CAUTION– I have been contacted by the RFS and advised that the Air Operations Manual (2003) that I’ve relied on here has been replaced and updated. I will receive the latest copy in due course and will make any necessary updates to this post (13 November 2018).  

I have been asked to comment on a requirement by the NSW Rural Fire Service that aircraft contracted for aerial firefighting have installed, and listen to, RFS radios as well as the normal airband radios required by the Civil Aviation Safety Authority (CASA).  This is of particular concern where the aircraft is operated by single pilot without the assistance of an Air Observer (that is ‘An experienced fire officer qualified in the airborne observation, analysis and reporting of fire behaviour).[1]  My correspondent asks whether the installation of RFS radio is inconsistent with the Civil Aviation Regulations?

As Smith and Middleton say, the ‘issues concerning aerial firefighting in Australia are complex…’   I am not an expert in aviation law nor the technical details of aerial firefighting or radio technology. I have been provided with some documents which I refer to. The documents I have been given are:

1. A copy of the article by Phil Hurst, ‘Human Factors – mandatory for bureaucrats? (2009) Australian Aviation 78.
2. Rural Fire Service SOP 5.1.3-1 Mobile Radio Equipment (v 3.0, 17 June 2013).
3. Authorisation issued by PS Langford, Director Transport Australia allowing ‘aerial firefighting operations in accordance with the conditions and parameters approved for the conduct of aerial agricultural operations.’ This document (reference 74/775) is undated but there is a handwritten note that says ‘1982’. I assume it was issued in 1982.
4. Peter Smith and Jason Middleton, Aerial Firefighting in Australia: The administrative framework Journal Article with unknown publication status.

Australian Communications and Media Authority

The Australian Communications and Media Authority (ACMA) is responsible for licensing radio equipment and allocating frequency. The ACMA website says that aircraft are licensed ‘to authorise radiocommunications equipment operating on board’ an aircraft.[2] The terms of the licence[3] are technical but I understand that it allows a radio on an aircraft provided it is operating at prescribed frequencies in particular, 118 MHz to 137 MHz.[4]

Section 7 provides that a radio operator must be ‘qualified to operate the station in accordance with the Civil Aviation Act 1988 or any civil aviation instrument’.

Section 9 allows an operator to use the aviation radio to communicate with other aircraft, an ‘aeronautical station’ (eg an airport air traffic control facility) or an ‘aeronautical mobile station’ (eg a forward command post equipped with airband radio). The licence provides that the frequency for firefighting operations is 119.1MHz.

One might infer that this means that any other radio is not permitted, but that does not appear to be the intention. To return to the ACMA website it says:

Aircraft usage of other radiocommunications services such as fixed, land mobile, maritime mobile and outpost radio is no longer covered under an aircraft licence. If aircraft stations wish to use other than aeronautical or aeronautical-mobile satellite frequencies, a separate licence for the required service is needed.

In other words, the use of other radios is not prohibited, it is just not authorised by the aircraft licence. If the aircraft is fitted with RFS radios, that would need to be consistent with terms and conditions of the RFS licence. Given that RFS vehicles are fitted with RFS radios I will infer that it is consistent with the licence to fit a radio to an aircraft.

Civil Aviation Safety Authority

Part 8 of the Civil Aviation Regulations 1988 (Cth) deals with radiocommunications equipment in aircraft.  Regulation 82(1) says:

An Australian aircraft … as CASA directs, shall be equipped with such radiocommunication systems as CASA approves to ensure the safety of air navigation.

That means that an aircraft must be equipped with approved radiocommunication equipment, but it does not say the aircraft “shall only be equipped with such radiocommunication systems…”

Regulation 83(1) says:

A person commits an offence if:

(a)        the person transmits on a radio frequency of a kind used for the purpose of ensuring the safety of air navigation; and

(b)        the person is not qualified to transmit on the radio frequency.

 

CASA has issued some exemptions from this regulation for the purposes of firefighting.[5]  A ‘member of staff’ of the RFS is exempt from regulation 83(1) provided the member has completed RFS aviation radiotelecommunications training. Clause 4 of the exemption says:

(a) …

(b) …

(c)        The member or staff must only use the aviation bandwidth VHF AM frequencies allocated to the NSW RFS by Airservices Australia and the Australian Communications and Media Authority for use during firefighting activities;[6]

(d)       the member or staff must only use the allocated aviation bandwidth VHF AM frequencies for tactical aircraft-to-aircraft and air-to-ground communications when undertaking firefighting operations.

The application of cl 4(c) and (d) is ambiguous.

1. On one view they mean that the communication must be on aviation bandwidth, and only on aviation bandwidth.
2. On the other hand, because it is an exemption from r 83 they are only relevant when using ‘a radio frequency of a kind used for the purpose of ensuring the safety of air navigation’. On that interpretation, the requirement to use ‘only use the aviation bandwidth VHF AM frequencies allocated to the NSW RFS’ or to ‘only use the allocated aviation bandwidth VHF AM frequencies for tactical aircraft-to-aircraft and air-to-ground communications when undertaking firefighting operations’ means that the operator can use only those and no other airband frequencies but it says nothing about using other radios and non-airband frequencies.

I would infer the second interpretation is the relevant interpretation. The exemption allows an RFS radio operator to use 119.1MHz[7] and such other frequencies that have been allocated to the RFS, but no other frequencies within the range 118 MHz to 137 MHz.

RFS Air Operations Manual

Regulation 215 of the Civil Aviation Regulation 1988 (Cth) says:

1. An operator shall provide an operations manual for the use and guidance of the operations personnel of the operator.
2. The operator must ensure that the operations manual contains such information, procedures and instructions with respect to the flight operations of all types of aircraft operated by the operator as are necessary to ensure the safe conduct of the flight operations (other than information, procedures or instructions that are set out in other documents required to be carried in the aircraft in pursuance of these Regulations).

Smith and Middleton say:

NSW Acts and legislation concerning rural fire mitigation do not appear to mention aviation specifically, so the question of conflict between state and federal acts and legislation remains ambiguous. NSW RFS documentation makes scant reference to CASA accreditation for any of its aerial firefighting participant roles (except pilots). NSW RFS does not appear to have an AOC, a Chief Pilot or CASA approved Operations Manual, yet the NSW RFS Air Operations Manual and Cockpit Handbook give guidance as to control and operation of aircraft. Questions emerge over possible anomalies between Commonwealth and State regulations and guidelines as follows: … What is the status of authority of NSW RFS manuals (Air Operations Manual and Cockpit Handbook)?[8]

It’s not clear when the Smith and Middleton document was written and I’m not sure if the “NSW RFS Air Operations Manual and Cockpit Handbook” still exist. There is, however, an archived (2003) version available from the National Library of Australia.[9] This document is an RFS internal document and does not purport to be an ‘operations manual’ within the meaning of the Civil Aviation Regulation 1988 (Cth).

The Air Operations Manual says this about radio communications (emphasis in original):

Aviation operations will utilise a variety of communications means including the Strategic Network, GRN and PMR networks, Agency networks, Fire Ground radio and dedicated VHF Air band frequencies.[10]

All aircraft hired by NSW Rural Fire Service are required to be equipped with at least one air band radio. Contracted aircraft will also have a NSW Rural Fire Service GRN/PMR radio. Increasing numbers of casual operators are fitting NSW Rural Fire Service radios…

• Aviation communications shall not be used to direct how a pilot operates the aircraft. The pilot is at all times in command of the aircraft.
• The area of operation will determine the VHF Air band frequencies used. Districts and IMTs must contact State Operations for frequency assignment. A copy of NSW Rural Fire Service Aeronautical Frequencies is enclosed at Appendix 1.
• The pilot of the aircraft will at all times have first call on the communications systems within the aircraft. The pilot is by law, in command of the aircraft at all times and the use of communications equipment within the aircraft shall be with the approval of the pilot at all times.
• The normal users of aviation communications will be Pilots, Air Attack Supervisors, Air Observers, Aircraft Officers and Air Base Managers and support staff at an air base.
• Operation of aviation communication systems shall at all times comply with the requirements of CASA regulation and orders.[11]

Contract aircraft are fitted with NSW Rural Fire Service and Agency radios.[12]

Communications

A variety of communications means will be utilised to ensure the safety and efficiency of fire detection flights:

– Strategic Network. The Strategic network will be the primary means of NSW Rural Fire Service communications with aircraft. (As a consequence aircraft which have this means available will be preferred). Air observers will be responsible for identification and selection of the most suitable channel. In some circumstances, aircraft operating in one region would access the strategic network of a neighbouring region.

– District PMR channels. In some circumstances, it may be necessary to access district channels to ensure continuity of communications.

– GRN network. Within the GRN footprint, (as extended by the height of the aircraft), communications can be achieved on NSW Rural Fire Service operations channels.

– Aviation VHF/HF. The pilot will be responsible for maintenance of statutory communications.

– Mobile telephone. GSM, CDMA and satellite phones. Plans should not rely on the certainty of telephone coverage, which should only be used as a last resort.

– Use of any communications equipment must be authorised by the Pilot.

• Attack aircraft will increasingly have the necessary radios to communicate with ground crews in an emergency or when aircraft are allocated in direct support of ground crews. However, communications from ground crews will normally be directed to the AAS, as it will be unusual for bombing aircraft to be listening on ground frequencies.
• NSW Rural Fire Service aircrew and pilots will often be in a good position to observe fire behaviour and developing situations. Aircrew are trained to report their observations and should do so in the most efficient manner and in accordance with procedures outlined in the daily briefing. In an emergency, aircrew may communicate directly with vehicles and crews on the fireground, using any appropriate means. However, aircrew must not act as airborne fire commanders.[13]

The RFS Air Operations Manual does not suggest that the RFS can direct a pilot to do anything that, in the pilot’s view, puts the safety of the aircraft at risk, or that RFS is acting as an air traffic controller. The RFS manual explains how the RFS will manage allocating tasks to the chartered aircraft. It does not usurp the pilot-in-commands responsibility for aircraft safety or override (as indeed it cannot) any CASA obligations.

RFS SOP 5.1.3-1 Mobile Radio Equipment

Paragraph 2.8 says:

Icom aviation band radios will be used for communicating with aircraft in both mobile and portable/handheld applications.

That implies that RFS communication with aircraft will be on airband radio and in light of the CASA and ACMA authorities that would have to be on the frequencies allocated to the RFS for that purpose.

Using any other radio (eg RFS agency radio) may be inconsistent with this direction, but that does not make it unlawful.

Discussion

The general rule is that one is allowed to do anything unless the law says you can’t. You cannot find publications to say what you can do, rather you look for publications that say what you cannot do. The challenge then is to find ‘any CASA regulation, document or exemption that prohibits the use of agency radio communication systems for aircraft to aircraft or aircraft to ground communications during aerial firefighting operations.’

In my opinion, the documents and authorities discussed above, do not make it unlawful to use agency radios for air-to-air or air-to-ground communication. Arguably cl 4 of the CASA EX40/16 – Exemption — use of radiocommunication systems in firefighting operations (New South Wales Rural Fire Service) (1 March 2016) does prohibit communication other than on airband VHF but on balance I don’t think that’s the correct interpretation of that document. I think it says that an RFS radio operator may use airband radio, but only on the airband frequencies allocated to the RFS for that purpose.

My answer is that there is nothing in these documents to say it is illegal to install and use agency radios on aircraft.

Whether it is a good idea to use non-airband RFS radio on the aircraft, particularly where there is a single pilot and no air observer is another matter. Hurst notes the:

…tender that requires operators to fit and monitor five radios as well as a mobile phone while on duty – completely ignoring the research that indicates the significant contribution of human factors and especially distraction in flight safety.[14]

The allocation of specific frequencies to the RFS and ‘for tactical aircraft-to-aircraft and air-to-ground communications when undertaking firefighting operations’[15] along with an exemption to allow trained RFS operators to communicate on the airband radio[16] suggests that both ACMA and CASA have considered the issue and anticipate that communication with firefighting aircraft will be via airband radio.

The 2003 version of the RFS Air Operations Manual says that it is the role of the Air Attack Supervisor to ‘maintain air-to-ground communications and liaise with ground crews’ and ‘maintain communications with all aircraft over the fireground’.[17] If that is the case it is the Air Attack Supervisor and not every pilot that should be liaising with ground firefighters and the IMT. The Air Attack Supervisor can liaise with the IMT and then communicate directly with the pilots on the dedicated airband frequency.

Given that ACMA has allocated frequency for aerial firefighting operations, CASA allows trained RFS operators to use that allocated airband frequency, RFS SOP 5.1.3-1 says that communication with aircraft should be on airband radios and the 2003 Air Operations Manual says that it is the role of the Air Attack Supervisor to ‘maintain communications with all aircraft over the fireground’ it begs the question of why the RFS now wants other radios installed, presumably to allow anyone on the fireground to communicate with the aircraft in ways that are inconsistent with the published policies just listed.

The Air Operations Manual (2003) explains some benefits that the RFS considers with the use of RFS radio.  It allows aircraft ‘to communicate with ground crews in an emergency or when aircraft are allocated in direct support of ground crews’ and to report observations of the fireground and in ‘an emergency …  communicate directly with vehicles and crews on the fireground…[18]

Clear communication with an aircraft is essential for air safety.[19] Air Services Australia issues safety bulletins on the appropriate use of radios.[20]  The safety bulletin Sydney Surface Movement Radiotelephony (RTF) Congestion says (emphasis added):

… good radio etiquette can help reduce confusion and delays, and improve the overall level of safety.

 The diagram [omitted here] shows, in simplified terms, the Pilot/Controller Communication loop. This loop can have many barriers introduced which affect the flow and understanding of the information. These barriers include:

• Pilot/Controller workload
• Equipment limitations
• Similar sounding callsigns
• Fatigue
• Expectation bias
• Distractions
• Pressure

To assist in closing the communication loop, there are a range of considerations for all parties including:

• Use standard phraseology whenever possible to prevent misunderstandings
• Keep transmissions clear and concise
• Know what you want to say before transmitting
• Always listen out before broadcasting
• Don’t transmit if another aircraft is about to transmit a readback or awaiting a reply from the controller after a clearance request.
• Speak up if you think there is any possibility that a transmission has been directed to or answered by the wrong station…

It does not take much imagination to consider the burden it would put on a single pilot if he or she is required to monitor the fireground communication and to determine what communication is directed to him or her, and at that same time communicate with other aircraft and airband radio stations.  Even if the pilot is asked to monitor the fire ground radio for ‘situational awareness’ whilst firefighters are instructed not to make direct contact with the pilot the radio ‘chatter’ will be ambiguous and add to pilot workload.

Whilst the airspace above the fireground is not the ground at Sydney airport it is likely to be congested and dangerous.  Just as at Sydney airport, ‘good radio etiquette [is likely to] help reduce confusion and delays and improve the overall level of safety’.  There will be many barriers to communication above a fireground including pilot workload, similar sounding callsigns, fatigue, expectation bias, distractions and pressure. The advice to use standard terminology, to not transmit over others etc will still be relevant but unlikely to be observed over fireground radios operated by people untrained in aircraft radio communications. Fireground radio will not have the discipline and etiquette expected of airband communication, is likely to carry with it a risk of ‘confusion and delays’ and reduce ‘the overall level of safety’.

Conclusion

Subject to all the limitations set out at the start of this post, I do not think it is unlawful for aircraft to be fitted with non-airband agency radios nor is it unlawful for the RFS to require the installation of those radios as a term of their contract with aerial firefighters.

Whether it is a good idea is another matter.  Using RFS radios appears to me to be inconsistent with the intent, even though not strictly prohibited by, the:

• Radiocommunications (Aircraft and Aeronautical Mobile Stations) Class Licence 2016 (Cth);
• CASA EX40/16 – Exemption — use of radiocommunication systems in firefighting operations (New South Wales Rural Fire Service) (1 March 2016); and
• RFS SOP 5.1.3-1 Mobile Radio Equipment [2.8].

CASA, ACMA and RFS SOP 5.1.3-1 all anticipate that communication with aircraft will be via dedicated air band frequencies and only those who have completed training in the use of aviation radiocommunication systems will communicate with aircraft.  The Air Operations Manual anticipates that only the Air Attack Supervisor will liaise with aircraft involved in aerial firefighting. Installing agency radios appears to be a way to increase the number of people who, with no appropriate training in aircraft communication, will be able to communicate directly with the aircraft with the necessary increase in pilot workload that must entail.

At the end of the day, however, as the Air Operations Manual notes, the pilot remains in command and has the final say – ‘Use of any communications equipment must be authorised by the Pilot’.  A single pilot, without the assistance of an air observer, could determine that he or she will not use the RFS radio during intense operations.

Footnotes

[1]              NSW Rural Fire Service Air Operations Manual (2003), p.1

[2]              https://www.acma.gov.au/theACMA/aircraft-licences-guidelines (accessed 8 November 2018).

[3]              Radiocommunications (Aircraft and Aeronautical Mobile Stations) Class Licence 2016 (Cth) https://www.legislation.gov.au/Details/F2018C00282 accessed 8 November 2018).

[4]              Ibid s 6(b)(i); See also http://www.airservicesaustralia.com/services/frequency-assignment/ (accessed 8 November 2018).

[5]              CASA EX40/16 – Exemption — use of radiocommunication systems in firefighting operations (New South Wales Rural Fire Service) (1 March 2016) https://www.legislation.gov.au/Details/F2016L00228.

[6]              For details of other frequencies use by the RFS see http://scanradionsw.blogspot.com/2012/08/nsw-busfire-frequencies.html (accessed 13 November 2018); see also Appendix 1 of the NSW Rural Fire Service Air Operations Manual (2003).

[7]              Above n. 3.

[8]              Peter Smith and Jason Middleton, Aerial Firefighting in Australia: The administrative framework Journal Article with unknown publication status, p. 12.

[9]              http://pandora.nla.gov.au/pan/38246/20031021-0000/airoperationsmanual2003.pdf

[10]             NSW Rural Fire Service Air Operations Manual (2003), p. 21.

[11]             Ibid, p. 22.

[12]             Ibid, p. 26.

[13]             Ibid p. 39.

[14]             Phil Hurst, ‘Human Factors – mandatory for bureaucrats? (2009) Australian Aviation p. 78, 78.

[15]             Above n 3.

[16]             Above n. 5.

[17]             Above n 10, p. 3.

[18]             Ibid p. 39.

[19]             See https://outnback.casa.gov.au/episode-3/golden-rules-radio-calls

[20]         The importance of correct radio calls and readbacks (7 November 2014) http://www.airservicesaustralia.com/wp-content/uploads/Safety-Bulletin-oct-20-The-importance-of-correct-radio-calls-and-readbacks.pdf; Sydney Surface Movement Radiotelephony (RTF) Congestion  (23 March 2013) http://www.airservicesaustralia.com/wp-content/uploads/22-March-2013-Sydney-Surface-Movement-Radiotelephony-RTF-Congestion.pdf.

Today’s correspondent asks about disciplinary processes within Victoria’s Country Fire Authority.  My correspondent says:

1. CFA regulations allow the chief to appoint an investigator to investigate disciplinary matters. After the investigation report is delivered the CFA have up to 60 days in which to lay a charge. In my case 6 months have elapsed with no advice that a charge would or would not be laid. Throughout the process I was under strict instructions not to discuss the investigation with anyone. I understood this as necessary to protect the integrity of the process. I would like to know what my right are now in relation to confidentiality? I have nothing to hide and am considering going public with what I believed to be a frivolous allegation designed to intimidate me. Am I within my rights do that?
2. A secret tape recording of a meeting which I was present at was made by another person who passed it on to me. That recording would support my position regarding complaints made against me. I chose not to use it at the investigation for ethical reasons, but could I use this in a court of law if I were to allege the investigation against me was malicious? The meeting was a meeting that any brigade member could attend and which I would consider a public meeting. As I am sure you would be aware the laws in Victoria allow recording of conversations you are a party too?

I’m always reluctant to stray too far into the specific and clearly there are significant and real issues here.  I will speak in general principles but warn my correspondent to get specific legal advice from a practitioner who can be instructed with all the necessary details before doing anything.

The investigation

The Country Fire Authority Regulations 2014 (Vic) r 13 says:

(1)       The Chief Executive Officer or the Chief Officer may appoint an employee or other person as an investigator to gather information concerning the circumstances which may have given rise to an offence under regulation 11.

(2)       Without limiting subregulation (1), the investigator must, as soon as practicable after commencing an investigation, give a written report on the circumstances to the person responsible for determining whether a charge should be laid in relation to those circumstances.

Regulation 14 says:

(1)       A senior employee, other than the Chief Executive Officer or the Chief Officer, may lay a charge for an offence under regulation 11.

(2)       A charge for an offence must be laid against an employee within the prescribed period after the day on which the written investigation report is given under regulation 13(2)…

(4)       In subregulation (2), “prescribed period” means—

(a) 30 days; or

(b) any other period not exceeding 60 days that the Chief Executive Officer or Chief Officer determines.

(See also r 48 for similar provisions with respect to volunteers).

Six months is well past the prescribed 60 days so subject to any argument that may exist as to why that time limit doesn’t apply or when the final report was served we can assume with some confidence that no charge will be laid as a result of this particular investigation.

There are no express regulations about confidentiality in either the Country Fire Authority Act.  The Country Fire Authority is an authority separate from the Crown (see Country Fire Authority Act 1958 (Vic) s 6; see also Report on discrimination, sexual harassment and victimisation in the CFA and MFB to be withheld (October 5, 2018)).  Employees are employed by the Authority by virtue of s 17.  I infer therefore that the Public Administration Act 2004 (Vic) does not govern the employment of CFA firefighters.

Subject to general laws and in particular one would have to have regard to the specific terms of one’s employment that may well have confidentiality clauses and the law of defamation there is no need to maintain secrecy over the allegations.  At least there is nothing in the CFA Act or its regulations to impose that obligation.

The audio recording

In Victoria the relevant Act is the Surveillance Devices Act 1999 (Vic).   Section 6(1) says:

Subject to subsection (2), a person must not knowingly install, use or maintain a listening device to overhear, record, monitor or listen to a private conversation to which the person is not a party, without the express or implied consent of each party to the conversation.

A listening device is defined in s 3 as:

… any device capable of being used to overhear, record, monitor or listen to a conversation or words spoken to or by any person in conversation, but does not include a hearing aid or similar device used by a person with impaired hearing to overcome the impairment and permit that person to hear only sounds ordinarily audible to the human ear

There is no relevant exemption in subsection 2.  Therefore recording a meeting is only unlawful if what is being recorded could be considered a ‘private conversation’ to which the person doing the recording was not a party.

A ‘Private Conversation’ (s 3)

means a conversation carried on in circumstances that may reasonably be taken to indicate that the parties to it desire it to be heard only by themselves, but does not include a conversation made in any circumstances in which the parties to it ought reasonably to expect that it may be overheard by someone else;

A ‘party to a private conversation’ is any ‘person by or to whom words are spoken in the course of the conversation’ (s 3).

If the meeting was ‘a meeting that any brigade member could attend’ and what was recorded was the meeting with everyone talking and the various reports then it does not sound like the recording of a private conversation and is therefore not prohibited by the Surveillance Devices Act 1999 (Vic).

Even if it was prohibited that does not mean it is inadmissible in court.  Illegally obtained evidence may still be used where the value of the evidence exceeds the value in communicating the need to obey the law (Bunning v Cross (1978) 19 ALR 641).   That position has been confirmed in legislation.  Section 138 of the Evidence Act 2008 (Vic) says:

(1)     Evidence that was obtained—

(a)        improperly or in contravention of an Australian law; or

(b)       in consequence of an impropriety or of a contravention of an Australian law—

is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained.

Assuming that the conversation was illegally recorded it can still be used if the probative value is high, the nature of the proceedings is sufficiently serious to warrant overlooking the breach and various other factors listed in s 138(3).

Conclusion

Remember this is only general advice looking at first instance at the CFA Act and its regulations.  There is nothing there to compel a maintenance of confidentiality after the prescribed period to lay a charge, but my correspondent would want to carefully review his or her contract of employment and consider the law of defamation before running off to the newspapers or radio.

With respect to the recording of a meeting it is only unlawful to secretly record a private conversation that you are not a party too.  Recording a meeting that is reasonably public (even if it is restricted to CFA members) would not appear to meet that definition.  Even if it does, a party to the ‘conversation’ can record that conversation.  Prima facie, given my correspondent’s description, what was recorded was not a private conversation so the prohibition in the Surveillance Devices Act 1999 (Vic) s 6 doesn’t apply. Even if it does that does not mean that the recording cannot be used in court.  Even if it was illegally or improperly obtained in may be used where ‘the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained’.

For a related discussion see Listening devices – New South Wales (July 16, 2018)

See also Liam Byrne ‘Admission of evidence obtained in breach of laws‘ (2007) 78 Precedent pp. 21-25.  Note that this article written in 2007, before the current evidence Act in Victoria was in force. The Evidence Act 2008 (Vic) is based on model legislation that had been adopted by the Commonwealth, New South Wales and Tasmania before 2007.  It follows that the discussion in this paper on the law in those states will be more applicable to Victoria today, than the discussion on 2007 Victorian law.  I also note that I have not discussed the privacy laws as I don’t see that they apply in this situation as the recording was not by the CFA or an agency collecting private information. However as a general discussion on the use of evidence that may have been improperly obtained it may be of interest.

 

A correspondent has drawn a news story regarding an road rage incident that left a paramedic student injured – see Man charged over Melbourne paramedic’s alleged assault 9News (Melbourne November 9, 2018).  The story says (emphasis added):

A man has been charged after an off-duty paramedic was beaten in an alleged road rage incident in Melbourne’s south-east.

Joshua Burke allegedly started following the 23-year-old, known as Erin, when she flashed her headlights at him after he “cut her off” in Sommerville last Thursday.

She alleges that when she parked her car, Mr Burke got out and started smashing her window and kicking her side mirror.

He has then been accused of punching the student paramedic in the face and striking her with a can of deodorant.

The young woman suffered serious facial injuries including a broken eye socket. She is yet to learn if she will have to undergo surgery to repair it.

Mr Burke left the scene after the bashing but was later arrested by police.

He has been charged with a number of offences, including assaulting an emergency worker, intentionally causing serious injury, possessing cannabis and a controlled weapon.

My correspondent says:

The reported facts of this case are the victim was a trainee student paramedic (from the photos wearing green student University overalls) on her way home. I can only find reference in the crimes act to an “emergency worker on duty”. Is this just sloppy reporting and her status as a student paramedic is irrelevant in this case, or is there another provision of law at play here?

There are various offences that may have been committed here ranging from assault (Crimes Act 1958 (Vic) s 31) to ‘Causing serious injury intentionally in circumstances of gross violence’ (Crimes Act 1958 (Vic) s 15A and no doubt others depending on the offender’s state of mind and all the relevant circumstances.  It will be up to the police and the Office of Public Prosecutions to determine what offences they think they can prove and will take to trial.

Section 31(1)(b) says that any person who ‘… assaults … an emergency worker on duty …knowing or being reckless as to whether the person was an emergency worker…; is guilty of an indictable offence. Penalty: Level 6 imprisonment (5 years maximum).’

The terms ‘Emergency worker on duty’ and ‘emergency worker’ have the same meaning as that given in in the Sentencing Act 1991 (Vic) s 10AA (Crimes Act 1958 (Vic) s 31(2A)).  The Sentencing Act says that emergency worker means, relevantly, ‘an operational staff member within the meaning of the Ambulance Services Act 1986’.  An emergency worker is on duty if he or she ‘is providing, or attempting to provide, care or treatment to a patient’.

An ‘operational staff member within the meaning of the Ambulance Services Act 1986’ is defined in s 3 of that Act as a person

who is employed or engaged (whether on a paid or voluntary basis) by an ambulance service—

(a) as an ambulance paramedic or an intensive care paramedic; or

(b) in any other capacity to provide medical or other assistance to patients in an emergency

Discussion

A student paramedic who is on placement with Ambulance Victoria will meet the definition of an ‘operational staff member’ by virtue of paragraph (b) above, that is they are engaged ‘in any other capacity’ (that capacity being a student) to provide medical or other assistance to Ambulance Victoria’s patients.

But they are only ‘on duty’ if they are ‘providing, or attempting to provide, care or treatment to a patient’, not when driving home.

The other element that the Crown would have to prove is that he knew or was reckless as to whether she was an emergency worker.  Given this was a ‘road rage’ incident he may have been completely unaware (and indifferent) as to who this person was.

Conclusion

Is this just sloppy reporting? We can’t say. Police may well have charged him with this offence.  We don’t know the full story.  Further the police have to make an initial decision and again they may have charged the driver with an offence contrary to s 31(1)(b) but that does not mean they, or the Office of Public Prosecutions will proceed with that offence.   They may well drop it if they conclude there are no reasonable prospects of success in any prosecution but that does not mean that they will drop all charges.  There are plenty of other offences that, at least on the reported facts, the Crown could and no doubt will proceed with.

Today’s correspondent tells me that:

The Victorian Government recently announced that it was awarding a contract to a private entity to provide non-emergency call taking services for Victoria Police (the Police Assistance Line “PAL”).  I understand that the PAL is to be operated by Serco under the management of Victoria Police.

It is also my understanding that, pursuant to the Emergency Services Telecommunications Authority Act 2004, ESTA is obliged to provide all call taking and dispatch services to Victoria’s emergency service organisations, including Victoria Police.  I believe this includes non-emergency call taking and dispatch services.

My question is, in the absence of an amendment to the ESTA Act, is a contract between Victoria Police and Serco for the provision of non-emergency call taking services legal?

The functions of ESTA are set out in the Emergency Services Telecommunications
Authority Act 2004 (Vic) s 7.  They include (s 7(1)):

(a)     to provide or enable and control the provision by others of emergency telecommunications and other communications services;

(b)     to promote and develop policies and procedures to improve the standard and provision of emergency telecommunications and other communications services;

(c)     to advise the Minister on the administration of this Act and on any other matter referred to the Authority by the Minister;

(d)     any other functions that are conferred on the Authority by this or any other Act.

Further, s 7(4) says:

In carrying out its functions under subsection (1), the Authority must recognise the right of emergency services and other related services organisations to—

(a) assess and vary their own operational standards; and

(b) manage their own resources; and

(c) assume direct control of communications in the event of incidents and emergencies.

There could be a debate as to whether ‘emergency telecommunications and other communications services’ should be read as

1. ‘emergency (telecommunications and other communications services)’ or
2. ‘(emergency telecommunications) and other communications services’.

If it’s read the first way, the word ‘emergency’ qualifies or limits both ‘telecommunication’ and ‘other communication services’.  If it’s the second interpretation the word ‘emergency’ only qualifies telecommunications not ‘other communications’.

Either way, ESTA’s functions only relate to emergency telecommunications.  By definition the ‘non-emergency call taking service’ (ie non-emergency telecommunications)has to be outside ESTA’s remit.  If that was not the case where would you draw line?  If ESTA is ‘obliged to provide all call taking … services to Victoria’s emergency service organisations’ no-one could ring a police, ambulance or fire station directly, for any purpose at all.

There are no regulations made under the Emergency Services Telecommunications Authority Act 2004 (Vic) that would affect the position, nor does ESTA get a mention in the Victoria Police Act 2013 (Vic).

Allowing police to decide how to handle non-emergency calls would appear to be an example of police managing their own resources ie make the choice on whether they want to use police resources to employ police, hire non-police staff or contract with SERCO to manage the Police Assistance Line.  It might also be an example of police assuming ‘direct control of communications in the event of incidents’ that are not emergencies.  All of which is contemplated by s 7(4).

Conclusion

Without some explanation as to why my correspondent thinks ‘ESTA is obliged to provide all call taking and dispatch services to Victoria’s emergency service organisations, including … non-emergency call taking and dispatch services’ I can’t see any conflict. ESTA is dealing with emergencies, and non-emergency call taking services are not about emergencies and therefore outside ESTA’s remit.

Today’s correspondent asks:

Do First Aiders have a Duty or Care to inform First Responders of all serious hazards? For example, should first aiders ask a casualty if they have any blood borne diseases or have they taken any illegal drugs, and then pass that information confidentially to paramedics? Are First Aiders justified in asking a casualty for this information as part of their hazard assessment when an incident has occurred?

I’ll take those questions in reverse order, so I’ll start with “Are First Aiders justified in asking a casualty for this information as part of their hazard assessment when an incident has occurred?”  For the sake of this question I assume, without confirming it, that the Australian privacy principles apply to the first aider ie they are part of an agency collecting personal information rather than just a good Samaritan.

Because my correspondent has not nominated a jurisdiction, I’ll refer to the Privacy Act 1988 (Cth).  Australian Privacy Principle 3.3 says:

An APP entity must not collect sensitive information about an individual unless:

… the individual consents to the collection of the information and … the information is reasonably necessary for, or directly related to, one or more of the entity’s functions or activities…

How is the information necessary? I would suggest that there can be no doubt that a patient’s drug use is relevant in first aid.  Determining what if any drugs a patient has taken will make a relevant difference to the diagnosis and the patient’s treatment.  The issue of blood borne disease is more difficult.  As I understand it, one should take universal precautions to prevent contamination from the patient’s blood whether they tell you they have a blood borne disease or not. If the information is not going to make a difference to how you treat the patient, why do you need it?

Resolving that issue is not however important to a final answer.  Let me assume that all the information is clinically relevant in which case first aiders are justified in asking the questions but for the purposes of providing patient care rather than as their risk assessment.

An agency that has collected personal information may use it for the purpose for which it was collected.  Why do first aiders collect personal information – see First aid patient records – who and what are they for? (January 31, 2015).  A reason to collect sensitive medical information is to provide appropriate care and to ensure continuity of care.  First aiders who hand-over a patient to a paramedic, and a paramedic who gives a hand-over to nursing staff are all sharing sensitive information in order to ensure appropriate patient care.

If one is asking the question because of personal security concerns rather than for clinical reasons, then the issue is a bit more complex.  If you really think that asking a patient if they have a blood borne disease is about your security then do you have a ‘duty’ to tell someone else? It’s unlikely that you do as there is generally no duty to prevent harm.  As Crennan and Kiefel JJ said in Stuart v Kirkland-Veenstra [2009] HCA 15, at [127] ‘The common law generally does not impose a duty upon a person to take affirmative action to protect another from harm’.

Even if there was a duty, telling the paramedics shouldn’t make a difference.  A paramedic should treat the patient the same either way.  If the paramedic contacts the blood borne disease, then it will be the failure to use appropriate safeguards rather than the knowledge that could have been passed to them.

As for drug use again if you ask for security reasons then passing on the information would be reasonable but again, if you don’t, the paramedics are going to make their own patient assessment. Whether there’s a duty to share that information or not is again unlikely to make much of a difference as paramedics will no doubt make their own assessment both of the patient and the risk.

Conclusion

It is appropriate to ask a patient clinically relevant information and pass that onto the next level of care.

Today’s correspondent asks if I:

… have any work on the legal responsibility and accountability for incident controllers? Particularly, if something went wrong could liability be put on the IC? And do ICs need to have the appropriate skill set… E.G, being a firefighter to be IC at a fire. Or can an AIMMS trained non firefighter be the IC?

The role of the incident controller and the use of the Australasian Inter-Service Incident Management System (AIIMS) is not generally provided for in law (but see as an exception to that rule at least with respect to the role of the IC, the Fire and Emergency Act (NT) s 19).  The general principles in Australia are that for each emergency there is a command or combat or hazard management agency (nomenclature varies) that is responsible for managing the overall response to the emergency.  How they do that is up to them.  The agencies have chosen to adopt AIIMS to give a common operating platform to allow agencies to better work together.    An Incident Controller (IC) only has the authority and power delegated to him or her from the chief officer or provided in legislation. (In some Acts the power is vested in an ‘officer’ or ‘the officer in charge’ or ‘the senior officer’ and sometimes it’s the Chief Officer or Commissioner who can then delegate).

However it works the IC is there as the representative of the agency that he or she works or volunteers for.  He or she is not there in a personal capacity, they are not there because someone asked them to come and manage an emergency, they are then because someone asked the emergency service to come and manage the emergency and the emergency service sent the IC as part of the response team.

Liability

The relevance of that is that any civil liability must belong to the agency involved or for most government agencies, the liability falls to the Crown or State.   Following the 2003 Canberra bushfires there was civil litigation that alleged the IC controller had been negligent.  The trial judge did find that some of her decisions failed to meet the standard expected of a reasonable controller.  But there was no suggestion at any time that she could be or would be personally liable.  The defendant was at all times the State of New South Wales – see

• Judgment in the litigation arising from the Canberra fires of 2003 – updated 19 December 2012 (December 18, 2012) and
• ACT Court of Appeal upholds verdict in favour of NSW over Canberra 2003 bushfires (November 3, 2014).

There has been allegations of criminal negligence by incident controllers – see

• UK Incident controllers charged with manslaughter (December 7, 2011) and
• UK Incident controllers cleared of manslaughter (May 31, 2012).

Manslaughter by criminal negligence requires negligent conduct that falls so far below the standard of care expected that it warrants criminal punishment (see Professional discipline after serious criminal conviction – lessons from the UK (January 29, 2018)).  I simply cannot imagine circumstances where an Australian incident controller would face prosecution for that offence.   Consider the outcome for the incident controller of the 2007 Boorabin fires in Western Australia.  During the response to those fires the incident controller allowed a road to be opened.  A forecast wind change occurred carrying the fire over the road and killing three people.  The Coroner, in his findings following the Inquest into the deaths of Trevor George Murley, Lewis Kenneth Bedford and Robert Wayne Taylor (20 November 2009) said (p. 34):

It is remarkable in this case that the Incident Controller took so little care to inform himself adequately of weather conditions at the fire zone.

AT p. 53:

The course of the fire on the evening of 30 December 2007 was predictable and should have been predicted by the Incident Management Team compromising DEC staff. The Incident Controller, Mr Hooper, made a decision to open the road in circumstances where it appears that no attention was paid to available specific and high quality weather information.

And finally, at p. 60:

Of particular concern in this case is the fact that the Incident Management Team at Kalgoorlie comprising DEC staff all failed to pay appropriate attention to important weather forecast information. Particularly concerning is the fact that the DEC Incident Controller not only failed to place appropriate reliance on wind change information provided to him, but even at the time of the inquest failed to appreciate the fact that on the available information the fire spread was predictable and, further, he did not appreciate that his failure to pay attention to significant wind change information was, at the least, careless.

Even with that damning assessment there was no suggestion that the IC would face criminal charges or even internal disciplinary proceedings – see Joseph Sapienza and Liam Phillips ‘Bushfire controller to escape punishment’ WAtoday (Online) 21 November 2009.

The risk of criminal liability may increase where a decision of an IC leads to the death of emergency service workers in particular in states where there is a law on industrial manslaughter. That was the situation in the UK where the incident controllers were charged and ultimately acquitted.  It was also a factor in decision making in the rescue (or failure to rescue) Margaret Alison Hume (see Legal confusion leads to unnecessary death (December 8, 2011)).  Industrial manslaughter laws are not common in Australia, I am only aware of industrial manslaughter laws in the Australian Capital Territory (see Crimes Act 1900 (ACT) ss 49A-49E). Even then, there is such a long way between adverse outcome and criminal responsibility that deliberate malfeasance excepted, it is inconceivable that an IC would be ‘liable’ for poor outcomes that are an inevitable part of responding to emergencies.

Appropriate skill set

Of course an IC should have the appropriate skill set but what that is may be open to debate.  The latest version of AIIMS (Australian Fire and Emergency Services Authorities Council, The Australasian Inter-Service Incident Management System (Melbourne, 2017)) says (p. 85):

At any incident, achieving control requires effective leadership and good management at all levels in the AIIMS structure.  Effective leadership and management in incident control requires more than technical proficiency in the role.

Whilst it is important to have ‘technical knowledge of the type of hazard that is the focus of the incident’ it is not necessary for the IC to have that knowledge.  The IC needs to have ‘personnel with strong technical knowledge within the team…’ (p. 89).

Noting that AIIMS is not enshrined in law but is rather adopted by convention or practice, there is no legal requirement for a firefighter to be the IC at a fire.  The officers with the authority to appoint the IC or delegate to the IC can appoint anyone they like to be the IC.

Conclusion

Whilst it is bold to say ‘never’ I can imagine no circumstances where an IC who is honestly attempting to perform his or her task, no matter how incompetently would be personally liable for any poor outcome.  If the IC is incompetent, the fault lies with the agency chief that appointed him or her or failed to monitor performance.  Any liability will fall to the agency.

An IC should have the appropriate skill set for the task but that skill set is not the technical skill set to lead the on-the-ground response, it is the skill set required to lead a team and make decisions.

 

 

Residents of Canberra will recall the 2011 Mitchell Fire when a fire in an industrial complex put potentially toxic smoke into the sky and caused widespread disruption to Northern Canberra.  (My daughters got a day off school as schools were closed due to concerns about the smoke).

The fire was on 15 September 2011.  The Coroner began an inquiry at the time of the fire. Over 7 years later the Coroner determined that there was no value in holding a public inquiry and handed down inconclusive findings based on various reports – see Inquiry into a fire at the premises of Energy Services Invironmental, 60 Dacre Street, Mitchell, ACT, on 15 September 2011 [2018] ACTCD 16 (1 November 2018).

Cause and origin of the fire

The role of the coroner was to inquire into ‘the cause and origin of the fire’ (Coroners Act 1997 (ACT) s 52(2) (as it was at the time of the fire).  The fire was investigated by ACT Police, ACT Fire and Rescue, WorkSafe ACT and the Environmental Protection Authority.  None of those agencies could identify how the fire started.   At [28] the Coroner said:

Four professional agencies investigated the cause and origin of the fire without conclusion.  I consider that there is no further evidence available to me which will bear on this point and that holding [an inquiry] would be futile.

ACT Fire Brigade and WorkSafe

One area that appeared problematic to me was findings regarding Work Health and Safety. At [45] the Coroner said:

The evidence before me suggests that on 19 February 2009 the ACT Fire Brigade advised WorkSafe ACT of its concern that the new ESI facility may not comply with AS 1940-2004 (storage and handling of flammable and combustible liquids). Enquiries were made with the ACT Fire Brigade to clarify these concerns. Ultimately WorkSafe ACT elected to take no action as they could not clarify which section of the Australian Standard had not been complied with or why the ACT Fire Brigade held these concerns.

You wonder how it could be that WorkSafe ACT and the ACT Fire Brigade (as they were then) could not communicate so that WorkSafe could understand the Fire Brigade’s concerns.  The Coroner did not address that matter any further.

Emergency alert

There were issues at this fire with the use of the emergency alert system:

Media reports in the days after the ESI explosion and fire criticised the Emergency Alert system used to advise nearby residents with some residents complaining they did not receive the warning and others saying they had received a warning despite being interstate or overseas.

(For a discussion by me on those issues, see Eburn, M., ‘Bushfires and Australian emergency management law and policy: Adapting to climate change and the new fire and emergency management environment‘ in Burton, L and Sun, L (eds) Cassandra’s Curse: Law and Foreseeable Future Disasters (Studies in Law, Politics and Society; Elsevier, 2015)).

With respect to the operation (or failure, depending on how you see it) of the emergency alert, there had been inquiries by the Senate Environment and Communications References Committee. The Coroner said (at [53]) ‘Given both the ACT Government and the Senate Committee reviews of the issue, I see no benefit in further inquiry’.

Outcome

The coroner made the following findings (at [29], emphasis in original):

(a) prior to the explosion and fire on 15 September 2011, the ESI facility was appropriately managed and the operational risks were identified and managed;

(b) the response of ACT public authorities to the explosion and fire was appropriate;

(c) despite significant investigation by multiple agencies, no cause or origin of the fire is able to be established, due to the ferocity of the explosion and subsequent fire;

(d) the cause and origin of this fire is unascertained.

There were no recommendations to enhance public safety

This post reports on the decision of the Victorian Civil and Administrative Tribunal in Nursing and Midwifery Board v Macrae (Review and Regulation) [2018] VCAT 1707 (and thank you to Bill Madden’s WordPress for bringing this case to my attention).  This case will be of interest to paramedics because of forthcoming registration and the demands on overworked health practitioners – see

• Responsibility for managing paramedic fatigue (October 31, 2018) and
• Posts on the prosecution of English doctor, Dr Hadiza Bawa-Garba.

Ms Macrae was a registered as a nurse in 1976 and as a midwife in 1978.  She worked at Bacchus Marsh Hospital from 1980 to 2016.  Between 2013 and 2014 there were high incidents of perintal deaths at the Bacchus Marsh Hospital.  This was investigated and the investigation included review of the conduct of the midwives including Ms Macrae.

Ms Macrae was subject to professional discipline over her conduct with respect to three deaths that occurred during that time.  For the purpose of this post we don’t need to set out the allegations in detail. The Tribunal said (at [5]):

In summary, the alleged conduct was:

• initiating intravenous fluids and arranging an epidural without prior medical consultation: patient A
• inadequate or inappropriate monitoring of patient and fetal well-being: patient A
• failing to recognise and respond effectively in an emergency or urgent situation: patient A, patient B and patient C
• failure to make adequate records: patient A, patient B and patient C
• inadequate response to adverse events, in particular Mrs Macrae’s failure to respond adequately to a 2011 clinical review of cases attended by her which identified substandard fetal surveillance in each case, and a 2012 fetal surveillance and monitoring assessment which concluded that her knowledge of fetal surveillance was equivalent to a junior ‘supervised practitioner’.

A critical issue was the workload at the hospital.  At [51]-[60] the Tribunal said (emphasis added):

Counsel on her behalf submitted that while Mrs Macrae does not shirk responsibility for her own failings, including that she was clearly not appropriately skilled in the interpretation of CTGs during the relevant period, she asked that the Tribunal assess her culpability with a number of issues in mind including that her conduct was not borne of laziness or disinterest, rather it was a product of being stretched too thin at her job.

Counsel for Mrs Macrae referred to the long working hours, lack of breaks, unexpectedly high and growing patient numbers, old and inadequate CTG machines and no centralised CTG monitoring system, difficulties and delays in obtaining the attendance of doctors including paediatricians. In short, she submitted, the system that was the Bacchus Marsh Hospital maternity unit at the time, was broken and since knowledge of the infant mortality rate came to light, after the events the subject of this proceeding, major changes and improvements have occurred.

Her Counsel described Mrs Macrae as being in “the eye of the storm,” as having no option but to “roll up her sleeves and get on with the job” and that “she did the best she could”.

We recognise that working conditions were difficult and that independent reports found failures at all levels. But, ultimately, a midwife’s professional obligations and responsibilities to the patients in her or his care are paramount.

Poor working conditions do not excuse incompetence or dangerous practice.

Patients are entitled to assume that if they come through the doors of a hospital to give birth, they and their babies will receive safe and competent care.

And if midwives are unable to safely or competently care for patients because of conditions outside their control and have done all they can to bring the deficiencies to the attention of those responsible, they will need to make their own decision about whether they remain in that workplace. This case illustrates the risks not only to patients but also to professionals who work in such an environment.

Dangerous conditions should be reported, documented and publicised.  They should never be normalised, as Mrs Macrae appears to have done.

The Tribunal that found Ms Macrae’s conduct amounted to professional misconduct. The outcome was that Ms Macrae’s was reprimanded. Ms Macrae had surrendered her registration prior to the hearing so the Tribunal made no further orders but did accept, and record, her undertaking that to never again apply for registration as a nurse and/or midwife.

Discussion Unsafe workplaces

The implications of this case should be clear.  As registered professionals paramedics, and nurses, doctors and any of the other 15 registered health professions, are required to put the care of their patients first and ahead of their own interests.  We all have to focus on our jobs as we all have bills to pay, but ‘Poor working conditions do not excuse incompetence or dangerous practice’ and if the work place is unsafe for patients, professionals ‘will need to make their own decision about whether they remain in that workplace’.

On the one hand this is a burden on registered health professionals.  As unregistered employees paramedics can point to the requirements of the job set by their employer and say ‘that is all I can do’. As registered paramedics they have independent duties to their patients that may be in conflict with their employer’s decisions about how the workplace is to operate.  As the Tribunal said ‘This case illustrates the risks not only to patients but also to professionals who work in such an environment’.

But this is also a source of power.  Now paramedics can say to employers – the workplace you are putting us into is unsafe and you have to allow us to practice safely in order to meet our obligations and if not we have an obligation to ensure that ‘Dangerous conditions [are] … reported, documented and publicised’.  If an ambulance service (state or private) is putting paramedics in a position where the work practices put patients at risk, paramedics will now have professional authority, so it is no longer just an industrial issue, to challenge their employer and perhaps refuse to work in those conditions.

I don’t pretend that would be easy.  A professional would want to know that they will be supported by their peers and act collectively but it does give rise to an extra, independent professional authority to challenge issues such as lack of staffing or poor fatigue management.

Professional competence and CPD

Another aspect of this case was the need for a professional to take responsibility for their own performance.  The Code of Conduct for Paramedics (Interim) (17 May 2017) says:

Maintaining and developing knowledge, skills and professional behaviour are core aspects of good practice. This requires self-reflection and participation in relevant professional development, practice improvement and performance-appraisal processes to continually develop professional capabilities.

One of the complaints against Ms Macrae was that she failed to meet those professional responsibilities. A review of the treatment of patients A and B revealed (at [10.1(d)]):

… substandard fetal surveillance by the attending midwives (which included Mrs Macrae) in each of those cases. In particular, the review identified that up skilling of CTG interpretation by staff was a necessary and agreed action to be undertaken after each case. Further the review identified as a necessary and agreed action to education staff that if fetal viability was in doubt this should be confirmed prior to further management/intervention.

In light of that finding, the Tribunal found Ms Macrae was guilty of professional misconduct because she did not at [10.1(g)]):

• Undertake formal reflective practice activity to identify gaps in her skills, knowledge or abilities.
• Analyse strengths and limitations in her own skill, knowledge and experience and address those limitations.
• Focus her CPD activity on the factors drawn to her attention in the clinical reviews of the cases of Patient A and Patient B.

It was her responsibility to reflect on her practice and ensure that the CPD she undertook met her needs.  This was particularly poignant in this case because the death of baby C was also preceded by inadequate patient assessment and a failure to identify critical issues that could have been identified from the cardiotocography (CTG).  Had she undertaken the type of CPD that was identified in the review, that may have had better outcomes for C and her baby.

For paramedics this case confirms, as they move into registration, that it will be their obligation to reflect on their practice.  It is not professional, or acceptable, to simply attend the CPD events that are on in order to ‘tick the box’.  Professional reflection on one’s own practice and weaknesses, and finding CPD to fill identified gaps in knowledge and skills, will be required.

Conclusion

In light of earlier discussions on this blog, this case serves as a timely lesson on what professional responsibility means for registered professionals and therefore will mean for paramedics.

The obligation of a registered professional is to put their patient’s interests first. This may mean standing up to employers to ensure that workplaces do not expose patients to sub-standard care.

Further paramedics and registered professionals must maintain reflective practice and set their CPD program to ensure that they are meeting their needs, not just meeting requirements.

Today’s correspondent is a:

… UK born and trained Paramedic. In 2008-2010, NSWA directly employed Paramedics from the UK as Intensive Care Paramedics. NSWA sponsored us for visas and assisted with emigration. This process over the last few years has seen me complete UK Police checks for my temporary visa, permanent visa and most recently Australian Citizenship.

It seems that the AHPRA Overseas Criminal History check is aimed at Australian born Citizens who have lived/ worked overseas for greater than 6 months, and then returned to Australia. These citizens would not have been police checked on return due to the very nature of already being a citizen.

Since emigrating to Australia in 2009 and being UK Police checked x3 by the Australian Government, I haven’t travelled, lived or worked outside of Australia. Surely as long as I can prove this by way of Australian Citizenship Certificate and scanned pages from my passport, it should be acceptable to skip this check, of an already expensive process?

There is a number of Intensive Care Paramedics within NSWA that this effects so your input would be greatly appreciated.

This is akin to the issue of English language skills and I do note that the Paramedicine Board has adjusted it’s procedures to take into account currently practising paramedics – see English language skills for paramedic registration (October 14, 2018). Perhaps they will do the same with criminal history checks?  Pending anything from the Paramedicine Board we can consider the position in light of current law.

The Health Practitioner Regulation National Law, s 38, says that a national board (in this case the Paramedicine Board) must:

… develop and recommend … registration standards about the following matters…

(b) matters about the criminal history of applicants for registration in the profession, and registered health practitioners and students registered by the Board, including, the matters to be considered in deciding whether an individual’s criminal history is relevant to the practice of the profession;

An application for registration (s 77) must require the applicant to

(c) to disclose the applicant’s criminal history; and

(d) to authorise the Board to obtain the applicant’s criminal history.

Section 79(2) says:

For the purposes of checking an applicant’s criminal history, a National Board may obtain a written report about the criminal history of the applicant from any of the following—

(a) ACC;

(b) a police commissioner;

(c) an entity in a jurisdiction outside Australia that has access to records about the criminal history of persons in that jurisdiction.

The ACC is ‘the Australian Crime Commission’ (s 5). The Board may also obtain a criminal history check at any time (s 135).

The Paramedicine Board’s Criminal History registration standard has been approved – Paramedicine Board of Australia, Registration Standard: Criminal history (17 May 2018).  The standard deals with ‘matters to be considered in deciding whether an individual’s criminal history is relevant to the practice of the profession’.  It says nothing about obtaining a criminal history check.

The Board, in its publication of Frequently Asked Questions (Paramedicine Board of Australia, Frequently asked questions – Criminal history (ud)) says:

A domestic check is automatically undertaken as part of the registration process, but if you have lived or worked in one or more countries other than Australia for six consecutive months or longer, when aged 18 years or more, you will need to organise your own international criminal history check using one of the approved providers.

It also says:

An Australian police check is included in the application fee, but if you are required to obtain an international criminal history check, you will need to do so through on of the two AHPRA approved providers at your own expense.

Finally a Fact Sheet published by AHPRA (ie not by the Paramedicine Board) talks about the ‘new’ approach to criminal history checks.  That new approach is to require applicants for registration to pay for their own international check. The Fact Sheet says (emphasis added):

The new approach applies to all individuals when they apply for registration in Australia (if they are currently unregistered in Australia) and have declared an international criminal history and/or have lived, or been primarily based, in any country other than Australia for six consecutive months or more when aged 18 years or over.

The AHPRA website says:

There are limited circumstances where a National Board may accept a statutory declaration in place of an international criminal history check. This includes:

• when the country check is not available from either of the approved vendor, or
• by Australian Military/Defence personnel who have served overseas, or
• by applicants who have served overseas on an Australian Diplomatic or Official passport as prescribed on the Australian Government Department of Foreign Affairs and Trade website.

Discussion

It is up to the Board to decide the process for obtaining criminal history checks.  The paramedicine Board appears (not surprisingly) to be adopting the generic procedures set out by the Australian Health Practitioner Regulation Agency or AHPRA.

I don’t think one can infer that

… the AHPRA Overseas Criminal History check is aimed at Australian born Citizens who have lived/ worked overseas for greater than 6 months, and then returned to Australia. These citizens would not have been police checked on return due to the very nature of already being a citizen.

I’m sure it is intended to apply to those that have come from overseas as the time between their arrival and seeking registration and their visa status could be subject to an infinite number of variables.

I would anticipate however that the Board simply has not considered the sort of circumstances raised by my correspondent. Given my correspondent has engaged with the Department of Home Affairs (replacing the former Department of Immigration) it may be that a check with the ACC will identify a clear UK criminal history.  Alternatively, a ‘Freedom of Information’ type request to the Department may produce the relevant criminal checks.

The Board would be free to accept those clearances and a statutory declaration to the effect that the applicant has not travelled overseas for more than six months since the checks were done.  But the Board does not say it will accept those.

What follows is that under current registration procedures my correspondent will have to obtain an international criminal check unless it is possible to persuade the Board (as happened with the English Language Standards) that there is a group of applicants that are affected by the policy but that haven’t been properly considered.  The Board may be persuaded to adopt an interim measure for those currently working in Ambulance who can show that they have been vetted as part of the recruitment and immigration process. Whether they will do that or not I cannot say.

What I would suggest is writing to the Paramedicine Board in terms similar to the email sent to me and ask them to review their processes.

Today’s correspondent says:

My question in relation to paramedic registration is how it will likely effect employment positions such as “school nurse,” where the selection criteria might state” must be an RN” or ” must be registered with AHPRA. How might a comparison be made?

To quote from a comment on my blog “Nursing and Paramedicine are not dumbed down Medicine … they are different professions with their own body of knowledge and expertise”. A paramedic is not a nurse so if a school wants to employ a nurse then they do not want to employ a paramedic, podiatrist, optometrist, traditional Chinese medicine practitioner or one of the other 15 registered health professionals.

If the selection criteria is ‘must be an RN’ then a registered paramedic will not meet that essential criteria.  It may be that some employers will decide that a paramedic is well qualified for a position and change their selection criteria to ‘an RN or paramedic’ or may even decide to change what have been ‘nurse’ positions to ‘paramedic’ positions now that paramedics are registered.  Whether that happens or not will be a matter for the employers.

Today’s question comes from a NSW paramedic whose

… enquiry or question relates to Paramedic fatigue and how NSW Ambulance currently manages and assists its officers with mitigating their on-shift fatigue. Recently there has been several on shift and post shift vehicle crashes that are attributable to fatigue. This I understand involves Paramedics not being given access to their crib breaks due to significant caseload and short staffing.

Could you advise or discuss the legal ramifications of the control/coordination centre staff have surrounding the duty of care they have to operational crews under their care who have not gained access to crib breaks?

If during or after a 12 1/4 nightshift, an operational paramedic was to have a fatigue related motor vehicle crash, would there be any recourse against the coordination staff who have a duty of care to those in their charge?

Would there be any recourse against the coordination staff?  I suppose there could be some internal process if they had not complied with internal policies.  One would hope that would be in the nature of training and assistance rather than disciplinary action as I can’t imagine coord staff deliberately choose not to give crews their break ‘just for fun’.  If we’re talking legal recourse – liability in negligence or breach of WHS law my view is there is no chance of recourse.

The coordination staff are part of the ‘system’ as are the on-road staff.  The coordination staff don’t determine how many ambulance officers or ambulances are available on any given shift; they don’t determine the demand for ambulance services; they have to implement the fatigue management policy set by the employer, not by them – and they can’t say to a triple zero caller ‘look I’m sorry the nearest crew are on dinner break, stand by we’ll be there in an hour’.

If there is some negligent failure to have or implement a fatigue management policy that failure will be a failure by the employer not the coordination centre staff member personally.  That’s true whether your considering negligence law or work health and safety law.  The obligation to manage risk belongs to the Person Conducting the Business or Undertaking (the PCBU) and it employs the paramedics and coordination staff to do that, but the responsibility stays with the PCBU.

It may be argued that governments should allocate more resources.  Remember that questions on the allocation of resources are not justiciable – that is they cannot be determined by a court (Graham Barclay Oysters v Ryan [2002] HCA 54; Civil Liability Act 2002 (NSW) s 42).  If the government allocates more money to ambulance services that comes at a cost to other services.  How governments allocate resources is a political not a legal issue, so we get to vote for the government that will spend money the way we want them too, we can’t sue to persuade them that our priorities should be the government’s priorities.  An injured paramedic cannot sue either the government or the ambulance service to say that they should have allocated their budget and resources in a different way to protect that person from the risk that eventuated as that is just one of the risks that have to be managed with finite resources.    If you can’t sue the government/ambulance service for not having more staff you certainly can’t have an action against the coordination staff.

What I find distressing about this question is what it suggests about morale and division in the service.  There’s no suggestion that ‘we’re in this together’.  If there are a lack of adequate resources relative to demand that impacts upon everyone including the coordination staff who, no doubt, feel the pressure of trying to get resources to those that call and trying to give the on-road crew their breaks and down time.  The coordination staff like the on-road staff have to manage with the resources they have.  For on-road staff to query whether there can be a personal recourse against their colleagues in coordination is concerning, to say the least.

Conclusion

The duty of the coord staff is to do their job within the parameters set by the employer and to coordinate the crews that are working that shift.  They have to manage competing demands in particular the demand for ambulance services and the need to allow crews their rest breaks.

If crews can’t get a rest break because of demand for services that is not the fault of the coord staff.  Even if there are things they could and should do (eg call in staff who were not rostered) then any negligent failure will fall to the ambulance service, not individual officers.

The [modified] question was:

If during or after a 12 1/4 nightshift, an operational paramedic was to have a fatigue related motor vehicle crash, would there be any [legal] recourse against the coordination staff who have a duty of care to those in their charge?

The answer is: No.

A correspondent has sent to me a document from Shane Bryant who is seeking election as a WHS representative.  In the document attached he reproduces a post that appears on this blog – RFS volunteer exercising rights as a ‘worker’ (August 27, 2016).  That post was about legal proceedings that Mr Bryant brought before the Industrial Commission.  It appears that his election paper reproduces my post in full, it is not an edited version though he has made some text in bold to emphasise points that I made.  The questions that were put to me were:

• Did I know my post was being used in this way?
• Do I endorse Mr Bryant?

My answer to both questions is ‘no’ but that simple answer hides many other issues which I’ll explore as separate questions.

Did Mr Bryant ask for permission to reproduce the post?

No he did not.

Do I think Mr Bryant needed to, or should have asked for permission?

No, I do not.  This blog is public.  I write my own opinions. The material that I wrote is my opinion and Mr Bryant has not misrepresented or changed what I said.  Others have reproduced my blog posts and provided I am acknowledged as the author (that is my moral rights) are recognised and the post is not edited to change the meaning I have no objection.  I reported on Mr Bryant’s case and he has reproduced that report.  I do not see that there is anything improper in that or that he required permission.

Do I endorse Mr Bryant as a candidate?

No, I do not.  I don’t know Mr Bryant personally and I am not an elector in this election.  My views are irrelevant.  I don’t endorse Mr Bryant’s candidature nor do I disendorse him, I have no opinion one way or the other on whether he should be elected.  That is a matter for the members of the RFS who are called to elect their WHS representatives.

I did say “Regardless of the merits of Mr Bryant’s claims, he is certainly committed and dedicated and willing to put his money and his effort into what he must see as the best interest of the RFS and its workforce.”  I admire that effort.  I also admire Pauline Hanson.  She was a shopkeeper who rather than complain about politicians ran for election – she was elected, prosecuted, convicted, gaoled, acquitted on appeal and re-elected.  I would never vote for her but you have to recognise and admire her commitment.

If electors read what I have written and think ‘he’s the sort of guy I want as WHS representative’ then so be it.

Do I think Mr Bryant has done anything wrong putting my blog on his election material and related to that, do I think he is implying that I endorse him?

No, I do not.  To repeat what I said above he has reproduced the post in full. He does not refer to it or make a claim that I have expressly endorsed him.  He says in effect ‘Eburn wrote …’ and I did write that; and I stand by what I wrote. If that makes electors think they should vote for him that is a matter for them.

Conclusion

Mr Bryant took a matter to court for a principle he believed in.   I admire that, but what I want to make clear is that I am not saying that I would, or anyone else should, vote for him nor am I saying that I would not, or anyone else should not, vote for him.  I am making absolutely no comment one way or the other.

I do say that I have no objection to Mr Bryant reproducing the post in the way that he has done.  I wrote it and I stand by it.  What I wrote is in the public domain, he has not edited it (other than to add some emphasis) and given due credit to me as its author.  He has not made any claim about it that is not true.  He could have said ‘For a discussion on the case I took to court see https://emergencylaw.wordpress.com/2016/08/27/rfs-volunteer-exercising-rights-as-a-worker/’.  That would have been to the same effect and would also be unobjectionable.

In conclusion:

1. I express no view on whether the RFS electors should elect Mr Bryant nor do I think Mr Bryant implies that I do express a view.
2. I do not think he has done anything inappropriate in reproducing my blog post in his election material.
3. I wish Mr Bryant, and all the candidates well in the election and I trust this process will enhance firefighter safety within the RFS.

An ambulance service employee from Western Australia:

.. encountered an issue in my ambulance service where a total of 6 people was requested to be conveyed.

The classification plate which is located inside the passenger door states this type of vehicle Seats 5, which in my interpretation also means insured only to carry 5 at anytime, whether people be laying, sitting or standing.

The plate holds information with regards to the category, which is NB1, Standards Act 1989, VIN number, GVM (gross vehicle mass) which is 3880kg and approval number.

Within our Ambulance design, and like most others I’ve worked on over the many years around the world, there are 2 seats in the front, 3 seats in the back, and a stretcher for the patient. So the total capacity to carry in this type of layout could be 6. But it is my belief that under the category NB1 we’re only allowed to carry 5 and unless as an ambulance we have an exemption, which I cannot find, then by transferring a vehicle with 6 would be breaking the law. But if an exemption is noted within the road traffic law, then would all journeys be the same, ie planed, urgent and emergency?

All vehicles on Australian roads are covered by compulsory third party insurance to ensure that anyone injured in a motor vehicle accident, other than the driver at fault, receives compensation.  The insurance is one of indemnity and is required by law in each state.  The insurer cannot get out of the obligation to pay compensation.  It is a social welfare scheme as we know the price of having vehicles is that people get injured. You could have 20 people in a car and if there’s an accident all will recover under the CTP scheme (subject to any deduction for contributory negligence for knowingly getting into the car, but that’s not an issue here).  The question of insurance is irrelevant for this discussion.

The vehicle category NB1 is a light truck with a “GVM between 3.5 tonnes and 4.5 tonnes” (Department of Infrastructure and Regional Development Light Commercial Vehicle Safety (2017), p. 2; Vehicle Standard (Australian Design Rule 42/04 – General Safety Requirements) 2005 (Cth), [3.3]).   There is nothing that says an NB1 vehicle can only seat 5.  The number of people that a vehicle can seat depends on how many seats with seat belts there are.

I would infer that if the compliance plate says the vehicle ‘seats 5’ it means that it seats 5 not that it may only carry 5 passengers (see Vehicle Standard (Australian Design Rule 3/03 – Seats and Seat Anchorages) 2006 (Cth); Road Traffic Code 2000 (WA) r 230, definition of ‘seating position’).  If the ambulance has 2 seats in the front, 3 seats in the back and the stretcher, then it seats 5.

It should be noted that “A person is exempt from wearing a seatbelt if he or she is providing or receiving medical treatment of an urgent and necessary nature while in or on a vehicle” (Road Traffic Code 2000 (WA) r 235(9)).  I don’t think anyone would quibble about whether the treatment met the definition of ‘urgent and necessary’ if the person was on the stretcher of an ambulance even if paramedics would distinguish between routine and life-threatening jobs.

The CEO may grant exemptions from the requirements to wear seat belts etc (r 240).  I don’t know whether any specific exemption has been granted to allow patients to be transported on a stretcher but I would not be surprised if that had been done.

Conclusion

What follows is that, in my view

• Vehicle category, in this case NB1, does not determine how many people the vehicle can carry.
• ‘The classification plate which is located inside the passenger door states this type of vehicle Seats 5’ which means it can seat 5, not carry 5.
• A person on a stretcher is not required to wear a seat belt (Road Traffic Code 2000 (WA) r 235(9) (which doesn’t mean it’s not a good idea to use one and the obligation to fit stretchers with seat belts may arise under other law most relevantly the Occupational Health and Safety Act 1984 (WA)).
• There may be specific exemptions to allow an ambulance to carry a person on a stretcher rather than in a seating position, but I cannot confirm that.
• The question of insurance is irrelevant to this issue. The driver is indemnified, and everyone is covered, if there is an accident (Motor Vehicle (Third Party Insurance) Act 1943 (WA)).

 

A ‘… newly registered paramedic’ who volunteers with a General Practitioner Clinic in Western Australia asks:

… if I transition my volunteer work at the GP office (which is currently predominantly an administration-type role plus and on-the-job learning) into a clinical role, what provisions/treatments/prescriptions (if under their authority/by proxy of the GP) am I allowed at present to be able to perform in accordance with state law?

I understand from experience paramedics can dispense medications in WA if there is a poisons permit in place issued by the Department of Health, for example at remote mining sites, and metropolitan areas (such as a large resort/entertainment centre in Perth – which have CPGs and a medical director)…

As such, could the GP I volunteer for create CPGs and I work for him in a limited capacity to either act as his proxy either under direct or indirect supervision, and to what capacity – i.e. as mentioned ability to prescribe/assess patients/ create treatment plans etc.. again keeping in mind that there will be highly details clinical practice guidelines

And it is also important to note that no medications are kept or used on premises, so with regards to medications, would it be allowable for me to present a case, make a recommendation, print a script, have the medical doctor review my case and sign the prescription if they deem it reasonable, necessary, and in the best treatment choice for the patient (especially if it is a long term medications the patient has been on for a long time).

As has been noted before, the Health Practitioner Regulation National Law works via protection of title rather than identifying scope of practice.  There is no law that says ‘this work is reserved for doctors, this for nurses and this for paramedics’ with the exception of writing prescriptions and claiming payment from Medicare.

Where paramedics can carry and administer drugs does depend on the Medicine and Poisons Act 2014 (WA) and the Medicines and Poisons Regulations 2016 (WA).  The essential thing is the terms of any licence or authority, not the presence of Clinical Practice Guidelines and/or a medical director – see The need for a medical director in an ambulance service (May 4, 2013).  It may be that the Department of Health may not issue an authority to an ambulance service without detailed CPGs and a medical director but that is not a requirement of the Act, that is the Department determining what it feels is required to ensure that the drugs are properly used.   Further, rather than issue an authority to every employee, the licence or authority may allow the medical director to certify which employees are allowed to carry and use drugs.  Where that is a term of the licence then it is that licence that gives the medical director the power to authorise the use and carriage of drugs, not some general power vested in any medical practitioner to authorise anyone he or she sees fit to carry drugs – see Doctors delegating authority to carry drugs (August 20, 2014).

The Code of Conduct for Paramedics (Interim) (June 2018) says at p. 7

Practitioners have a responsibility to recognise and work within the limits of their competence and scope of practice. Scopes of practice vary according to different roles; for example, practitioners, researchers and managers will all have quite different competence and scopes of practice. To illustrate, in relation to working within their scope of practice, practitioners may need to consider whether they have the appropriate qualifications and experience to provide advice on over the counter and scheduled medicines, herbal remedies, vitamin supplements, etc

For my correspondent, working in a GP practice, it will be incumbent upon both the paramedic and the medical practitioner to decide what skills the paramedic has and define the scope of practice accordingly.  It is incumbent upon both to reflect on what will best serve the needs of the patients and ensure patient care is the centre of that conversation.  In essence however, what “provisions/treatments/prescriptions” my correspondent can provide are those that he or she is competent to provide.

What the paramedic can’t do is actually write a prescription.  A medical practitioner can prescribe a schedule 4 or 8 drug (Medicines And Poisons Regulations 2016 (WA) r 51); a paramedic cannot (r 62).

The Medicines and Poisons Act 2014 (WA) s 27 says:

Authorisation of employees and agents

(1) An employee or agent of a health professional acting within the scope of the employee’s or agent’s actual or apparent authority, may do anything that is authorised by the professional authority of the health professional, other than to prescribe a medicine.

(2) For the purposes of this Act, if an agent or employee of a health professional does something that is authorised under subsection (1) the health professional is to be taken to have also done the thing.

If my correspondent is going to work in a GP practice, he or she ‘may do anything that is authorised by the professional authority of the health professional’ remembering that this Act is about the use of poisons.

What is significant is that from 1 December 2018, paramedics will be registered.  The Good medical practice: a code of conduct for doctors in Australia talks about working with other health professionals and provides for delegation – that is ‘asking another health care professional to provide care on your behalf while you retain overall responsibility for the patient’s care’ ([4.3]).  Before 1 December 2018 a paramedic is not ‘another health care professional’ and after 1 December they will be. A medical practitioner can be far more confident that engaging a paramedic and delegating patient care to him or her may be considered ‘good medical practice’.

In short, the GP can employ my correspondent, a registered paramedic to do any or all of the things suggested, that is assess patients, create treatment plans etc, even “make a recommendation [and] print a script” for the doctor to sign.  The doctor as employer takes the legal risk. Whether allowing any or all of those things to happen would be good medical or paramedical practice would be a matter for both the medical and paramedic practitioner to consider, as would be the question of whether and in what detail CPGs are required.

Conclusion
There is little law in this area.  A paramedic cannot issue a prescription.

Other than that, registered health practitioners (medical practitioners, nurses, paramedics and members of the other 12 registered health professionals) are expected to act as professionals.  To do that they have to keep the patient’s needs and care at the forefront of their thinking and they have to take professional responsibility for the care that they provide.

If a medical practitioner in the course of his or her practice believes that employing a registered paramedic can enhance patient care and the paramedic has clinical skills and knowledge that are appropriate to provide that care, then those practitioners can enter into an employment agreement to provide that care.  It is up to them to determine the employee’s ‘scope of practice’ remembering they both have professional responsibilities and duties.   There is no list of things that they can or cannot do, that’s the nature of being professionals, they have the responsibility to decide what is appropriate for the patients and what is within their respective areas of skill and competence.

 

Today’s correspondent is paramedic on the NSW/Victorian border who is

… regularly responded to cases across the border. My question largely relates to the treatment of mental health patients interstate, and I have struggled to get a clear answer on this from my employer. My understanding is that both NSW and Victoria have different Mental Health Acts and therefore different powers for police and paramedics with regards to sectioning involuntary patients. My question is: if I’m attending to a patient interstate (so outside the state in which I’m employed), what are my legal rights/responsibilities as a paramedic? Do I act within legislation for the state in which I am based, or the state in which the patient is located, and if it’s the latter, does my employer therefore have a responsibility to ensure paramedics working in border towns are cognisant of the Mental Health Acts for both states?

The relevant provisions are those parts of the mental health Act that allow a person to be detained and treated without consent or even against their will.

The Mental Health Act 2007 (NSW) s 20(1) says

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

The Mental Health Act 2014 (Vic) s 350 allows an authorised person, which includes an ‘ambulance paramedic’, when transporting a person ‘to or from a designated mental health service or any other place’ to

… use bodily restraint on the person if—

(i) all reasonable and less restrictive options have been tried or considered and have been found to be unsuitable; and

(ii) the bodily restraint to be used is necessary to prevent serious and imminent harm to the person or to another person…

Further, an Ambulance  paramedic may administer sedation to the person at the direction of a medical practitioner.   Further powers of authorised persons are discussed in my post New Mental Health Act 2014 (Vic) brings new powers for Victorian paramedics (July 28, 2014).

There are provisions for recognition of interstate orders and interstate transfer or patients – see Transporting the mentally ill from NSW to the ACT (July 18, 2018) and see also Mental Health Act 2014 (Vic) Part 13 ‘Interstate Application Of Mental Health Provisions’.

There is an agreement in place between Victoria and NSW.  The current agreement refers to the 1986 Victorian Act (see NSW-Victoria agreement for the transfer of civil patients between NSW and Victoria) but, according to Health.vic ‘the Mental Health Act 2014 (Vic) deems the civil agreement to be made under the 2014 Act’ (see https://www2.health.vic.gov.au/mental-health/practice-and-service-quality/service-quality/working-across-service-boundaries/cross-border-arrangements-nsw).

What follows and without reviewing the agreement chapter and verse, is that a NSW Ambulance officer in Victoria can exercise the powers granted by the Mental Health Act 2007 (NSW) and vice versa for a Victorian authorised officer in New South Wales.  So, for example, paragraph [5.7] says:

The following persons may be taken to a Victorian Facility without documentation, pursuant to section 93F of the Victorian Act:

(a) a person who may be taken to a NSW Facility by a NSW Police Officer under section 21 or 22 of the NSW Act;

(b) a person who may be taken to a NSW Facility by a NSW Ambulance officer under section 20 of the NSW Act; and

(c) a person who may be taken to a NSW Facility following the transfer of the patient from a NSW health facility in accordance with section 25 of the NSW Act.

In effect a New South Wales paramedic in Victoria can detain a person as they would in NSW and this is deemed to be an action under s 93F of the 1986 Victorian Act and any equivalent provision in the 2014 Act (though to be honest, I can’t see an equivalent to s 93F).

Conclusion

The strict answer is that in Victoria a NSW paramedic has to comply with Victorian law, but Victorian law allows them to exercise the powers granted to them under the NSW Act so it appears that for all practical purposes they can apply NSW law in Victoria, and the Victorian paramedics can apply Victorian law when in NSW.

 

 

 

Today’s correspondent asks:

What is the scope of practice of paramedics, ED nurses, etc. to make a diagnosis? This is a general question, but particularly of concern if mental health is involved.  Isn’t diagnosis outside the scope of practice of both paramedics & nurses? Shouldn’t they just note symptoms, not diagnoses. What could the legal consequences be?

It’s hard to find concrete info on this issue. One thing found is a California nurse practice advisory that states: “”The Medical Practice Act authorizes physicians to diagnose mental and physical conditions, to use drugs in or upon human beings, to sever or penetrate the tissues of human beings and to use other methods in the treatment of diseases, injuries, deformities or other physical or mental conditions. As a general guide, the performance of any of these by a registered nurse requires a standardized procedure…”

Of course, California might be different from Australian states.

Yes ,California is different from Australia.  In Australia the Health Practitioner Regulation National Law does not define scope of practice.  It’s clear that paramedics ‘use drugs in or upon human beings, … sever or penetrate the tissues of human beings and … use other methods in the treatment of diseases, injuries … or other physical or mental conditions’.  And they don’t do that under the direction of a medical practitioner.   The California document is irrelevant.

My correspondent gives an example.  Although I don’t give legal advice on particular issues and nothing written here can be used to infer whether the practitioners’ actions were lawful or not, I will repeat it to explain the point. My correspondent says:

Paramedics were called out, looked and saw that the patient’s doctor had prescribed anti-psychotics. The paramedics then wrongly assumed the patient had schizophrenia and was suicidal. The ED nurse documented this false diagnosis.

They were wrong, but even if they were right, isn’t such a diagnosis outside the scope of practice of both paramedics & nurses? Shouldn’t they just note symptoms, not diagnoses. In the example, shouldn’t they just have noted the medication they found at the patient’s place, the patient behaviour they directly observed, and nothing more? What could the legal consequences be?

Diagnosis means:

• ‘The identification of the nature of an illness or other problem by examination of the symptoms’ (Oxford English Dictionary (Online));
• ‘a judgment about what a particular illness or problem is, made after examining it’ (Cambridge English Dictionary (Online));
• ‘the discovery and naming of what is wrong with someone who is ill or with something that is not working properly’ (Collins English Dictionary (Online)).

A diagnosis is an opinion formed from the evidence available.  It may be right or wrong and it may be made with more less confidence. Everyone makes a diagnosis. Your child comes home with a runny nose and a fever and you diagnose a cold and put them to bed, or meningitis and you take them to hospital.

Paramedics and nurses have to make a diagnosis based on the patient’s signs, symptoms and history in order to make a decision as to what to do next.  When they find a person unconscious they have to ‘diagnose’ why they are unconscious – is it hypoglycaemia or a drug overdose as the treatment they will initiate will be very different.

The degree of confidence and detail required will vary with what a person might do.  As a layperson I may diagnose that the person collapsed in front of me has had a cardiac arrest and commence CPR.  Paramedics will determine the nature of their cardiac rhythm and other matters necessary to inform their treatment.  At that point their concern is to try and keep the patient alive and hopefully get a return of spontaneous circulation.

In hospital doctors may want to diagnose whether the cardiac arrhythmia is due to an electrical issue in the heart or a chemical issue to determine whether a pacemaker or drug therapy is required to reduce the risk of the event happening again.  Everyone is making a diagnosis though with different degrees of confidence and detail.

With respect to mental illness a psychiatrist’s diagnosis is required to authorise involuntary detention and treatment. In most states and territories mental health legislation allows paramedics to treat a person even if they do not consent if the person appears to be mentally ill.  Because diagnosis of mental illness is not something that can be done in the field all that is required is a belief, usually upon reasonable grounds, that the person is suffering from a mental illness (see for example Mental Health Act 2007 (NSW) s 20).   A determination that a person ‘appears to be mentally ill or mentally disturbed’ is not the same as forming a conclusion, or diagnosis, that they are mentally ill.

With respect to the example given, my correspondent implies that the conclusion that the patient was suffering ‘schizophrenia and was suicidal’ was based solely on the observation that the ‘patient’s doctor had prescribed anti-psychotics’.  We don’t know what else the paramedics observed or what conversation they had.  The mere fact I’m asked this question demonstrates the value there is in recording, in as much detail as possible, ‘the medication they found at the patient’s place, the patient behaviour they directly observed’ and anything else relevant to support their belief that the patient required treatment.  That is particularly important where the paramedics propose to detain the person under relevant mental health legislation.

The paramedics or nurses however may be quite certain and so express their view as ‘patient suffering from schizophrenia and is suicidal’ and one might say that is a diagnosis. The legal consequences of that are … nothing at all.  Whether the paramedics believe and record that ‘the patient is suffering from schizophrenia’ instead of ‘I formed the view that the patient is suffering from schizophrenia’ is going to make no difference.  If the paramedic has a ‘reasonable belief’ that the criteria for detention under the mental health Act in their jurisdiction has been met, then the patient can be detained.  If there is a challenge to their decision making eg the patient sues for false imprisonment, they will have to justify the basis for their belief based on, as noted, the things and behaviours observed.  How the final opinion was expressed on the patient record will be irrelevant.

Equally if the patient is taken to a mental health institution it will be up to a psychiatrist to examine the patient and determine whether the patient is mentally ill and the other criteria for involuntary detention have been met.  The opinion of the paramedics may justify the initial detention (to again use NSW as the exemplar, see Mental Health Act 2007 (NSW) s 18) but it will not impact upon the psychiatrist’s assessment.

Conclusion

The paramedics diagnosis explains why they took the action they did but it doesn’t prove that they were right.  The fact that I’m asked this question demonstrates the sensitivity of the issue, people don’t like being labelled or having their loved ones labelled so it may be prudent to avoid writing a firm conclusion.  But it’s not illegal for paramedics or nurses to make a diagnosis, they do it every day of the week.  The difference between a doctor’s diagnosis and a paramedics or a nurses is that most people won’t accept the paramedic or nurses diagnosis as definitive.   We look to medical practitioners to write the experts reports and to confirm that the patient ‘is’ suffering from a particular condition and to arrange ongoing care.  But just because the doctor makes the ‘definitive’ diagnosis it does not guarantee that they are correct.

 

In an earlier post I discussed the status of the NSW Ambulance Diploma as a qualification for registration as a paramedic, but it is not a qualification approved by the Paramedicine Board and the Board isn’t required to accept an equivalent qualification for registration – see NSW Ambulance Diploma – looking for equivalence (October 23, 2018).

Today’s correspondent has

… a diploma of paramedical science (prehospital care) … [from an RTO, not NSW Ambulance] however I was with NSW ambulance for nearly nine years in which time I served both as an Ambo and patient transport officer, I left prior to completing my diploma… I have been practicing as a paramedic since leaving ambulance within the private sector, with yearly recertification… Is it worthwhile attempting the registration process or do I forget about it?

The Health Practitioner Regulation National Law identifies three types of qualifications for paramedic registration.  They are:

1. Approved qualifications, that is qualifications approved by the Board (s 53 and see https://www.ahpra.gov.au/education/approved-programs-of-study.aspx?ref=paramedicine);
2. The accepted qualification for registration, that is the Diploma of Paramedical Science issued by the Ambulance Service of New South Wales (s 312 and NSW Ambulance Diploma – looking for equivalence (October 23, 2018); and
3. “Qualifications for general registration in paramedicine for a limited period” (s 311).

Going forward the qualifications listed in (1) and (2) will be the minimum for registration.

But there are many current paramedics who are competent practitioners but who do not hold those qualifications.  For them there is a grandparenting period to allow them to register.  The window for that registration is 3 years from 1 December 2018. This is designed to allow people like my correspondent to register

The ‘Qualifications for general registration in paramedicine for a limited period’ are the qualifications for registration under the grandparenting provisions.  There are three paths to registration (s 311).  They are that the applicant:

(a) holds a qualification or has completed training in paramedicine, whether in a participating jurisdiction or elsewhere, that the Paramedicine Board considers is adequate for the purposes of practising the profession; or

(b) holds a qualification or has completed training in paramedicine, whether in a participating jurisdiction or elsewhere, and has completed any further study, training or supervised practice in the profession required by the Paramedicine Board for the purposes of this section; or

(c) has practised paramedicine during the 10 years before the participation day for a consecutive period of 5 years or for any periods which together amount to 5 years and satisfies the Paramedicine Board that he or she is competent to practise paramedicine.

The Paramedicine Board has issued:

• a list of ‘adequate’ qualifications for the purpose of s 311(a) – see https://www.paramedicineboard.gov.au/Education/Qualifications/List-of-adequate-qualifications.aspx
• a list of qualifications for the purpose s 311(b) https://www.paramedicineboard.gov.au/Education/Qualifications/List-of-Diploma-level-qualifications.aspx. As the board says “Individuals can apply for registration with [those]… qualifications and associated supervised practice with a jurisdictional ambulance service …”

Even without a qualification a person can be registered if they have sufficient experience.

It follows that I can’t tell my correspondent whether it is worthwhile attempting the registration process or they should forget about it.  As with any applicant they need to look at these lists and the evidence the Board is asking for, and determine for themselves whether they think they can prove they have the relevant skills and knowledge.

More details can be found on the website of the Paramedicine Board https://www.paramedicineboard.gov.au/Education/Qualifications.aspx#approved-qualifications.

 

 

 

 

It is well known that the diploma in paramedical science issued by NSW Ambulance will be a qualification for registration as a paramedic.  But what of equivalent diplomas issued by other registered training organisations?   They will not be accepted so, asks today’s correspondent ‘… how can they recognise a diploma through NSW Ambulance when under the national training framework they have the same qualification as someone from another state?’

I infer that the ‘they’ in that question refers to the Paramedicine Board.

The answer is that ‘they’ have no choice.

To provide for paramedic registration amendments were required to the Health Practitioner Regulation National Law that has been adopted in every state and territory.  The Act says at s. 312 says:

(1) This section applies to an individual who holds a Diploma of Paramedical Science issued by the Ambulance Service of New South Wales.

(2) The individual is qualified for general registration in paramedicine for the purposes of section 52(1)(a).

(3) This section applies despite section 53.

(4) Nothing in this section makes a Diploma of Paramedical Science issued by the Ambulance Service of New South Wales an approved qualification for section 53(b).

(5) In this section–

“Diploma of Paramedical Science” means any of the following–

(a) a Diploma of Paramedical Science;

(b) a Diploma of Paramedical Science (Ambulance) or an Advanced Diploma of Paramedical Science (Ambulance);

(c) a Diploma in Paramedical Science (Pre-Hospital Care) or an Advanced Diploma Paramedical Sciences (Pre-Hospital Care);

(d) a qualification–

(i) that has replaced the diploma mentioned in paragraph (a) and is prescribed by regulation; and

(ii) issued by the Ambulance Service of New South Wales.

The role of the Paramedicine Board is to manage paramedic registration in accordance with the Health Practitioner Regulation National Law and the law says that the NSW Ambulance Diploma is a qualification for general registration. Compare this to other qualifications.

Section 53 says that a person is eligible for general registration if they hold

(a) … an approved qualification for the health profession; or

(b) the individual holds a qualification the National Board established for the health profession considers to be substantially equivalent, or based on similar competencies, to an approved qualification…

If the Paramedicine Board had approved the NSW Diploma that a person with a Diploma from another RTO could argue that their diploma was an equivalent qualification and therefore qualifies them for registration under s 53(b).  As noted however, the NSW Diploma is not an ‘approved qualification’ and s 53 does not apply (see s 312(3) and (4)).  The intention is clear, the Paramedicine Board must accept the NSW Ambulance Diploma, it is not required to accept any other Diploma no matter how closely it matches the NSW Ambulance qualification.

The Standards for VET Accredited Courses 2012 made under the National Vocational Education and Training Regulator Act 2011 (Cth) says (at [7.5]) that ‘ VET accredited courses confirm recognition to be given to the course by licensing, regulatory, professional or industry bodies where applicable.’   One could make the argument that s 312 is inconsistent with the regulation of the Vocational Education and Training (VET) sector as regulated by the Commonwealth.  Section 109 of the Australian Constitution provides that where a state law is inconsistent with a Commonwealth law, the Commonwealth law prevails.

That’s an attractive argument until we realise that the Commonwealth of Australia has no specific authority to regulate the VET sector. It does that in cooperation with the states.  The Australian Constitution says that the Commonwealth has the power to make laws with respect to ‘matters referred to the Parliament of the Commonwealth by the Parliament or Parliaments of any State or States…’ (s 51(xxxvii))).

The States including NSW have referred their powers to the Commonwealth but with some restrictions.  The Vocational Education and Training (Commonwealth Powers) Act 2010 (NSW) s 5 says that the power to makes laws with respect to ‘accreditation or other recognition of vocational education and training courses or programs’ is referred to the Commonwealth but not if the Commonwealth ‘excludes or limits the operation of a State law to the extent that the State law makes provision with respect to:…  (d) the qualifications or other requirements to undertake or carry out any business, occupation or other work (other than that of a vocational education and training organisation)…’  Without checking each state and territory one can infer that a similar provision applies there too.

The Health Practitioner Regulation National Law as adopted in each state and territory is a state and territory, not Commonwealth, law.  To the extent that the National Vocational Education and Training Regulator Act 2011 (Cth) might compel acceptance of an equivalent diploma to the  it would limit the operation of a state law (eg the Health Practitioner Regulation (Adoption of National Law) Act 2009 (NSW)) and is outside or beyond the power given to the Commonwealth and s 109 won’t help.

A person who has a qualification that purports to be ‘equivalent’ to the NSW Ambulance Diploma may want to explore this in more detail but they may find that engaging a QC (or two) to take the matter to the High Court of Australia may be prohibitively expensive.

Conclusion

The question was how can ‘they’ – the Paramedicine Board of Australia – recognise a diploma through NSW Ambulance when under the national training framework they have the same qualification as someone from another state?

The answer is that the Board has not recognised or approved the NSW Ambulance Diploma. The legislatures in each State and Territory have decided to accept that Diploma and have directed the Board accordingly. The Board has no choice in the matter.  The legislatures have also said that this is not an approved qualification and therefore the Board is not required to consider whether other Diplomas are ‘equivalent’.  The Board must accept that those that hold the NSW Ambulance Diploma are qualified for registration; they are not required to accept that any other qualification is a qualification for registration. For every other qualification – degree, diploma or certificate – it is a matter for the Board.

 

 

The correspondent who wrote to me, and prompted the answer in Paramedic registration if you are “working as a paramedic”? (August 6, 2018) has been following up with NSW Ambulance:

… on behalf of a growing number of employees who are reluctant to become registered as they are quite competent at their job and do not feel the need (or to pay) for registration, and who would not mind being called something other than “paramedic”.

In reply, the ambulance service explained that it believes that under Sections 113 and 116 of the national Law it would be insufficient simply to change uniform labelling as anyone arriving in a NSW ambulance and performing duties identical to those of a registered paramedic would effectively be being held out to be a paramedic, by both the individual and the service.  The expectation is therefore that all Ambulance Officers with the Award classification “Paramedic” (i.e. all clinical positions apart from Trainee, Intern and Volunteer) will become registered.

While NSWA is preparing to discuss with individuals their circumstances, it appears that no other option is being made available.  On the face of it, it seems the only alternative to registration in NSW is to seek reclassification as some form of non-clinical employee or to resign.  Since registration, and even the use of the term “paramedic”, have been introduced through circumstances beyond individuals’ control, it seems an unfair impost on employees who have been performing their duties safely and effectively for years.

Given your previous comments in various threads, I would welcome your further comment on the legality of this situation.

I repeat again I don’t claim any expertise in industrial law and these are industrial law issues but I will throw my 2c worth in to the debate.

Section 113 of the Health Practitioner Regulation National Law says

(1) A person must not knowingly or recklessly–

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

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

That section refers to using a title to give the impression that one is registered.  I don’t see how ‘being held out to be a paramedic, by both the individual and the service’ (even if that were established) would breach this section if their uniform clearly indicated they were something other than a paramedic.

Section 116 says

(1) A person who is not a registered health practitioner must not knowingly or recklessly– … (c) … hold himself or herself out as being registered under this Law…’

One can see how the NSW Ambulance argument applies there but equally if one was in a different uniform with different title it would seem to defeat that claim.  The Act says that it is an offence to hold oneself out as a paramedic. If there were steps to ensure that this did not happen, eg with a different uniform and badges that said ‘ambulance officer’ but not ‘paramedic’, then it would seem to me that no offence is committed under s 113 or s 116.

I think that is indeed part of the point of registration.  Today event first aid providers can supply people with all sorts of titles, including paramedic and patients and event organisers may not know what that means.  From 1 December 2018 those providers may continue to operate but everyone will know that people that have ‘first aider’ or ‘first responder’ or ‘EMT’ on their uniform are not paramedics, even though they may continue to practice as they have in the past.  Ambulance services may, in the future, chose to have ‘ambulance officers’ to do more routine or less urgent matters and save ‘paramedics’ for acute emergencies. Whether they will or not remains to be seen but it would be lawful under the Act in the same way that Assistants in Nursing exist and practice, but are not registered as nurses.

But just because there is no offence it does not mean that such an step would be reasonable or acceptable to either the government or the public.  The issue is not so much legal as political.  If the government of NSW said ‘we staff our emergency ambulances with non-paramedics’ that would be unacceptable, just as it would be to say that emergency departments are not staffed by registered doctors or nurses even if the people working there have medical and nursing degrees.  Medical practitioners are registered so everyone, including their employer, can be sure that they have been assessed and more importantly they are subject to open disciplinary proceedings and review by their peers should the need arise.

The Council of Ambulance Authorities (of which NSW Ambulance is a member) has accepted that registration is required, and governments have also accepted that the role and skills of paramedicine means that registration is justified for the benefits that will flow both to the public and the profession.  NSW Ambulance/NSW Health resisted paramedic registration when it appeared that only a degree would be an accepted qualification.  NSW Ambulance could have stayed out of the scheme and continued to employ ambulance officers who held the Diploma of Paramedical Science issued by the Ambulance Service of New South Wales.  Rather than say ‘our non-paramedics are as good as the paramedics in other states and territories’ NSW advocated for, and succeeded in ensuring that the ‘Diploma of Paramedical Science issued by the Ambulance Service of New South Wales’ is an ‘Accepted qualification for general registration in paramedicine’ – and NSW employees can be registered as a paramedic even if they don’t hold a qualification endorsed by the Paramedicine Board as a qualification for registration.  To now staff ambulances with non-registered health professionals would be inconsistent with every move that has been taken to ensure paramedicine enters the list of registered health professionals.

As for being unfair to employees there is always a transition when systems change.  If one couldn’t introduce a change to current employees nothing could ever change. One concession for current practitioners is the grandparenting clauses to allow people to register who have been working as paramedics even if they don’t have the accredited qualifications.   It may be ‘unfair’ but it is the will of the Parliament and it is the role of the executive arm of government (including NSW Health) to implement the will of Parliament.

The extent to which NSW Ambulance has to accommodate the concerns of current employees is, as I say, an industrial issue and beyond the scope of this blog.  I can imagine, however, that if NSW Ambulance did agree to continue to employ current practitioners in a clinical role but with a different uniform and different title, it would require quite a reorganisation of positions.  I would anticipate that non-registered ambulance officers would be subordinate to registered paramedics which may mean current senior staff would be considered more junior to current subordinates. Where there was clinical practice that was identified as being ‘paramedic’, NSW Ambulance may also seek to restrict the sort of practice engaged in by a non-registered employee. I can imagine that given the patient protection in registration NSW Ambulance may want to remove the drugs authority of a non-registered practitioner.    I would also anticipate that there would be a pay adjustment and a non-registered ambulance officer would be paid less than a registered paramedic.

Conclusion

If I was an employee and concerned about these issues, I’d be taking it up with my union as they are the experts in industrial law.

 

Today’s correspondent

… left NSW Ambulance after 16-17 years entering into the private world setting up my own business in Private Paramedic setting. With registration, what award would I (we) practice under and in the private industry?  How do we have different paramedic classifications such as ICP, Advanced Care , P1 etc… ?

I can’t claim to be an expert in industrial law so I can’t say what the relevant award would be.  That may be a question to be directed to Fair Work Australia.

With respect to paramedic classification, with the introduction of registration there will be only one category of registration.  A person will be registered as a paramedic.  There are minimal educational requirements and in due course there may be national definitions of scope of practice – see Moving interstate – registration and scope of practice (October 17, 2018) but initially at least it is paramedic or its nothing.

The Medical Board has different types of registration for specialist medical practitioners – see https://www.medicalboard.gov.au/Registration/Types/Specialist-Registration.aspx.  The Board also publishes ‘guidelines detailing the process for organisations to apply for the recognition of a new or amended medical specialty’ (https://www.medicalboard.gov.au/Registration/Recognition-of-medical-specialties.aspx).

In due course the Paramedicine Board may decide to introduce different types of registration to allow intensive care, extended care paramedics to have specialist registration but until then the creation of different job descriptions will be up to the employers, just as it is now.