deputy President Lambrick said ([86]-[88] emphasis added):

I am satisfied that giving an Assessment Notice would not pose an unjustifiable risk to the safety of children. I am also satisfied that in all the circumstances it is in the public interest to grant the Assessment Notice.

It is clear that UYU is a person who through his volunteer work at the CFA is likely to provide benefit and advantage to junior firefighters as volunteers in the community. It is in the public interest that UYU continue to utilise his skills to volunteer in the community and to continue his employment. It is in the public interest for him to continue to supervise young firefighters and continue to engage in paid employment, where his doing so poses no risk to children.

In NJL v Secretary to the Department of Justice and Regulation (Review and Regulation) [2016] VCAT 749 at [60], I observed that it is in the public interest for an individual to engage fully in the workplace and broader community. It is in the public interest for a rehabilitated person to engage fully in the community when he or she does not pose a threat to children and there is no unjustifiable risk to children in their engaging with them. In HUD v Secretary to the Department of Justice (Review and Regulation) [2013] VCAT 331 at [96], the Tribunal found that there is public interest in permitting an individual to engage in paid employment, noting that engaging in work brings not only economic benefits, but reduces idleness, increases community participation and reduces social exclusion.

LRB v Secretary to the Department of Justice and Regulation

In LRB v Secretary to the Department of Justice and Regulation [2018] VCAT 1351 Deputy President Lulham had to consider LRB’s application for an assessment notice.  The Tribunal said (at [6]):

Between August and October 1997, when he was just over 18 and a half years of age but still attending secondary school in Year 11, he had sexual relations with a 14-year-old boy who was in Year 8 in the same school.

LRB was charged and entered guilty pleas to 10 charges of indecent assault and 6 charges of committing an indecent act with or in the presence of a child under 16.  He was (at [9]) ‘convicted of all charges, and was ordered to perform 175 hours of unpaid community work and to participate in psychological counselling as directed in respect of sexually related issues, under a community-based order’.  On appeal, the County Court allowed the appeal and imposed the same sentence but without recording a conviction ([10]). LRB complied with all the orders of his sentence.  In 1998 a Forensic Mental Health unit psychologist reported (at [11]) that there was no further risk and that LRB was no longer required to report to the unit for counselling.

The nature of the offences meant that the Secretary was required to refuse an assessment notice which was done.  LRB then applied to VCAT which does have the power to issue a notice.  At [18]:

… VCAT must not order that such an assessment notice be given unless satisfied, first, that giving the notice would not pose an unjustifiable risk to the safety of children, and, secondly, that all the circumstances it is in the public interest to do so.

The Deputy President considered the factors of LRBs offending and found that those factors were not to be trivialised or downplayed. There had been serious offending with dramatic consequences for the young victim.

In LRB’s favour was his conduct in the subsequent 21 years – ‘The Applicant has had an unblemished history, in the context of the criminal law, since the offences’ ([72]).  Further ([75]-[78]):

 … in about 2008 he sought employment with the Country Fire Authority and voluntarily disclosed his criminal history. He was not offered employment, which he put down to the disclosure. He then conducted some research and concluded, correctly, that his criminal history was not a barrier to volunteering with the Authority. He has now spent some 15 years as a volunteer with the CFA. During 2018 he was advised that the CFA was considering implementing a mandatory working with children’s check policy, and it was this that led the Applicant to apply for the working with children’s check and then to bring this VCAT application.

The Applicant wants to continue volunteering with the CFA and if he does not receive a working with children’s check his ability to do so will be severely curtailed.

In his evidence in chief the Applicant said that obtaining a working with children’s check was absolutely critical to him. He said that currently and in the current climate – by which he expressly meant the climate created by the exposure of churches and other organisations in the Royal Commission into Institutional Responses to Child Sexual Abuse – many organisations and employers require a working with children check when considering a person’s application for employment. The Applicant said he has been unemployed since November 2017, and that whilst he had had secure employment in the past, he cannot now even secure a basic job in the security industry because of the WWC Act. He has been denied employment with the Metropolitan Fire Brigade. He has been denied employment in the call centre in the Emergency Services Telecommunications Authority (“ESTA”) which administers the 000 telephone call facilities for emergency services, because the employer had concerns around the security of its database, a matter seemingly far removed from the objects of the WWC Act. The Applicant said he thought obtaining a working with children check would show potential employers that he was not a threat. Further, the Applicant wrote of these job applications, in his letter to the Tribunal dated 6 July 2018, that, “There has always been a fear in the back of my mind that my past will continue to follow me and prevent me from doing what I love, no matter what time passes and what employment I attempt to gain”.

The Tribunal has said in a number of previous decisions that the practice of employers seeking working with children checks as almost a default step in the recruitment process is inappropriate…

The tribunal went through evidence regarding LRB’s conduct to determine ‘that giving the notice would not pose an unjustifiable risk to the safety of children’ (Working with Children Act 2005 (Vic) s 26A(3) cited at [34]). When it come to the public interest the Tribunal said [134]-[137]:

First, there is a public interest in The Country Fire Authority having a body of enthusiastic and willing volunteers. Philip has observed that the Applicant “always” volunteers for activities in the CFA, which he said cannot be said for all CFA participants. The activities in which the Applicant participates in the CFA support the community.

In Maleckas v Secretary, Department of Justice [2011] VSC 227 Kyrou J said, at paragraph 90, that an applicant’s skills being of benefit to children could be taken into account as a public interest.

Secondly, Bell J has said that the right of persons to work and to exercise freedom of choice of work, and to engage in other civil activity, such as volunteering in a community organisation are legitimate interests worthy of protection. It is in the public interest for the Applicant, an adult of 39 years, not to be excluded from a wide range of employment opportunities. In practical terms, a person seeking employment has very little prospect of convincing a potential employer that the proposed job does not require the employee to have an assessment notice under the WWC Act, even if objectively that is so. The Applicant has given evidence that the WWC Act has limited his employment prospects in the past, and there is a public interest against the Applicant being excluded from the workforce.

Thirdly, there is a public interest in recognising, consistently with the comments made by Judge Macnamara in relation to the thinking of a reasonable person, that once a person has offended, he or she can be redeemed. The offences were committed around 21 years ago and the Applicant has been dealt with by the criminal law. There is a public interest in enabling the Applicant not to be punished again by the WWC Act.

Fourthly, the Applicant has been recognised by his three witnesses of displaying good character in the various periods they have known him. There is no evidence that the Applicant abuses alcohol or drugs, that he has thoughts of suicide or self-harm, or has anything that could be described as a psychiatric condition.

Conclusion

In the case of both LRB and UYU the Victorian Civil and Administrative Tribunal (VCAT) took seriously the obligation to consider the potential risk to children by allowing the applicants to obtain a working with children clearance.  Serious past offending is a concern but after 21 and 28 years respectively, a person is entitled to point to their post offending behaviour and have that considered when deciding whether they pose ‘an unjustifiable risk to the safety of children’.  If there is no appreciable risk then there is value for everyone in allowing them to contribute to the community in employment and in volunteer work, in both of these cases by continuing to volunteer with the CFA.

I have previously reported on the attempts by Mr Garth Duggan to retain his employment as a firefighter with Victoria’s MFB – see MFB firefighter sacked for conduct before his employment (August 7, 2017).  That earlier post was about a decision of the Federal Court of Australia which looked at whether or not the MFB had unilaterally changed a policy with respect to police checks. It was resolved that they had not.  As I say at the end of that post:

The result was that no-one really dealt with the issue at the heart of the matter – whether the outcome of the NSW Decision was really grounds to sack Mr Duggan.  … That is a rather unsatisfactory result because the question of whether pre-employment conduct can be a reason for dismissal in the probationary period was never properly tested. Commissioner Wilson said that it could not, the Full Bench and the Federal Court did not say whether he was right or not, only that the question was not properly before him.

Following the litigation discussed in the earlier post that was required to resolve legal issues with respect to the jurisdiction of the Fair Work Commission, the original application for unfair dismissal has been finalised – Garth Duggan v Metropolitan Fire and Emergency Services Board (MFB) [2018] FWC 4945.  The relevant question for the Commission was whether Mr Duggan’s dismissal was ‘harsh, unjust or unreasonable’ (Fair Work Act 2009 (Cth) s 385).

The grounds for the dismissal were that Mr Duggan was not a fit and proper person to be employed as a firefighter given his history of improper conduct as an osteopath and that had had been dishonest in his application for employment to the MFB.  Deputy President Masson dealt with those two grounds separately.

Fit and proper person

The conduct that saw Mr Duggan struck off as an osteopath had occurred in 2009-2010.  He had commenced with the MFB in February 2016, 6 years later.  There was no allegation of misconduct during his time as an employee of the MFB. The reasons given by the MFB for terminating Mr Duggan’s employment ‘were not in relation to the Applicant’s conduct as an employee of the Respondent’ but that prior misbehaviour.  At [131]-[133] Deputy President Masson said:

A number of the concerns raised by the Respondent [that is the MFB] appeared to be based on its speculation that the professional misconduct … could be repeated if the Applicant remained employed by the Respondent. I note that several years have elapsed since the incidents of 2009 and 2010. Further, the environment within which the Applicant was then employed, that of an osteopath providing private consultations, is in my view in almost all respects different to that in which the Applicant would be engaged as a firefighter. I am not persuaded that suspicions or fears the Respondent may hold regarding the future behaviour of the Applicant or the impact the Applicant’s employment may have on female recruiting efforts are valid reasons for his dismissal.

The Respondent also contends that as the roles of osteopath and firefighter are similar in certain respects, the findings of professional misconduct as an osteopath are directly relevant to his employment with the Respondent. Evidence adduced by the Respondent went to those similarities in terms of the required levels of trust and confidence, although Mr Higgins concedes the obvious differences between the two.

While I accept that patients must place a high degree of trust in a medical practitioner and that the community must also place a high degree of trust in firefighters in an emergency situation, the context and circumstances are very different in my view, arguably save for the EMR [Emergency Medical Response] requirements of firefighters. In the latter case of EMR, I am not persuaded however that a private consultation with an osteopath is directly analogous to the performance of EMR by a firefighter… the incidence of a firefighter performing EMR without other persons present are likely to be rare.

At [136] the Deputy President said:

It follows from the above that I do not accept that the Respondent’s grounds for dismissing the Applicant, that being he was a not a fit and proper person based on the NCAT [New South Wales Civil and Administrative Tribunal] findings, found a valid reason for his dismissal.

The Applicant was not dishonest during the recruitment process

Mr Duggan had disclosed, when asked, that he had been arrested and charged by police since turning 18.  That was all the information he was asked to disclose and the MFB failed to make any inquires as to why he had been arrested or the outcome of those proceedings.

At [140] the Deputy President said:

… had the Applicant’s arrest and criminal charge disclosures been properly investigated by it, the Applicant’s employment application with the Respondent would not have progressed. The fact that the Applicant would not have progressed through the recruitment process had the Respondent made proper enquiries does not retrospectively found a basis for dismissal or demonstrate any dishonesty on the part of the Applicant. I am satisfied that the Applicant’s failure to volunteer further information beyond his affirmative responses to arrest and charge questions did not constitute dishonesty.

Eight days before the NCAT hearing, Mr Duggan had an employment interview with the MFB.  Mr Duggan’s evidence (see [35]) was:

• While acknowledging the declaration that he had signed that day required that he not mislead or withhold information from the [MFB], he confirmed his belief that unless he was specifically asked a question during interview he was not obliged to disclose information.
• He acknowledged that in answering a question during the interview in relation to stressful events he had experienced in his life, he chose not to disclose either the criminal or NCAT proceedings faced despite having described those events in his earlier evidence as extremely stressful. He explained this non-disclosure as due to his expectation that he would be asked questions during the interview relating to those particular matters due to the disclosures he had made during psychological testing.
• While acknowledging having made particular statements during the interview which were recorded in the Interview Guide, he could not recall making certain other statements including “to walk away from osteopath” in response to a question regarding an important goal he had set for himself in the past. The Applicant asserted that particular reference did not make sense to him.
• The Applicant conceded that during his job interview he may have identified his osteopath skills as relevant to the firefighter position he had applied for. He rejected the proposition put to him that it was misleading of him to have identified his osteopathic skills as relevant when he was about to appear in the NCAT proceedings relating to the HCCC application for his disqualification as an osteopath.

With respect to those matters the Deputy President found that Mr Duggan failed to disclose details about the proceedings in NCAT because ‘he quite reasonably calculated that disclosure of the NCAT proceedings during his recruitment phase would damage his prospects of securing employment. That decision, however, ‘does not necessarily lead to a conclusion that he was dishonest’ ([143]-[144]).

The fact that Mr Duggan made specific reference to his skills and career as an osteopath did, however, constitute dishonesty.  At [150] the Deputy Commissioner said ‘I am satisfied that the Applicant’s conduct during his interview, in citing his walking away from osteopathy as an important goal that was achieved and identifying osteopath skills as relevant to his employment as a firefighter while deliberately withholding information of his looming osteopath de-registration proceedings, was dishonest.’

The Applicant was dishonest once employed

After Mr Duggan was employed, the NCAT decision, including an order that Mr Duggan not provide ‘health services’ was handed down. Mr Duggan did not bring this decision to the attention of the MFB even though an essential role of the modern MFB is to provide emergency medical services pending the arrival on scene of Ambulance Victoria.    At [167] and [169] the Deputy President said:

The Applicant in my view had an obligation to bring the NCAT Decision No. 2 to the attention of the Respondent. The Respondent reasonably concluded that the prohibition on “health services” impacted on the Applicant’s ability to perform EMR duties. At the very least the NCAT Decision No. 2 cast doubt on the Applicant’s ability to perform EMR duties. I am satisfied that the Applicant’s decision to not disclose the information was conscious and consistent with the approach adopted by him during the recruitment process. The significant difference however, from the Applicant’s pre-employment conduct, is that the NCAT Decision No. 2 which potentially impacted on the Applicant’s ability to perform the full range of firefighter duties was rendered on 17 March 2016 after he had commenced employment…

It was not the Applicant’s prerogative to determine whether the NCAT Decision No. 2 prohibition on “health services” allowed or prevented him from undertaking the EMR duties. I am satisfied that the Applicant’s failure to disclose the NCAT decision was in these circumstances a dishonest course of conduct engaged in by the Applicant to avoid impacting on his employment with the Respondent.

The Applicant was dishonest during the course of the MFB’s investigation

These allegations related to submissions made by Mr Duggan in response to various ‘show cause’ letters issued by the MFB that is when the MFB indicated that they intended to terminate Mr Duggan’s employment but gave him the opportunity to address the issues raised by the MFB.

The Commission found [183]-[184]::

I have considered the possible explanations for the Applicant’s inaccurate and misleading account of events to both the Respondent in his 8 May 2016 response and to the Commission in these proceedings. I prefer the explanation that he set about to mislead and deceive the Respondent …

I am satisfied that the Applicant… sought to create and persist with a version of events that was inaccurate and misleading. In my view, the Applicant sought to deceive the Respondent as to his knowledge of the NCAT proceedings, the timing of such knowledge and his response to those proceedings during the course of the Respondent’s investigation. I am satisfied that this behaviour of the Applicant was dishonest.

The Commission’s conclusion on whether there were grounds for dismissal

The Deputy President concluded as follows [189]-[191]:

I am not satisfied that the NCAT findings in themselves and the conclusions that the Respondent reached that the Applicant was not a fit and proper person based on that decision establish a valid reason for his dismissal. Nor am I satisfied that the Applicant was dishonest by not volunteering information beyond the affirmative responses he provided to the arrest and charge questions during the recruitment process.

I am however satisfied that the Applicant engaged in dishonest conduct during the recruitment, employment and investigation process. That dishonesty of which I have made findings above are that he:

1. disingenuously responded to questions during his formal job interview on 19 November 2015 in which he held out his osteopath skills as relevant to his application for a firefighter role and identified his having achieved a goal in walking away from osteopathy while failing to disclose the NCAT proceedings dealing with the HCCC application for his osteopath de-registration;
2. failed to disclose the NCAT Decision No. 2 of 17 March 2016 in circumstances where an order in that decision prohibited him from providing “health services”, such prohibition being directly relevant to his capacity to perform the full range of duties of a firefighter with the Respondent, specifically EMR; and
3. provided a false and misleading version of events to the Respondent during its investigation and to the Commission in his evidence as to the NCAT proceedings, the timeline of NCAT proceeding events and to his knowledge of those events relative to his recruitment by the Respondent.

The dishonesty engaged in by the Applicant was not a trivial or one-off event but can be seen as a pattern of dishonest conduct motivated by the Applicant’s concern that honest and candid disclosure would have threatened his employment with the Respondent. In the circumstances, I am satisfied that the Applicant’s dishonesty constitutes misconduct and establishes a valid reason for his dismissal.

The Commission then considered whether the MFB had met procedural and natural justice obligations and concluded that they had.   The order of the Commission was that the decision to terminate Mr Duggan’s employment was ‘… not harsh, unjust or unreasonable and consequently he was not unfairly dismissed’ [212].

Legal lessons

Honesty is the best policy.  Mr Duggan honestly answered the MFB’s questions on the application for employment.  The MFB failed to follow up on his answers.  Mr Duggan was not dishonest when he failed to volunteer information he was not asked for.

He was dishonest when he tried to ‘spin’ the story for his benefit.  To rely on his experience as an osteopath to show he was a suitable candidate for employment as a firefighter was dishonest when he was well aware of the proceedings against him and that he was at the time suspended from practice (and later ‘struck off’).

It was dishonest to deliberately withhold information that went to his capacity to perform the duties of a firefighter.  And it was dishonest to attempt to mislead the MFB about his knowledge and timing of the proceedings against him.

What is also important is that it was not his prior conduct that meant he could be dismissed.  Conduct that occurred 6 years earlier in very different circumstances may have been grounds not to employ him, but having made the decision to employ him, they were not grounds to dismiss him.   In these days of ‘law and order’ auctions there is the aphorism that ‘if you do the crime, you should do the time’.  There should one hope also be a view that if you have done the time you should be allowed to get on with your life or punishment becomes universal and forever and continues to impose costs on the community.   A punishment was imposed by NCAT and it was that Mr Duggan not practice as an osteopath, not that he never work again.

Conclusion

Mr Duggan’s misconduct 6 years before he was employed by the MFB did not mean that he was not a ‘fit and proper’ person to be employed as a firefighter.  His dishonest dealings with the MFB in failing to advise them of his changed circumstances when NCAT banned him from working in health care and then attempting to mislead the MFB about what he knew and when about those proceedings were, however, sufficient grounds to warrant his dismissal.

Given the number of cases and appeals in this matter, I would not be surprised if this was not the end of the matter.  Unless and until there is an appeal, however, Mr Duggan’s dismissal stands.

This question again revisits the issue of people holding skills and qualifications beyond their current expected scope of practice.

The short answer (before I even get to the question) is ‘no-one is going to reward you for letting someone die when you can stop it.’

The question is:

What about dual qualified paramedics who are also registered nurses

Can they practice their skill set in an emergency department when employed as a registered nurse?

Say for instance a country nursing post. If the patient required intubation or cardiac pacing, which are invasive skills and not in a nurse’s scope of practice, can a paramedic initiate this treatment?

Dual qualified nurses who are also midwives can practice midwifery in the emergency department when employed only as a nurse. Just wondering if the same would apply to paramedics.

Remember that the Health Practitioner Regulation National Law works through protection of title, not strictly defining ‘scope of practice’. Your ‘scope of practice’ is defined by your training and to a lesser extent your employer. An employer cannot however limit a practitioner’s scope of practice to the extent that the practitioner would be guilty of “Unprofessional conduct” (that is “professional conduct that is of a lesser standard than that which might reasonably be expected of the health practitioner by the public or the practitioner’s professional peers…”) if they complied.

A registered paramedic is a registered paramedic even if today they are working as a nurse.  They still know what they know, they still have the skills they have.  If a paramedic was working in an emergency department and had the equipment required to perform a task that was within his or her skill set why would anyone not do it?

Imagine you are the patient’s family and the person dies. You find out that the nurse on duty was also a paramedic and knew how to intubate, had the equipment, the procedure was not contra-indicated but they refused to cover their employers or their own arse.  Ask yourself how persuasive this argument is: ‘today I’m employed as a nurse but I would rather see your family member die than get into trouble’. Are you going to complain about that person and sue the hospital, or are you going to complain about the person who tries even if it doesn’t work?

Putting aside that emotive question, the registered paramedic will be expected to perform to the standard expected of a paramedic.  If a panel or tribunal was satisfied that the ‘public or the practitioner’s professional peers’ would expect a paramedic to act to save his or her patient with a procedure was within their skill set, not contra-indicated and where they had the equipment, then the paramedic may be guilty of unprofessional conduct no matter what badge he or she is wearing today.  I can’t see that it makes a difference the patient relationship began as a nurse/patient. The nurse/paramedic still has a duty to act in his or her patient’s bests interests and that must include using all the skills and knowledge that they have.

 

Today’s correspondent, from WA, asks about

… mandatory reporting for suspected child abuse in the pre-hospital setting.

This is mandatory for registered nurses when clinically assessing a patient, just wondering where Paramedics now stand.

Using WA as the exemplar, the Children and Community Services Act 2004 (WA) s 124B says:

A person who —

(a) is a doctor, nurse, midwife, police officer, teacher or boarding supervisor; and

(b) believes on reasonable grounds that a child —

(i) has been the subject of sexual abuse that occurred on or after commencement day; or

(ii) is the subject of ongoing sexual abuse;

and

(c) forms the belief —

(i) in the course of the person’s work (whether paid or unpaid) as a doctor, nurse, midwife, police officer, teacher or boarding supervisor; and

(ii) on or after commencement day,

must report the belief as soon as practicable after forming the belief.

(The commencement day referred to in (b)(i) and (c)(ii) above is ‘the day on which the Children and Community Services Amendment (Reporting Sexual Abuse of Children) Act 2008 section 5 came into operation’ that is 1 January 2009).

This Western Australian Act makes it mandatory to report sexual abuse, not all physical or emotional abuse.)

The list does not refer to ‘registered health professionals’ so does not extend to paramedics.  Whether the legislature will choose to amend the Act once paramedic registration is in place remains to be seen.  There are however 15 registered health professions (including paramedics) and only 3 (doctor, nurse and midwife) are listed so there is no guarantee that the necessary change will be made or is intended.  Whether paramedics are mandatory reporters in other jurisdictions will depend on the specific terms of the legislation in that jurisdiction.

Just because paramedics are not listed as mandatory reporters does not mean that they cannot report their fears regarding child safety – see Discovering crime during an emergency response (July 19, 2016) and the other posts referred to there, in particular Paramedics and Patient Confidentiality number 2 (July 23, 2015)).

The ABC is reporting on defective medical devices including a defibrillator that has been widely used, and remains in use, even though it has been removed from the Australian market – see Alison Branley, Mario Christodoulou, Inga Ting and Sophie Scott, ‘The Implant Files reveal defibrillators pulled from market still being used in emergencies’ Background Briefing (Online) 26 November 2018.

Associate Professor Bonython from the School of Law & Justice at the University of Canberra is quoted as saying:

“They [ambulance services] are going to be liable if the device fails and costs a life or causes injury to either a paramedic or a patient,” Associate Professor Bonython said.

I appreciate that when being interviewed, much of what is said is omitted from the program or report, but as a simple statement I would disagree with it.

We’re told that the defibrillator in question ‘has been the subject of more than 100 “adverse events” since 2012 … such as failing to shock, turning off unexpectedly and trouble pacing heart rhythms’.  It has been ‘has been linked to at least one death’ but we don’t know quite what that means.  The TGA:

… pointed out that defibrillators were used in cases of heart failure, a situation where death was a high possibility.

“The reporting of an adverse event associated with the use of a medical device does not mean that the device in question caused the adverse event.”

The article also quotes Professor John Skerritt, the TGA’s deputy secretary, who:

… acknowledged there were issues with the device, but said the regulator had no choice but to work with Philips to phase out the device by 2022.

“[What] we’ve heard from the state ambulance departments was that if all those products just came straight off the market now, they wouldn’t be able to have defibrillators in many ambulances just because of the sheer costs,” he said.

On the question of liability, a plaintiff would have to prove that the failure of the device ‘caused’ their death. If they were in cardiac arrest proving that it is more likely than not (ie on the balance of probabilities) they would have survived had the machine worked would be virtually impossible.  Defibrillators may improve the chance of survival, they don’t guarantee it.

If the defibrillator caused burns to the patient that may be a different matter but the mere poor outcome does not prove negligence.

As for injuries to the paramedic, workers compensation is a no fault scheme so naturally the service will be liable if a defibrillator or any equipment causes injury to a patient.  But again that does not prove that it is negligent to keep the machines.  In determining whether there is negligence a court must consider (Civil Liability Act 2002 (WA) s 5B(2)):

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

(b) the likely seriousness of the harm;

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

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

So how likely is the machine to fail.  What are the consequences remembering that if it fails to shock it’s not actually causing the patient harm, but it may fail to contribute to a better but unlikely outcome.  If the only precaution is to remove the machine and that leaves the ambulances with no defibrillator that is a much higher risk and will be associated with many more adverse outcomes than having a machine that sometimes fails.  And the social utility of having defibrillators in ambulances may be such that it is worth ‘the risk’.

Conclusion

The statement “They [ambulance services] are going to be liable if the device fails …” is far too simplistic to be accepted.  It may be an edited version of what Associate Professor Bonython and it makes good press to reinforce urban myths about liability, but it is not necessarily correct.

 

 

Today’s correspondent says:

I guess that you may’ve already been flooded with requests for an explanation on this. I saw your presentation at the most recent RFSA Conference where you briefly discussed this case, with recent developments, any chance you could provide us concerned observers with any additional comments?

The Cottage Point community and Ray Hadley are supporting Oliver. Why has the NSW RFS and the NSW Government abandoned him. 100,000 reasons NOT to join the NSW Rural Fire Service. Urgent reform is needed. https://volunteerfirefighters.org.au/ray-hadley-supporting-oliver

The issue relates to the prosecution of an RFS volunteer for Dangerous Driving, the details are set out below.  I have not been ‘flooded with requests’ on this matter but I have made some comments on it, see

• Welcome back and best wishes for 2018 (January 7 2018) and
• Volunteers before the courts – when and why? Presentation at NSW Rural Fire Service Association Annual Conference, Sydney 7 July 2018.

The problem with making a comment on the matter is that I have no definitive (read judicial) description of what happened. The matter may have been heard in both the NSW Local Court and the NSW District Court but neither the decision of the magistrate nor the judge has been published (see Accessing a judge or magistrate’s reasons for decision (November 18, 2016)).  All I have is what the VFFA has written and with respect that is clearly only one side and what is more it confuses the role of the police and RFS.

With that limitation in mind I’ll reproduce what the VFFA says are the Key Events in a Timeline and make comment on them.

VFFA Timeline My comments on legal issues Hazard Reduction scheduled and commenced on Thursday the 20th of November 2016. Deputy Captain Oliver _______ was on route to his station to attend. The road to the fire station was the only road to access. Oliver was required to enter the fire ground in his private vehicle after clearly identifying himself to traffic controllers who had closed the road to the public. Oliver arrived at his fire station to be formally asked by the Officer-in-charge of the Hazard Reduction, DFCO, Inspector … to stand down from starting his shift and wait inside the fire station. Police were called. Oliver enquired as to why Police had were called. Inspector …said that a complaint had been made against Oliver and Police are to investigate. No further detail was shared. Police are responsible for law enforcement.  If a complaint of illegal conduct has been made it is appropriate to pass that onto police.  The RFS is in a difficult position. It may want to support its members but it cannot be seen to shield them from the criminal law.  Asking the member to explain their position may well put the Inspector in the position of a witness who could be compelled to give evidence if the member made any admissions.

As noted below the initial complaint was made by another RFS member. That adds to the difficulty because if the RFS refused to act on the complaint that member would also feel disgruntled.  Passing the matter to an independent investigator (ie police) may have been a very reasonable thing to do.

This was not an area where ‘natural justice’ is required as the RFS is not the agency taking action.  They pass it onto police and it is up to police to investigate and to work within the boundaries of natural justice (discussed further, below)

Without more detail it is impossible to conclude that this was inappropriate. A Police Officer from Highway Patrol interviewed Oliver (in private) at fire station offices. Appropriate.  It is noted that the RFS did not ask the driver for his version of events but that is the point of a police interview, remembering that a person being interviewed by police is under no obligation to answer the police officers questions.

This is where the natural justice obligation, to allow the driver the opportunity to respond to the allegation, was met. No charges or arrests were made. The Police officer spoke with other RFS staff at the fire station and left. The police were not required to issue any proceedings at that time. In NSW, prosecution for summary matters (including minor traffic matters) must be commenced within 6 months of the date of the alleged offence (Criminal Procedure Act 1986 (NSW) s 179). After the Police Officer left, Inspector … held a meeting with Oliver and his Captain. Oliver was informed that a complaint against him had been made by an RFS member, alleging he had drove past another RFS member traveling somewhere between 70 to 80km/h – this was the first time Oliver had been told what he had allegedly committed. We can’t know if that ‘was the first time Oliver had been told what he had allegedly committed’ because we are not told what was said during the police interview.  I find it hard to believe that the police did not communicate the nature of the allegation.

But it would seem appropriate for the RFS to explain the position after the police interview and in the presence of the members captain in order to reduce the risk that the member would make admissions (no doubt having been cautioned by police) and that those members would then be in a position where they may be witnesses. Almost 4 months of silence from both NSW Police and the RFS. Oliver was later charged by Police with Dangerous Driving to appear in Local Court in May 2017. The decision to prosecute would be a matter for police, not the RFS.  As noted the police had 6 months to commence proceedings.

On their facebook page, the VFFA say:

“… some members of the NSW Police who were not involved in the investigation remarked that they would not be interested in this matter because a Police Officer was “not there, they did not see it and no one was injured”.

The same Police Officers also remarked that “no one can judge speed, only the Police. Not the RFS”.

That is irrelevant. The decision to prosecute rests with the investigating officer, and is a discretion held by him or her alone.  It is irrelevant that others police ‘would not be interested’ and no doubt they did not investigate the matter.  We do not know what the person who made the initial complaint observed and what information they were able to give police.

As for the comment “no one can judge speed, only the Police. Not the RFS” that is simply not true.  We all judge the speed of other vehicles all the time and we can make assessments to estimate the speed of a vehicle or whether in all the circumstances the observed driving was dangerous.  The weight of that evidence in court will vary in all the circumstances but it’s not true that only a police officer can give that evidence. In this case we are told that it was another RFS member who reported what he or she perceived was dangerous driving so it’s not the case that it was ‘the RFS’ that made an assessment of the person’s speed. A lengthy 4 day Local court hearing concluded with Oliver being found guilty. The role of police is not to determine whether someone is or is not guilty of an offence.  Their job is to collect evidence and if there is a prima facie case, to put the matter before a court for a judicial officer to determine.  In this case, it must be that the magistrate was satisfied that the prosecution had proved its case beyond reasonable doubt.

Magistrates are not simply the mouthpiece of police so he or she would have considered the evidence, whatever that evidence was, to reach that conclusion. Oliver immediately appealed and on the 3rd of October 2018, District Court Judge Paul Conlan quashed ALL charges against Oliver. He was completely exonerated. We do not know the basis of the Judge’s decision, as the reasons are not published. The right of appeal exists because judicial officers do get it wrong, sometimes getting the law on evidence or the law about the offence wrong, sometimes misunderstanding the evidence etc. Oliver has applied twice for ex-gratia assistance from the Commission of the RFS. One was rejected and the second request with no reply to date (3+ months). Service Standard 1.1.24 deals with Assistance in legal matters for Members of the NSW RFS.  That standard notes that ‘The provision of legal representation is discretionary. That is, there is no automatic right of legal representation’.

We do not know why the application was rejected or at what level.  The final approval rests with the Secretary of the Department of Justice, not the Commissioner. After Oliver applied the first time for ex gratia assistance, the RFS suspended his RFS membership (Oliver had only been charged at this stage, not attended local court) stating the reason he was found guilty of a criminal charge. A person may be removed from the RFS if they are ‘convicted in New South Wales of an  offence  that is punishable by imprisonment for 12 months or more …’ (Rural Fires Regulation 2013 (NSW) r 7). Being charged is not equivalent to being convicted.

It is not clear what offence the driver was charged with. The offences of ‘dangerous driving’ in the Crimes Act 1900 (NSW) s 52A relate to ‘dangerous driving causing death’ or ‘grievous bodily harm’. I infer they are not relevant.

The most likely offence would be under the Road Transport Act 2013 (NSW) s 117 which says ‘A person must not drive a motor vehicle on a road furiously, recklessly or at a speed or in a manner dangerous  to the public.’  The maximum penalty ofr a first offence is 20 penalty units or 9 months imprisonment.  For a second offence, the maximum penalty is 30 penalty units or 12 months imprisonment.  This would be a relevant offence for the purposes of r 7 of the RFS regulations if it was a second offence.  We do not know this driver’s traffic history.

Because this offence is an offence under the Act, the exemption from the Road Rules (Road Rules 2014 (NSW) r 306) has no application. After reviewing the RFS’s own Standard Operation Procedures for RFS Volunteer’s, Oliver’s solicitor successfully appealed his suspension and he was re-inducted as a RFS volunteer with full rights again. It would appear that the RFS made, and accepted that it made, an error. At no stage since the alleged incident (over a 2 year period), has anyone from the NSW Rural Fire Service Head Office or even locally at Northern Beaches RFS District, been in contact with Oliver to check on his wellbeing. To date, Oliver has had zero support from the RFS. Now cleared of all charges, Oliver faces legal bills of over $100,000.

What is missing (and appropriately missing) is any statement by the driver or the VFFA as to what the driver’s response to the allegation was.  Did he deny driving as alleged or was the defence simply that the prosecution did not have evidence to prove it?    As a lawyer I understand and accept an accused person’s right to put the Crown to their proof.  If the Crown cannot prove their case the accused is entitled to an acquittal.

I say it is appropriate for the VFFA not to say what the driver’s response is as the driver is not required to give an explanation or respond to allegations here or anywhere else.  Further, if there were incriminating statements made they may be able to be used against him.   One has to remember that even if this member says he was not driving as alleged, another member says he was and that must put the RFS in an invidious position.

The VFFA says:

The VFFA is deeply concerned that this case sets a precedent; Volunteer Firefighters can be subject to prosecution if salaried staff, without question or any internal investigation, call the NSW Police to report alleged actions of a Volunteer Firefighter based on hearsay.

In legal terms, the case sets a precedent for nothing.  Volunteer firefighters can be subject to prosecution if a complaint is made to police and police determine that there is a case to answer.  The subtext of the quote, above, is that the only reason this person was charged was because the RFS inspector rang police. That denies the agency of the police officer that is the decision to commence prosecution was his or hers alone, and it denies the role of any other person involved including the other RFS volunteer that made the complaint.

The prosecution would not and could not proceed on the basis of hearsay evidence alone.  The VFFA say that there was ‘A lengthy 4 day Local court hearing’.  There must have been evidence (even if later rejected by the District court) that extended beyond an inspector saying ‘I was told …’  I would infer that the person who observed the driving gave evidence, and that would not be hearsay.  We don’t know what other evidence the Crown relied on as we don’t have either the Local Court Magistrate’s or the District Court Judge’s reasons to read.

With respect to reporting a matter to police there is no requirement for an ‘internal investigation’ by the RFS and that may indeed be detrimental to the member if he or she made admissions without the formal protections that must apply when being interviewed by police.  It may also have negative impact if the RFS is seen to be judging whether someone is guilty of a criminal offence when that is not the role of the RFS.   An allegation of criminal conduct was made and passed to police for investigation.  That seems appropriate to me.

The VFFA’s position is entirely one sided (which may be expected as an advocacy organisation).  No doubt the RFS inspector, the informant police officer, the person who first reported concerns about the driving and the RFS Commissioner would have different versions of what happened and explanations for their decisions.  There is no attempt to explain their position.  Because it is so ‘one sided’ it is hard to draw any meaningful conclusions as to anyone’s conduct.

The VFFA also says:

Every single NSW Rural Fire Service Volunteer is at risk if they receive either a pager or phone call seeking their attendance at their local NSW RFS Fire Station, and in order to get there they drive in their private vehicle along a public road, and the road forms part of a ‘Fireground’, then that Volunteer Firefighter is at risk of being accused of speeding, driving through smoke without their hazard Lights on or being on the ‘Fireground’ without approval – even if the traffic controllers allow them to proceed.

Without access to the decision of the District Court Judge one cannot make those inferences.  They are at risk if a person makes a complaint to police and police form the view that there is sufficient evidence to justify a prosecution.  The only lessons that can be drawn are:

1. If police believe they have sufficient evidence you can be charged with an offence;
2. The police and courts don’t always get it right.
3. Just because a person is charged with an offence, it does not mean they are guilty.

Those lessons apply to everyone, everyday.

Conclusion

The problem with all the VFFA statements in this matter is they lack sufficient detail to make any informed comment on the matter. What we can know is that, at the end of the day, the driver was acquitted and he is entitled to the benefit of that decision. That obtaining an acquittal is long, arduous and expensive is indeed a tragedy in today’s legal system but at least the courts do give the opportunity to defend allegations and appeal against decisions that are wrong in fact or law.

The issue of a patient’s refusal of medical care, and in particular the right of a mentally ill person to refuse care, arises often on this blog.

Last month, in PBU & NJE v Mental Health Tribunal [2018] VSC 564, Justice Bell of the Supreme Court of Victoria had two consider whether two people could refuse electroconvulsive treatment (‘ECT’) that had been ordered by the Mental Health Tribunal on the recommendation of their treating doctors.

This is a long post but it is important to remind everyone the important value that the law places on personal integrity and a person’s right to choose and to make decisions, even bad decisions, for themselves.

The issue

Under the Mental Health Act 2014 (Vic) a person is presumed to be capable of giving consent until it is established that they cannot.  At [77]-[78] Bell J said:

It would be discriminatory and a grave violation of human rights to regard a person having mental illness as lacking capacity to give informed consent merely because the person has that illness and the legislation does not operate upon this basis. Section 70(2)provides that anyone seeking the informed consent of another to treatment or medical treatment must presume that the other person has the capacity to give informed consent…

If the treatment does not involve ECT or neurosurgery, the authorised psychiatrist may make a compulsory treatment decision if satisfied that no less restrictive treatment option is available (s 71(3)), even if the person has capacity to give informed consent and refuses to give it…   

What follows is that where a person is able to give informed consent they may still be subject to compulsory mental health treatment even if they refuse that consent.  The exception to that rule is in neurosurgery to treat a mental illness and ECT. With respect to ECT, compulsory treatment can only be ordered if the person is incapable of given informed consent; not where they are capable and refuse consent.  The issue of what it means to be ‘capable’ to give consent was therefore critical in this case.

Legal rights

 Victoria has Charter of Human Rights and Responsibilities Act 2006 (Vic) that is intended to give effect to rights recognised by the international community through instruments such as the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights and the Convention on the Rights of Persons with Disabilities.  One of the rights is the right to be free from medical treatment without consent.  At [122]-[123] Bell J said:

The right to be free ofnon-consensual medical treatment is specified in s 10(c) of the Charter [of Human Rights and Responsibilities Act2006 (Vic)] thus:

“A person must not be— …

(c)        subjected to medical … treatment without his or her full,free and informed consent.”

In Kracke [(2009) 29 VAR 1], the following remarks were made about the general nature and purpose of this right:

‘Personal autonomy is a value that informs much of the common law.’ An example is that, when the common law is considering the duty of a doctor to warn a patient about the possible adverse effects of medical treatment, the starting point is ‘the paramount consideration that a person is entitled to make his own decisions about his life’. That should be the starting point under s 10(c) of the Charter. Forcing a person of full mental capacity to have unwanted medical treatment is a serious affront to their personal dignity and autonomy in itself. The fact the treatment may be medically warranted is not at this stage the point. Remember, we are dealing here with people who, though mentally ill, still have full legal capacity [or are presumed to have that capacity]. The right to refuse unwanted treatment respects the person’s freedom to choose what should happen to them, which is an aspect of their individual personality, dignity and autonomy.

The right is especially important in the context of treating someone for mental illness. People can be extremely sensitive about taking the powerful drugs that are often prescribed. However medically necessary they may be, the drugs can cause alterations to mood, behaviour and body weight, as well as personal appearance, which can be very distressing. As [was submitted], such drugs can affect the very ‘reality’ in  which a person lives. Section 10(c) of the Charter recognises the importance of this right to refuse, because it respects the personal dignity and autonomy of people with mental illness.

The judge made these comments about the right to refuse or the obligation to obtain consent at common law.  The quote is long but worth repeating:

Principles of common law and human rights regarding capacity

Self-determination and personal autonomy

Self-determination is a fundamental value that is protected by the human right to privacy, among other rights (see above). It is also well-established in the common law. In Airedale NHS Trust v Bland, Lord Goff held that ‘the principle of self-determination requires that respect must be given to the wishes of [a] patient’ to consent to or refuse medical treatment.In doing so, his Lordship referred to the illuminating judgment of Hoffmann LJ in the Court of Appeal, which drew attention to the close connection between ‘respect for the individual human being and in particular for his right to choose how he should live his own life’ and ‘respect for the dignity of the individual human being’ which is ‘an intrinsic value’.

The close connection between self-determination and human dignity explains the importance of self-determination to the individual personally. So important to the individual personally is it that Robins, Catzman and Carthy JJA in Malette v Shulman held:

Individual free choice and self-determination are themselves fundamental constituents of life. To deny individuals freedom of choice with respect to their health care can only lessen, and not enhance, the value of life.

In Heart of England NHS Foundation Trust v JB, Peter Jackson J, after referring to the significance of a person’s ‘own system of values’ when deciding whether to consent to or refuse medical treatment, said ‘[t]he freedom to choose for oneself is a part of what it means to be a human being’.

The principle of self-determination is at risk when decisions about capacity are being made, including in relation to people with mental disability. While a person may need access to medical treatment, a person having capacity can decide to refuse the treatment even if it is medically necessary (see below). If medical treatment is compulsorily administered to the person because the person’s capacity for self-determination is incorrectly not recognised or denied, this ‘severely infringe[s] upon [the] person’s right to self-determination’, because ‘[t]he right to refuse unwanted medical treatment is fundamental to a person’s dignity or autonomy’. For the individual, capacity decisions therefore involve very high stakes.

Personal inviolability and the civil/criminal law

Personal inviolability too is a fundamental value that is protected by the human right to privacy, among others(see above). It too is a fundamental principle of the common law. Thus, in Collins v Wilcock, Robert Goff LJ said that ‘[t]he fundamental principle, plain and incontestable, is that every person’s body is inviolate’. In Marion’sCase, Mason CJ, Dawson, Toohey and Gaudron JJ referred to the ‘fundamental right to personal inviolability existing in the common law’.

Under principles discussed byWilliam Blackstone, the common law does not draw distinctions between degrees of violence. Therefore the merest touching of a person is unlawful unless justified, and the position is the same under the human right to privacy.Vindication of human dignity is the purpose of the common law in this respect.It follows that, except in cases of emergency, to administer medical treatment to a person’s body without the person’s consent, if the person has the capacity to give consent, is a civil and criminal assault or battery. This, explainedMason CJ, Dawson, Toohey and Gaudron JJ in Marion’sCase:

reflects the principle of personal inviolability echoed in the well-known words of Cardozo J in Schloendorff v Society of New York Hospital:

‘Every human being of adult years and sound mind has a right to determine what shall be done with his own body; and a surgeon who performs an operation without his patient’s consent commits an assault’.

Making the connection between self-determination and personal inviolability, in R (B) v Dr SS Charles J held emphatically that

the right to integrity of the person and the right to self-determination are fundamental human rights …Medical treatment is always an interference with the first of these rights, the right to integrity of the person, and constitutes an unlawful assault and battery in the absence of some lawful justification for it …

Putting aside emergency cases, it is the consent of the patient that makes the medical intervention lawful when it would otherwise be unlawful. In Re T(Adult: Refusal of Treatment), Lord Donaldson MR (Butler-Sloss and Staughton LJJ agreeing) said that a person who is capable of exercising a choice ‘must consent if medical treatment of him is to be lawful’. The application of this principle is graphically illustrated by the judgment of theOntario Court of Appeal in Malette. An award of damages against a doctor was upheld because he committed the tort of battery by treating an unconscious but capacitous patient without his consent when his lack of consent had been made manifest. It was no justification that, without the treatment, the patient’s life would have been threatened.

The appropriate test for capacity, both at common law and under the Victorian legislation, 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’ (see [154]).  It is not an outcome test that is whether it is a good or wise decision. At [164]-[166] and [170]-[172] Bell J said:

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 MentalCapacity 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 DonaldsonMR (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’sCollege 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 ofEngland NHS Foundation Trust and WyeValley 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.

The mentally ill

In PBU & NJE the issue was a person who was mentally ill refusing treatment and that may affect their capacity to understand the information being given.  His Honour summarised the relevant legal principles at [206]:

(1)        The primary purpose of the Mental HealthAct is to ensure that people with mental illness, including those lacking the capacity to give informed consent, receive treatment for that illness (s 1(a);see also ss 10(a), 10(f), 11 and especially 72). But the legislative intention is that this is to be done in a manner that affords equal respect for their human rights and particularly their right to self-determination, to be free of non-consensual medical treatment and to personal inviolability, as recognised in the Charter.

(2)        Consistently with affording that respect and the position at common law for people generally, there is a (rebuttable)presumption that people with mental illness (as for people without that illness) have the capacity to give informed consent (s 70(2)). Capacity to give informed consent is issue-specific (s 68(2)(a)), can fluctuate (s 68(2)(b)) and may be enhanced with support, all of which may have significant implications for the capacity-assessing process and the ultimate determination.

(3)        Reflecting the common law, the test of capacity in s 68(1) is primarily a functional one in which the question is whether the person has the ability to remember and use or weigh relevant information and communicate a decision, not whether the person has actually done so (paras (b), (c) and (d)). The purpose of the functional test (as distinct from a status or outcome-based test) is to ensure that, in relation to capacity to give informed consent, people with mental illness are afforded the same respect for their inherent dignity and autonomy-space as people not having that illness. In relation to s 68(1)(a), the question is whether the person understands the information.

(4)        The capacity test must be applied in anon-discriminatory manner so as to ensure that people with mental illness are not deprived of their equal right to exercise legal capacity upon the basis of contestable value-judgments relating to their illness, decisions or behaviour, rather than upon the basis of the neutral application of the statutory criteria(s 68(2)(c)). In short, the test is not to be applied so as to produce social conformity at the expense of personal autonomy.

(5)        A person with mental illness is not to be found lacking the capacity to give informed consent simply by reason of making a decision that could be considered unwise (s 68(2)(d)), which recognises that self-determination is important for both dignity and health and that people with mental illness should have the same dignity of risk in relation to personal healthcare decision-making as other people. This reflects the two-way relationship between self-determination, freedom from non-consensual medical treatment and personal inviolability on the one hand and personal health and wellbeing on the other.

(6)        Reflecting human rights consideration, the Mental Health Act rejects the best-interests paradigm for healthcare decision-making. Those assessing capacity under s 68(1)–(2) must vigilantly ensure that the assessment is evidence-based, patient-centred, criteria-focussed and non-judgmental, and not made to depend, implicitly or explicitly, upon identification of a so-called objectively reasonable outcome.

(7)        The threshold of capacity in s68(1)(a)–(d) is relatively low and requires only that the person understands and is able to remember and use or weigh the relevant information and communicate a decision in terms of the general nature, purpose and effect of the treatment.The threshold is not that the person understands the information sufficiently to make a rational or well-considered decision, is able make such a decision or has actually done so. The person does not need to have an understanding and possess those abilities in terms of the actual details of the proposed treatment but only the salient features.

(8)        Acceptance of, belief in and insight into the diagnosis of illness and need for treatment varies significantly depending upon the person and the situation. It is not a normative criterion ins 68(1)(a)–(b). Depending upon the facts of the case, a person with mental illness may lack that insight or otherwise not accept or believe that the person has a mental illness or needs treatment yet may have the capacity to give informed consent when assessed under the statutory test. The opposite maybe so.

(9)        …

(10)      The provisions of the Mental Health Act are predicated upon the central purpose of ensuring that persons with mental illness have access to and receive medical treatment, consistently with the person’s right to health. Where, consistently with the above principles, it is established that the patient does not have the capacity to give informed consent and there is no less restrictive way for the patient to be treated, VCAT must grant an application for ECT (s 96(1)(a))because, under the legislative scheme and subject to its safeguards, this is a necessary means of ensuring that the patient is given that treatment.

His Honour found that both PBU and NJE did have capacity to give informed consent but declined to do so. Their decision had to be respected and ECT could not be administered as part of a compulsory treatment order.

Discussion

This case has limited application to paramedics and others.  In some jurisdictions paramedics have authority to detain a person and transport them to a mental health facility.  As noted above compulsory treatment can be given even where the patient can consent but refuses to do so (provided the relevant criteria in the state or territory legislation is established).  It is only in the case of neurosurgery or ECT that the patient’s refusal is binding and paramedics aren’t administering that treatment.

The reason for this long post is therefore not for the specific issues but the broader principles.  On this blog there are many questions about treating people without consent, where consent has been refused, where the person is incapable of giving or refusing consent or where the person appears to be mentally ill and a danger to themselves or to others.

What this case repeats is that the right to make decisions about medical treatment is a fundamental right and the relevant question is the persons capacity to understand the nature and effect of the proposed treatment, not whether the decision appears, in the eyes of someone else, to be smart and sensible.  The right to bodily integrity and the right to choose are fundamental rights protected by law.

In the course of this judgement Bell J put aside the emergency case, but an emergency does not mean the patient’s wishes can be disregarded. In this case His Honour was not dealing with an emergency so did not discuss the case law but I would go back to Lord Goff’s statements in In Re F [1990] 2 AC 1 (emphasis added):

Upon what principle can medical treatment be justified when given without consent? We are searching for a principle upon which, in limited circumstances, recognition may be given to a need, in the interests of the patient, that treatment should be given to him in circumstances where he is (temporarily or permanently) disabled from consenting to it. It is this criterion of a need which points to the principle of necessity as providing justification.

That there exists in the common law a principle of necessity which may justify action which would otherwise be unlawful is not in doubt…

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

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

Where it is known that a person has, when competent, refused consent for treatment in the circumstances that have now arisen, that decision must be honoured. 

Putting aside the question of mental illness one can see how important this is for paramedic practice.  There is often discussion about a person’s right to refuse treatment including lifesaving treatment such as CPR. A paramedics job is not necessarily to save someone’s life but to respect their right to integrity and autonomy. 

If we are not willing to honour people’s wishes at the end of their life, at the very time those wishes are expected to be honoured, when those wishes are most important then the issue of consent and the right to bodily integrity becomes meaningless.  If a refusal is only honoured when it doesn’t really matter or when the treating professional thinks it makes sense to them, then we are moving back to medical paternalism and away from what is important to us all, the right to make choices for ourselves.

Note also the discussion on the ‘dignity of risk’ that is the right of people to make their own choices – to take their risk whether to accept offered treatment, or ride a motorcycle, or smoke cigarettes etc.  The dignity of humans and the value of the life to them is enhanced if people are allowed to make their own assessment.

This concept is also relevant to readers of this blog and those in the emergency management sector.  In today’s world we want to believe that we can manage every risk and even that all risks can be reduced to zero.  That is of course untrue.  Risk is everywhere and we decide which ones we want to accept.  The law is reluctant to stop people acting, or requiring people to act, in their own best interests.  There is warrant to restrict risk taking if it exposes others to risk but if the risk is risk to you then its your business.  That concept in my view puts in context demands by emergency managers and emergency services that people ‘do what they are told’ and also fear that the emergency services will be somehow liable if people die or are injured for taking risks. 

Put simply if someone wants to live in a fuel rich environment or on a flood plain, the fact that it may not be the best or smartest thing to do is no reason to stop them. The fact that it may put others at risk may justify regulation but their own best interest does not. 

Conclusion

This long post is important to remind emergency services personnel and emergency managers of the value the law puts on personal autonomy and the right of people to make their own choices – for good or ill.   People in the emergency services want to do what they can and they want, often at all costs, to preserve life.  There are temptations to want to override what might be considered poor decisions.  Whilst the discussion in PBU & NJE v Mental Health Tribunal is not of direct application, the principles are worth noting and keeping in mind when considering how to respond to people to wish to make their own, perhaps unwise, decisions. 

This story was recently brought to my attention:

I cannot say what offences the owner has been charged with but for related posts see:

• Impersonating an emergency service worker in Victoria (October 17, 2017); and
• Acceptable hi-vis jackets? (April 22, 2016)