Following public reaction to the decision in DPP v Warren and Underwood [2018] VCC 689 (see No gaol time for defendants who assaulted Victorian Paramedic (May 18, 2018)) the Victorian government announced there would be changes to the sentencing regime for people convicted of assaulting emergency workers – see Daniel Andrews MP, Premier, Protecting Our Emergency Workers: Joint Statement (21 May 2018) and Laws To Be Fixed So Jail Means Jail For Emergency Worker Attacks (22 May 2018).

The anticipated amendments were introduced to the Victorian Parliament as part of the Justice Legislation Miscellaneous Amendment Bill 2018 (Vic) (introduced on 20 June 2018).   You can read the Attorney General’s Second Reading Speech where he explains the reasons for the reforms and what the reforms are expected to achieve here – Victoria, Parliamentary Debates, Legislative Assembly, 21 June 2018, 2144 (Mr Pakula, Attorney-General).

The Bill, if passed, will make an offence contrary to ss 16, 17 or 18 of the Crimes Act 1958 (Vic), where the victim was, amongst others, ‘an emergency worker on duty’, a category 1 offence.  Section 16 refers to a person ‘who, without lawful excuse, intentionally causes serious injury to another’; section 17 refers to a person ‘who, without lawful excuse, recklessly causes serious injury to another person’ and section 18 refers to a person ‘who, without lawful excuse, intentionally or recklessly causes injury to another person’ (emphasis added).

When sentencing an offender for either a category 1 offence, a court ‘must make an order under Division 2 of Part 3’ of the Sentencing Act 1991 (Vic) (Sentencing Act 1991 (Vic) ss 5(2G) and 5(2H)).  Division 2 of Part 3 is headed ‘Custodial orders’.  Section 10AA ‘Assaulting, etc. emergency workers, custodial officers and youth justice custodial workers on duty’ appears in Division 2, Part 3.   Section 10AA says that where a person is being sentenced for an assault on an emergency worker they should receive a custodial sentence of not less than 3 years for an offence contrary so s 16 of the Crimes Act (s 10AA(1)), and not less than 2 years for an offence contrary to s 17 (s 10AA(2)). The minimum non-parole period for an offence contrary to s 18 is 6 months imprisonment (s 10AA(4)).  In any case, the court does not need to impose the minimum sentence if ‘special circumstances’ (defined in s 10A) exist.

If passed the Justice Legislation Miscellaneous Amendment Bill 2018 (Vic) will amend s 10A. The text below has the current wording of s 10A with the amendments in the Bill. What will be additional text is shown in italics, text that will be deleted is strikethrough.

(1) In this section—

“impaired mental functioning” means—

(a) a mental illness within the meaning of the Mental Health Act 1986 ; or

(b) an intellectual disability within the meaning of the Disability Act 2006; or

(c) an acquired brain injury; or

(d) an autism spectrum disorder; or

(e) a neurological impairment, including but not limited to dementia;

self-induced intoxication has the same meaning as in section 322T(5) and (6) of the Crimes Act 1958.

(2) For the purposes of section … 10AA … a court may make a finding that a special reason exists if—

(a) the offender has assisted or has given an undertaking to assist, after sentencing, law enforcement authorities in the investigation or prosecution of an offence; or

(b) the offender—

(i) is of or over the age of 18 years but under 21 years at the time of the commission of the offence; and

(ii) proves on the balance of probabilities that he or she has a particular psychosocial immaturity that has resulted in a substantially diminished ability to regulate his or her behaviour in comparison with the norm for persons of that age; or

(c) the offender proves on the balance of probabilities that—

(i) subject to subsection (2A) at the time of the commission of the offence, he or she had impaired mental functioning that is causally linked to the commission of the offence and substantially reduces the offender’s culpability; or

(ii) he or she has impaired mental functioning that would result in the offender being subject to substantially and materially greater significantly more than the ordinary burden or risks of imprisonment; or

(d) the court proposes to make a Court Secure Treatment Order or a residential treatment order in respect of the offender; or

(e) there are substantial and compelling circumstances that are exceptional and rare and that justify doing so.

(2A) Without limiting subsection (2), in the case of an offence against section 18 of the Crimes Act 1958 committed by a young offender against an emergency worker on duty, a custodial officer on duty or a youth justice custodial worker on duty, a court may make a finding that a special reason exists if-

(a) it believes that there are reasonable prospects for the rehabilitation of the young offender; or

(b) it believes that the young offender is particularly impressionable, immature or likely to be subjected to undesirable influences in an adult prison.

(2A) Subsection (2)(c)(i) does not apply to impaired mental functioning caused solely by self-induced intoxication

(2B) In determining whether there are substantial and compelling circumstances under subsection (2)(e), the court—

(a) must regard general deterrence and denunciation of the offender’s conduct as having greater importance than the other purposes set out in section 5(1); and

(b) must give less weight to the personal circumstances of the offender than to other matters such as the nature and gravity of the offence; and

(c) must not have regard to—

(i) the offender’s previous good character (other than an absence of previous convictions or findings of guilt); or

(ii) an early guilty plea; or

(iii) prospects of rehabilitation; or

(iv) parity with other sentences

(3) In determining whether there are substantial and compelling circumstances under subsection (2)(e), the court must have regard to— …

(ab) the Parliament’s intention that a sentence of imprisonment should ordinarily be imposed for an offence covered by section 10AA(4); and…

(c) whether the cumulative impact of the circumstances of the case would justify a departure from that sentence and, where relevant, minimum non-parole period.

(4) If a court makes a finding under subsection (2), it must—

(a) state in writing the special reason; and

(b) cause that reason to be entered in the records of the court.

(5) The failure of a court to comply with subsection (4) does not invalidate any order made by it.

There are other amendments but for the sake of space, I invite subscribers to this blog to read the Minister’s second reading speech for the details.

Discussion

It is not clear how these changes would affect the outcome of DPP v Warren and Underwood were that case to arise under these new laws. In that case, the submission of counsel and the decision of the judge were based on the sections as they are now.  We cannot know whether the judge would have found that the various circumstances in the proposed s 10AA would be met if the case had to be determined under this proposed law.

We can note that at least in the judgement there was no reference to intoxication at the time of the offence.  If that is the case the new s 10A(2A) won’t be relevant.  As the Minister says:

The Bill will clarify when impaired mental functioning can be established as a special reason. An offender will not be able to rely on impaired mental functioning where it was caused solely by self-induced intoxication. An offender who has a genuine mental illness or neurological impairment, but was under the influence of alcohol or another drug at the time of the offending, will still be able to rely on a special reason if there is evidence that the impaired mental functioning was due to their pre-existing impaired mental functioning and not their intoxicated state.

In DPP v Warren and Underwood there was nothing in her honours reasoning to suggest that the accused were relying on ‘impaired mental functioning … caused solely by self-induced intoxication’.  They were relying on ‘a genuine mental illness or neurological impairment’.  There state of intoxication at the time of the offence was not part of her honours reasoning so to that extent it would appear that these amendments would make no difference if DPP v Warren and Underwood were sentenced after these amendments come into force.

The Minister also says:

The Bill will also include a new exception to the requirement that a court must impose a custodial sentence for people who commit certain Category 1 offences (other than those involving gross violence) against emergency workers, custodial officers or youth justice custodial workers on duty and whose mental or other impairment substantially and materially reduces their culpability.

Where this exception applies the court will be able to impose a new mandatory treatment and monitoring order, alone or in combination with imprisonment. This new order will require the imposition of two mandatory conditions — requiring the offender to either attend treatment or comply with a justice plan to address their specific impairment, and requiring regular attendance at court for the purposes of monitoring compliance. A mandatory treatment and monitoring order will also be able to be combined with a period of imprisonment or any other optional CCO conditions. The consequences for contravening a mandatory treatment and monitoring order will be more significant than the consequences currently in place for breaching a CCO, with limited sentencing options available for the breach of the order and the original offences.

The test will be that ‘the offender proves on the balance of probabilities that, at the time of the commission of the offence, the offender had impaired mental functioning that is causally linked to the commission of the offence and substantially and materially reduces the offender’s culpability’.  It is likely that Warren and Underwood could have met that test.  If that is the case they may have received a mandatory treatment and monitoring order.  It has to be noted that in the decision that was the subject of criticism, they were subject to orders to continue with treatment and to be subject to monitoring including court supervised reporting.   In effect they received the sentence that would be required under the new provisions.

Conclusion

In DPP v Warren and Underwood the sentencing judge was required to impose a custodial sentence unless special circumstances existed. She found those circumstances did exist so exercised her discretion according to law.  The obligation to impose the custodial sentence, except when special circumstances existed, was all found in Division 2 of Part 3 of the Sentencing Act 1991 (Vic).

With the passage of the Justice Legislation Miscellaneous Amendment Bill 2018 (Vic) a sentencing court will still have to impose a custodial sentence under Division 2 of Part 3 of the Sentencing Act 1991 (Vic) unless special circumstances exist.  The definition of ‘special circumstances’ will have changed and it will be harder to satisfy the new tests, but it does not mean that the defendants in DPP v Warren and Underwood would not meet those tests if the case were to be heard once the changes have been made.

The next step

The Bill still has to pass through both houses of parliament so it may be subject to change.  It must then receive Royal Assent from the Governor.  The Governor will never refuse Royal Assent to a bill passed by Parliament (so those that hope that our system of government imposes a final check on parliaments being oppressive are sadly mistaken). Once assented to the law will commence on the various dates set out in s 2 of the Bill.

This question again revisits the issue of ambulance bills where the patient did not ask for the ambulance to be called. For related posts see:

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

Today’s question considers the position in the Australian Capital Territory. My correspondent:

… had someone call and ambulance to my address despite myself and others suggesting not to call as it was not necessary and now I have been given the bill to pay. Am I required to pay as it was called for me despite not giving consent or is the caller responsible for the fee, if so how do I dispute this fee or transfer the fee to the original caller without court interaction.

The caller is not liable

First and foremost, the caller is not liable and never will be.  No-one is going to set up a system where a person who calls triple zero is liable for the bill if the patient refuses to pay.  People have to be able to call triple zero when they don’t know if an ambulance is required (eg they’ve just seen the car accident) or where they think an ambulance is required even if the patient does not.  In the context of an institution such as the Australian National University consider a person who is injured or ill in the library but doesn’t want an ambulance called as they can’t afford it.  The library staff can’t just leave the person there and what’s more they can’t just leave a person who they think actually needs an ambulance.  The person may want to refuse treatment but that is harder to do when paramedics are on scene saying ‘you really need to go to hospital’.  There is no chance that a person who rings for an ambulance is or will ever be liable for the bill.

The Emergencies Act 2004 (ACT) and the Emergencies (Fees) Determination 2018

The only person who can be liable, if anyone, is the person who receives the care.  In the ACT the relevant legislation is the Emergencies Act 2004 (ACT).  Section 201 says:

(1) The Minister may determine fees for this Act.

(2) A fee determined for a service provided to a person by an emergency service is payable by the person even if the person did not ask for, or consent to, the provision of the service.

The Emergencies (Fees) Determination 2018 sets out the fees for ambulance (and other emergency) services.    Fees for items 294 (Emergency Medical Treatment), 295 (Non-Emergency Medical Treatment and Transport), 296 (Supply of ACTAS ambulance vehicles and/or personnel) and 298 (Aero-medical retrieval by the ACT Government’s aero-medical provider) are to be paid by the person receiving the service ([4(4)]).

There are exceptions.  Ambulance fees in the ACT do not have to be paid ([5]:

(a) by ACT school students who are injured or become ill at school or during approved school excursions within the ACT; or

(b) by residents of the ACT, New South Wales, Victoria, Tasmania or Northern Territory who, at the time the service was provided, held a current valid relevant concession card which includes an entitlement to free ambulance services under Commonwealth Government Department of Human Services provisions; or

(c) by persons who have been arrested and/or are in lawful custody; or

(d) by an entitled person, as defined in the Children and Young People Act 2008; or

(e) where the ambulance services were provided to a person in relation to performing a good Samaritan act; or

(f) for ambulance services provided following an incident involving a motor vehicle on a road or road related area in the ACT; or

(g) where ambulance services were provided to a person who was deceased, or was unable to be resuscitated, while in the care of ACTAS officers; or

(h) by a person who is a victim of domestic or family violence; or

(i) by a person who is a victim of sexual assault.

The Chief Officer – Ambulance Service may waive the fees where “exceptional personal or other circumstances apply to a person to whom ambulance services were provided” ([6(2)]).  Exceptional personal or other circumstances are set out in Schedule 2.  They are:

a. A charity, financial aid organisation, hospital or other social aid organisation provides evidence demonstrating that exceptional personal circumstances apply to the person and that requiring the person to pay would cause unreasonable financial hardship to the person;

b. The ambulance services were provided to a person aged under 18 years following an accident or other event that resulted in the person being the only survivor in their immediate family;

c. A person had applied for, but not yet received, a relevant concession card prior to receiving the ambulance services, and the application for the card was subsequently approved (noting that holders of relevant concession cards are not charged for ambulance services);

d. The ambulance service was provided to a person who is undergoing extensive and life saving medical treatment and who as a result is reliant on assistance from government or not-for-profit organisations in order to meet their basic costs of living and the requirement to pay for the ambulance services would cause unreasonable hardship;

e. Any other circumstances exist that in the opinion of the Chief Officer should see the fee waived.

Conclusion

As my correspondent was aged over 18 at the time, he or she is responsible for the paying the fees charged in accordance with the Emergencies Act 2004 (ACT) and the Emergencies (Fees) Determination 2018. Issues of consent or contractual principles are not relevant as the obligation to pay is a statutory obligation. It exists because the Emergencies Act says it does.

If my correspondent wants to avoid paying the bill he or she would have to satisfy the Ambulance Service that one of the exceptions listed in paragraph 5 apply.  If they do not apply an application could be made to waive the fee on the basis that ‘exceptional personal or other circumstances apply’.

Today’s question revisits the question of covert audio recordings (and for related posts, see https://emergencylaw.wordpress.com/?s=listening+devices).

Is it Ok for a Rural Fire Service (RFS)/Rural Fire Service Association (RFSA) member to covertly voice record meetings of either organisation?

The reference to the RFS and RFSA means that we’re talking about New South Wales.  The relevant Act in NSW is the Surveillance Devices Act 2007 (NSW).  A listening device is defined (in s 4) 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.

It includes a dedicated audio recorder but also your smart phone. So, is it ok to covertly or secretly record meetings?  Prima facie the answer is ‘no’.  Section 7(1) says:

A person must not knowingly install, use or cause to be used or maintain a listening device:

(a) to overhear, record, monitor or listen to a private conversation to which the person is not a party, or

(b) to record a private conversation to which the person is a party.

There are exceptions and the most common one is in s 7(3) which says:

Subsection (1) (b) does not apply to the use of a listening device by a party to a private conversation if:

(a) all of the principal parties to the conversation consent, expressly or impliedly, to the listening device being so used, or

(b) a principal party to the conversation consents to the listening device being so used and the recording of the conversation:

(i) is reasonably necessary for the protection of the lawful interests of that principal party, or

(ii) is not made for the purpose of communicating or publishing the conversation, or a report of the conversation, to persons who are not parties to the conversation.

What is a private conversation?

A private conversation is defined to mean

…words spoken by one person to another person or to other persons in circumstances that may reasonably be taken to indicate that any of those persons desires the words to be listened to only:

(a) by themselves, or

(b) by themselves and by some other person who has the consent, express or implied, of all of those persons to do so,

but does not include a conversation made in any circumstances in which the parties to it ought reasonably to expect that it might be overheard by someone else.

What sort of meeting are we talking about?

It follows that the answer ‘no’ is too simple.  The first question to consider is whether what is being recorded is a private conversation?  If the meeting concerned is a public meeting, say a meeting of the RFSA to discuss a constitutional issue or amendment, open to all members and subject to robust debate, it may be hard to say that is any sort of ‘private conversation’ in which case s 7(1) doesn’t apply. Equally a public meeting hosted by the RFS to discuss community engagement and preparedness is unlikely to be an example of a ‘private conversation’.

If the meeting in question is a private conversation and the person doing the recording is a party to the conversation, then the recording is permissible provided s 7(3) is met.  Given we’re talking about a covert recording it follows that s 7(3)(a), everyone consents, does not apply so the answer has to be found in s 7(3)(b) and that requires consideration of the motive for making the recording and what the person intends to do with it once the recording is made.  The obvious example where s 7(3)(b) may be relevant is where a member has been called to a meeting that the member understands is disciplinary in nature and the member wants an accurate recording, so they can obtain later legal advice on the process.

Even if covert recording is allowed, it’s better not to

Even if there is no breach of the Surveillance Devices Act it stands to reason that covert recording should be avoided whenever possible.  It’s always best to advise people that they are being recorded and obtain consent where consent is necessary.  Even where the person’s consent isn’t required, eg recording a public meeting, it is still better to tell people that it is happening.

Conclusion

It is illegal to covertly record a private conversation unless the person doing the recording is one of the participants in the conversation and the recording ‘is reasonably necessary for the protection of the lawful interests of that principal party’.

Today’s question relates to paramedic qualifications in Western Australia.  The children of a proud paramedic

… are seeking a career in the same field. My son is in his second year of studies at Edith Cowan University here in Perth and has along with a number of his student cohort are considering how to further their careers and gain experience on road.

WA is unique (along with the NT) in that the ambulance provider is (as you are aware) St John Ambulance (SJA), a private company contracted to provide the service to the WA government not a government agency.

It seems that when inquiries were made as to the possibility of employment with SJA after the completion of their degrees they were told that if they were to be employed each would have to complete the degree offered and endorsed by SJA at Curtin University in Perth.

As a private entity I understand that SJA seems to be able to do whatever it likes with impunity, but my question is this, how can the ECU degree be totally disregarded? Would this be grounds for discrimination? My son like many others does not wish to go interstate or overseas to practice their profession and this treatment does seem manifestly unfair.

Please could you offer your thoughts on this for me, and should this be raised with Paramedic Australasia/ AHPRA?

If St John (WA) will only employ people with the Curtin University degree that would appear to be a very short-sighted approach and very much limit the pool of potential employees.  The website for St John (WA) says, with respect to graduate employment that the essential qualification is a ‘Bachelor Degree of Health Science – Major in Paramedicine or equivalent’.  It does not specify the Curtin degree. (It also says candidates have to have a ‘Current First Aid Certificate (HLTAID003)’ which seems a bit odd).  St John Ambulance (WA) is a member of the Council of Ambulance Authorities. That Council has endorsed degree programs which qualify a candidate for employment as a paramedic – the degrees from both Edith Cowan and John Curtin universities have been endorsed by the CAA.

The Paramedicine Board has indicated that with registration, the CAA approved degrees will be accepted as degrees that qualify the graduate for general registration.

The reference to the Curtin degree is made by St John (WA) when talking about student employment.  The information package says:

It is important to note that candidates who are successful in gaining a position as a Student Ambulance Officer (SAO) with St John will undertake a Bachelor of Science, Major in Paramedicine at Curtin University.

It would appear that if the question was asked about employment after graduation, the advice that they would have to complete the Curtin degree was simply wrong.

If that were the position it would be odd.  It wouldn’t be unlawful discrimination.  An agency can’t discriminate on prohibited grounds (gender, sexual orientation, marital status, religion etc) but an employer can decide that they want to accept a particular qualification.  To get NSW on board, the Health Practitioner Regulation National Law (s 312) says that the Diploma of Paramedical Science issued by the Ambulance Service of New South Wales is an accepted qualification for general registration in paramedicine.  The Paramedicine Board will have to accept students with this qualification even though they have not ‘approved’ it; they are directed that this is an accepted qualification.  But it is the only diploma that must be accepted.  The Board may refuse to register someone who has completed an identical diploma by another registered training organisation.

To return to St John (WA) it would be pointless for St John to take the view that they would only employ Curtin University graduates as that would stop graduates coming to WA from interstate or overseas but I don’t suppose it’s illegal.  No doubt the issue will be solved (if it exists) with registration when one would anticipate the required qualification for employment will be that the candidate is a registered paramedic.

Conclusion

Looking at the information provided by St John it appears that the advice, given to students at Edith Cowan University, that for employment they would ‘have to complete the degree offered and endorsed by SJA at Curtin University in Perth’ is not correct.  It is not what St John says. Their website says a candidate needs a ‘Bachelor Degree of Health Science – Major in Paramedicine or equivalent’.  The Edith Cowan degree is endorsed by the CAA and will be a qualification for registration as a paramedic so no-one could sensibly argue that it’s not equivalent to the Curtin University degree.

If however St John did for some reason elect to only employ Curtin graduates, it would be stupid, but I don’t know that it would be illegal.

See also: RPL when converting from paramedic diploma to degree – but do you even need a degree? (May 2, 2018)

This question raises the old issue of can I use my specialist skills when working with another agency – for other posts on this topic, see:  https://emergencylaw.wordpress.com/?s=volunteer+scope+of+practice

The basic principle will be that everyone wants you to save the patient’s life if you can.  No-one will look favourably on a person who says ‘I could have done more but I was concerned to cover my, or my agencies, arse so I did nothing and let the patient die’.  Or to be more polite and refer to the decision of the Scottish Sheriff in Fatal Accident Inquiry Under The Fatal Accidents And Sudden Deaths Inquiry (Scotland) Act 1976 Into The Death Of Allison Hume [2011] FAI 51 who said:

[The Incident Controller] in particular, considered that the rescue operation was “a success”. In his view he had adhered to the policies and procedures set out by Strathclyde Fire and Rescue Service. He had obtempered to the letter the instruction contained within the Memoranda from Strathclyde Fire and Rescue Service of the 14 and 27 March 2008. There had been no casualties other than the one to whom the Service was called upon to rescue.

Unfortunately this was not a successful operation: a woman died who had … survivable though life threatening injuries…

A person who fails to act when they could, but says ‘I strictly followed the agency rules’ is also not likely to be commended by the Sheriff or Coroner.  So now to turn to the question that arises in light of pending paramedic registration.  The hypothetical scenario is

… assume a paramedic is registered and maintains their skills through volunteer work or casual work and CPD.

They leave their state ambulance service role and move to the state fire department as a firefighter. In this state, the fire department is tasked with providing EMR (Emergency Medical Response) providing advanced first aid including BVM/Suction/o2 therapy to conscious patients, CPR and AED as well as other first aid where needed. If this paramedic who is now employed as a firefighter but still fully registered is called to an EMR event are they safe to only practice within the very specific protocols outlined by the fire department’s EMR protocol? If the paramedic is on the scene, as a firefighter, and observes something occurring which requires management outside the firefighter EMR skillset before the arrival of the ambulance and they do not intervene is there a liability?

If the ambulance arrives and the paramedics recognize the firefighter who used to work with them and is still registered (as described above) and request assistance where providing assistance would drastically improve outcome/save a life. Is the firefighter/paramedic to refuse, or assist? Again would there be liability here?

The first issue I need to consider is what does my correspondent mean by liability?  If they mean liability to pay damages, then the firefighter is an employee and the employer will be liable for any negligence.  Second if they are a registered paramedic we need to infer that they are actually competent and know what they are doing.  People have to back themselves.  There are no cases of paramedics being sued or liable. There won’t be liability of they perform their task competently and/or don’t make the situation worse.   Assuming the paramedic’s competent, liability for acting can’t be imagined.

Not acting is another matter.  Again however one needs to consider what is that they could do?  If they’re responding with the fire brigade they’re not going to have a drug kit, or an intubation kit, or any other ‘paramedic’ kit so what might we anticipate that they could do that a firefighter could not do?  But let us assume that there is some skill or procedure that the paramedic is trained in, is competent in, and which is not contra-indicated on clinical grounds.  The only thing stopping him or her doing it is that it’s not in the fire brigade procedures manual.

The fire brigades manual is however the minimum standard.  It’s not written for paramedics.  Assume that the patient dies and the evidence is that the procedure we have in mind would have saved them.  Who would you sue?  You know there is a paramedic there, you know they knew what to do and could do it but they chose not to because a rule book didn’t say they could.   Whether you win or lose that case it’s going to be unpleasant.

You would still sue the fire brigade – first rule of litigation is sue the defendant with money.  The action against the fire brigade would be based on the argument that they owed a duty of care to their patient particularly if EMR is one of their functions, and a reasonable fire brigade would not stop a paramedic using his or her knowledge and skills just because the fire brigade didn’t anticipate that they would have a registered paramedic on their appliance.  That is not to say that they would need to equip every appliance as an intensive care ambulance if there is a paramedic on board (which goes back to the question of what could the paramedic do without his or her kit to hand) but that if there is something that is indicated and for which the firefighter is trained and competent, why would any reasonable agency, with a core duty of saving life, want to stop that?

As for paramedic disciplinary action, a paramedic (once registered) may be subject to disciplinary action if he or she demonstrates ‘knowledge, skill or judgment possessed, or care exercised by, the practitioner in the practice of the health profession in which the practitioner is registered is below the standard reasonably expected of a health practitioner of an equivalent level of training or experience’ (Health Practitioner Regulation National Law Act 2009 (Qld), Schedule, cl 3).

What would practitioners of ‘equivalent level of training or experience’ expect?  On the one hand they would expect a paramedic to use the skills that they have been trained in to provide the best possible care to their patient.  On the other they may accept, or expect, a paramedic to practice as directed by his or her employer.  As a potential patient I would hope that they would expect the former.

Accordingly my first conclusion is that I can anticipate that there would be liability if ‘the paramedic is on the scene, as a firefighter, and observes something occurring which requires management outside the firefighter EMR skillset before the arrival of the ambulance and they do not intervene’.

As for the second question

If the ambulance arrives and the paramedics recognize the firefighter who used to work with them and is still registered (as described above) and request assistance where providing assistance would drastically improve outcome/save a life. Is the firefighter/paramedic to refuse, or assist? Again would there be liability here?

I cannot imagine why the paramedic/firefighter or indeed any firefighter would refuse to assist paramedics who asked for help particularly if the firefighters were there in an EMR capacity and so were not distracted fighting a fire.  If it could be shown that the failure to assist did make the situation worse, and there was no good reason for it (eg being engaged in firefighting) then again there could be liability.

For similar discussions see:

• I’m trained but am I allowed to use my skills? (May 25, 2018);
• Victorian Paramedic and CFA volunteer assisting with patient care (August 25, 2016); and
• NSW Paramedic and fire fighter – when does one role start and finish? (July 8, 2015)

A volunteer with Victoria’s Country Fire Authority (the CFA) was recently:

… made aware that the CFA, intend to implement new social media policy. The CFA have released a draft copy in order to gain feedback on the policy prior to implementing it.

The background to this policy and a link to it can be found here: https://www.vfbv.com.au/index.php/component/k2/item/630-draft-business-rule-traditional-social-and-digital-media

The policy appears to be very broad. It appears to make (for example) circumstances where I disagree with the Victorian Government’s stance on presumptive cancer Law on social media, a potential breach of this policy (subject to someone’s interpretation or feelings on the matter) if somewhere on my social media account, there is a picture of me in my firefighting uniform.

It also makes being part of a group on social media a breach of the policy where the group may be considered offensive.

My question is: Does this policy breach the Charter of Human Rights and Responsibilities Act 2006 (Vic) specifically Sections 15 and 16 which pertain to freedom of opinion, expression and association, or any other legislation you are aware of?

This question is impossible to answer in the abstract. The policy won’t breach the Charter, even if examples of its application might.   The answer to the question will therefore need specific facts to answer ‘does this attempt to apply the policy breach the charter?’   We can however identify some issues.

Victoria is one of the few jurisdictions to have a statement of basic human rights (another is the ACT see Human Rights Act 2004 (ACT)).  Sections 15 and 16 of the Charter of Human Rights and Responsibilities Act 2006 (Vic) say:

Freedom of expression

(1) Every person has the right to hold an opinion without interference.

(2) Every person has the right to freedom of expression which includes the freedom to seek, receive and impart information and ideas of all kinds, whether within or outside Victoria and whether—

(a) orally; or

(b) in writing; or

(c) in print; or

(d) by way of art; or

(e) in another medium chosen by him or her.

(3) Special duties and responsibilities are attached to the right of freedom of expression and the right may be subject to lawful restrictions reasonably necessary—

(a) to respect the rights and reputation of other persons; or

(b) for the protection of national security, public order, public health or public morality.

Peaceful assembly and freedom of association

(1) Every person has the right of peaceful assembly.

(2) Every person has the right to freedom of association with others, including the right to form and join trade unions.

Apart from this statutory right, the High Court of Australia has found that the Australian Constitution contains an implied right of freedom of political communication.  A law that burdens ‘freedom of communication about government or political matters, either in its terms, operation or effect’ will be invalid unless the law is ‘reasonably appropriate and adapted to serve a legitimate end, the fulfilment of which is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government …’ (Lange v Australian Broadcasting Corporation (1997) 145 ALR 96, 112).  The CFA policy is not legislation but the High Court’s test is still worth bearing in mind.

What is notable in both s 15 and the decision in Lange, is that the right to freedom of expression is not unlimited.  A CFA volunteer who disagrees with government policy may be better placed than non-members to advocate for a change in policy.  To curtail their right to engage in political debate on the value of a policy and to try to bring pressure to bear on government or to persuade elector’s wold appear to be a breach of the Lange principal.  On the other hand, to disseminate information that ‘fails to respect the rights and reputation of other persons’ (which would include the CFA itself) may not be protected by s 15 of the Victorian Act.  Further any restriction that is ‘reasonably appropriate and adapted to serve a legitimate end’ of the CFA will not breach the Lange principle.

But that’s as far as I can take it.  The Draft Business Rule – Traditional Social and Digital Media appears to be available only to members of the CFA and who can sign into the CFA website.  As I’m not a member of the CFA I don’t have access credentials.  In the absence of the draft policy there is nothing useful I can say on its terms.

Postscript

Not surprisingly, having written the above, I was sent a copy of the draft rule.  It seems to me that the draft business rule is very much limited to operational issues such as taking photos and making information available about CFA operations.  It is not unreasonable to require CFA members when posting in that capacity to ([19]):

a) Be polite, courteous and respectful

b) Respect the privacy and dignity of individuals and organisations

c) Consider how comments and remarks may be taken out of context.

It also seems reasonable, to ask CFA members not to ‘Discuss or disclose CFA information that is not publicly available, whether confidential or not’ but that has to be subject to limitations.  Discussing documents, such as the Draft Policy itself would seem to be part of the political process.  It is part of ‘the constitutionally prescribed system of representative and responsible government’ to engage in debate with events that occur within organisations and that can’t or shouldn’t be stifled by attempts to restrict public access.  The very act of ‘disclosing CFA information that is not publicly available’ may be an important part of that political process.

There is legal protection for whistleblowers (see https://www.premier.vic.gov.au/greater-protection-for-whistleblowers/) but that would apply to appropriate protected disclosures, not putting evidence of corruption on social media.  But short of that one only has to consider recent issues involving the CFA including drafts of the various enterprise agreements that were appropriately aired in public as part of the political process.   I would agree that restraining that sort of conduct may be a breach of both the Victorian Act and the Lange principle but it is not axiomatic that the draft rule does that. This is the context where one can’t answer the question unless and until an attempt is made to use the policy to curtail legitimate political expression.

The policy doesn’t say that a member can’t comment on political or policy issues such as ‘the Victorian Government’s stance on presumptive cancer Law’.  If one posted a letter or social media post and said ‘I’m a member of the CFA and in that capacity my experience is … and the need for reform is …’ that can be done in a way that is ‘polite, courteous and respectful’ and is not ‘offensive, objectionable or illegal’ ([21]).

One paragraph that may cause objection (as I see it) is [20].  It says:

A CFA staff or volunteer’s association with some online-groups, pages or individuals could be seen as an endorsement of their views and by extension that of CFA.  Association with individuals, activities or social media pages and groups that may damage the reputation of CFA should be avoided.

One could argue that prima facie that’s contrary to the Charter of Human Rights and Responsibilities Act 2006 (Vic) s 16 but I don’t think it is. Consider a situation where a person has joined a neo-Nazi group advocating hatred and violence against particular groups in the community based on their religion or gender.  Having a photo of a member in their CFA turn-out kit would certainly be contrary to CFA values and I don’t think prohibiting that action would be an unreasonable limitation.  Taking action because the person is seen to be a member of Volunteer Fire Brigades Victoria, would be.

As noted this is the sort of question that can’t be answered in the abstract.  The policy, if adopted, does not prohibit legitimate political engagement.  A person who is commenting on a matter such as government policy may want to point out that they are a member of the CFA because that gives greater weight to their views – ‘I’m commenting on some policy relating to fire and I have relevant experience …’  If they are engaging in legitimate political debate then I would suggest that a court would find that the CFA policy can’t be used to restrain that activity.

In the absence of any specific example however, as I read the document, it doesn’t on its face prohibit legitimate political discussion but it does point out that if you are known as a member of the CFA you should behave in a way that is ‘polite, courteous and respectful’ and does reflect on the CFA.  If your political response is to call for violence, apart from being criminal it may breach this policy. If your response is to say people should vote for one party in favour of another as the policies of that party will be better for CFA volunteers that would be a different matter.

 Conclusion

It is my view that the draft policy does not, on its face ‘breach the Charter of Human Rights and Responsibilities Act 2006 (Vic) specifically Sections 15 and 16’ but there is no doubt attempts to use it could.  It would be a matter of waiting to see how it is applied to answer that question in specific circumstances.

The view from the United States

Social media commentary appears to get US firefighters into trouble all the time.  There a firefighter’s rights to make public comment are confirmed by the US Constitution. The first amendment to the US Constitution says:

Congress shall make no law … abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

But even so fire departments have the right to restrict public comment by firefighters and have taken disciplinary action with respect to offensive and other posts.  For details of many such cases, see the posts on Curt Varone’s Fire Law Blog- http://www.firelawblog.com/?s=social+media

 

 

 

 

Today’s correspondent says:

There is some dispute in my area about who should be providing assistance to NSW Ambulance.

NSW SES is the primary rescue agency for the area and believe that assisting ambulance lift/carry/extricate/load an injured person should be considered rescue and as such feel that they should be called out as the rescue agency.

Members of F+RNSW (secondary rescue) are aware that in many areas their agency is called to assist ambulance as listed above.  In some cases they would be the primary rescue agency and in other cases not.

I am somewhat between a rock and a hard place; I am employed as a paramedic with NSW Ambulance, I also volunteer with NSW SES (and have quite the loyalty to that agency) and the NSW RFS and have developed friendships with F+RNSW members.  Everywhere I turn I am asked about this and I’m not really sure of the answer.

I’ve tried finding information from SRB pages and from AustLII but nothing is particularly clear on the matter – any advice?

The question of who should be called to assist is not really a legal question.  The answer depends on who can best assist and that will vary with the location and the task required.

To start with the law, it is a function of the NSW SES (State Emergency Service Act 1989 (NSW) s 8(g)):

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

It is a function of the NSW Rural Fire Service ‘to assist other emergency services organisations at incidents and at emergencies under the control of those organisations’ (Rural Fires Act 1997 (NSW) s 9(b)).

The Fire Brigades Act 1989 (NSW) does not list a similar function for Fire and Rescue NSW but s 7(1) says:

The Commissioner is authorised to take measures anywhere in the State for protecting persons from injury or death and property from damage, whether or not fire or a hazardous material incident is involved.

Assisting NSW Ambulance will be taking measures to protect the patient from injury or death and the Commissioner can authorise a fire brigade to attend and provide that requested assistance.

Fire and Rescue NSW, the State Emergency Service and now the Rural Fire Service all operate accredited rescue units under the State Emergency and Rescue Management Act 1989 (NSW). Rescue is rather unhelpfully defined as ‘the safe removal of persons or domestic animals from actual or threatened danger of physical harm’ (s 3). That definition is unhelpful as it covers so much that does not require a rescue unit.  In one sense it tells rescue units what they have to do, so an accredited rescue unit can’t complain when it’s tasked to rescue a kitten.  But so many agencies and people do things that involve ‘the safe removal of persons or domestic animals from actual or threatened danger of physical harm’ but are not conducting a ‘rescue’ eg the RSPCA that impound a neglected animal or an organisation that provides a safe-haven at a music festival (eg Red Frogs).

The unhelpful nature of the definition can be seen in s 51(1).  That section says:

An emergency services organisation other than the NSW Police Force must, immediately after the organisation becomes aware of an incident that requires or is likely to require the rescue of any person, notify a member of the NSW Police Force of all relevant information concerning the incident.

If Ambulance are called to a person fallen at home, they are going to treat the person and if necessary remove them to hospital ie to remove them from danger of physical harm, but that’s hardly a rescue and they don’t have to notify police of every call they get.

It is not an offence to rescue someone if you do not operate an accredited rescue unit.  The SES, Fire and Rescue NSW, NSW Police, NSW Ambulance as do others, safely remove ‘persons or domestic animals from actual or threatened danger of physical harm’ all the time even if the unit is not the, or an, accredited rescue unit.  It is an offence to hold oneself out as a rescue unit without accreditation (s 53).

The police are responsible for coordinating rescue (s 50) but they are not limited to calling the accredited rescue unit or units (State Rescue Policy [1.12]).  In any event that function does not fall on police if

… the control of the rescue operation is vested by law in another agency, such as:

(a)          a rescue operation in which the person or property is endangered by fire and at which a member of a Fire Brigade is in charge, or

(b)          a rescue operation which results from an emergency and which is subject to the control of another agency in accordance with Part 2.

Part 2 deals with the creation of the State Emergency Management Plan (the SEMP).  The SEMP says (p. 64) that NSW Ambulance is a:

Supporting agency responsible for pre-hospital management of all casualties including the establishment of casualty triage, treatment and transport.

Discussion

In an all hazards/all agencies model, each of the services is available to assist the others in responding to emergencies.  This is reflected in the legislation, and in particular the SES and RFS legislation.

The issue of who should assist will depend on what assistance is required.  If it is a traditional ‘rescue’ (and the better guide to what that means is not the Act but the State Rescue Policy that defines the types of rescues and the competencies of the various rescue units) then one would expect ambulance to notify the police that rescue assistance is required and leave it to the police to coordinate the response.  Accordingly if ambulance are called to a motor vehicle accident or an industrial accident I would anticipate that they would notify police as required by s 51 of the State Emergency and Rescue Management Act and police would probably call the accredited rescue unit.

Where, on the other hand, the call is not traditional rescue but one where the assistance is really a call for extra staff to help lift and carry the patient the ambulance can call whatever agency they want. Which one is the best to assist will vary.  In the city or an urban area they might prefer to call FRNSW if the firefighters are on station as they will get a better response time and it avoids calling SES volunteers from work.  In another situation it may be better to call the SES so that the community is not deprived of fire protection by calling out the fire brigade.  In rural areas the Rural Fire Service may have more local volunteers and a better response time and local knowledge.

Even where the situation is considered a ‘rescue’ and ambulance ask police to coordinate the provision of assistance, police can apply the same considerations. They don’t have to call the accredited rescue unit and they may determine that typical rescue skills and tools are not required. If all that’s required is some extra hands they can call the agency that they think is best able to assist in all the circumstances.

Conclusion

There is no legal rule as to who should provide assistance to NSW Ambulance.  It’s up to the ambulance service, or the police (depending on who’s coordinating the response) to call on the agency that they think is best positioned to provide the assistance they require in the particular circumstances.

Today’s question relates to the impact on good Samaritans of their efforts to assist.  The case at hand involved two bystanders who assisted a person who had collapsed, providing CPR until the arrival of the ambulance.

When the paramedics arrived and took over they told the boys that they did a great job and most probably saved her life. They were however really shaken and upset all weekend and they felt awful that they didn’t know if the woman lived or not and whether they had done everything they could and that they felt there should have been a follow up from AV showing appreciation and giving them an indication of the condition of the woman.

It occurs to me that there may be immediate or long term mental health outcomes for the community members who assist a person when waiting for paramedics to arrive. Is it possible that the Services have a duty of care to check up on and debrief people who are involved as described?

The answer is that there could be no duty on the ambulance service to ‘check up on and debrief people who are involved as described’.

With respect to the establishment of a duty of care, in the circumstances described the ambulance service is not responsible for the person’s decision to assist or the trauma that they face.  A person’s decision to step up is there’s alone.  In the absence of any control over the risk the ambulance service can’t be under a duty of care to protect people from the risk.

Even if there is a foreseeable risk of harm, ambulance services are responders.  They respond when requested. An ambulance service may not transport a patient either because the patient refuses or after discussion it’s agreed that transport is not the best option.  Either way ambulance doesn’t have to ring back to the next day to see how the patient is going.  If there’s no duty in those circumstances, there could be no duty in the more general case.

Even if there could be a duty the question becomes what would a reasonable service do about it?  Remember that the response to a foreseeable risk (where there is a duty to respond to the risk) requires a consideration of “… the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities’ (Wyong Shire v Shirt (1980) 146 CLR 40, 48).

Consider the ‘expense, difficulty and inconvenience of taking alleviating action’ ie the expense, difficulty and inconvenience of following up with those that assist at an emergency.   First it is a truism that all first responders are local – that is meant to capture the idea that the emergency services are not the first responders, in nearly every emergency neighbours or bystanders will have come forward to assist.  At nearly every event where an ambulance attends someone will have got there first (the exception is the person collapsed or injured at home who manages to call their own ambulance) so the list of potential affected people is very large.  Some people will have stepped back so the paramedics may not recognise or identify everyone who was involved. Paramedics would have to attend everyone at the site to ask if they were involved

Even where people could be identified, the record keeping would be significant. There would have to be records of each person and they would need to be stored and someone given the responsibility for the follow up.  The cost of that record keeping and follow up would be significant.

That is not to say that ambulance services shouldn’t, or don’t, follow up with good Samaritans.  There are many instances of patients and bystanders being reunited and people being given awards in recognition of their efforts to save a life.  See

• Royal Life Saving Society Australia, Honours and awards;
• St John Ambulance (NSW) Save a life Awards; and
• St John Ambulance (WA) Community Hero Awards.

That there is follow up and even awards doesn’t show that there is a duty – that is an obligation – to provide that sort of follow up or recognition.

 

Today’s question relates to the use of the word ‘emergency’ on vehicles operated by services other than the traditional emergency services.  My correspondent has noticed:

… a number of Private/Business vehicles now being ‘marked up’ with livery that suggests they are an emergency service. Often utilities vehicles are marked with the words ‘Emergency Vehicle’, which is now starting to show up on tradespeoples vehicles.

Attached is a photo of an AAPT Telecoms vehicle fitted with Orange/White LED beacons, and an “Emergency Vehicle” decal applied on the front bonnet.

The notice visible in the windscreen shows logos of NBNCo, Pipe Networks (an AAPT subsidiary) and Telstra, and is a parking exemption notice issued under the Telecommunications Act 1997. The authority notice is linked specifically to that vehicle, under AAPT’s telecommunications licence.

The NSW Road Transport (Vehicle Registration) Regulation 2017, Schedule 2, Part 6, Section 20, allows all ‘Emergency Vehicles’ as well as a significant list of other allowable vehicles (including public utility service vehicles) to fit flashing beacons in any direction. As a result, the beacons are not a question here.

As a fairly regular reader of your work – and having searched back several years in your archive – I’m generally aware of the definitions of an Emergency Vehicle (and by connection, an Emergency Worker). Clearly a telecoms tech is not a Police Officer, nor a member of the other ‘services’, however there is finally the person or class thereof, ‘approved by the Authority’.

[Question 1] Does ‘the Authority’ (I assume NSW RMS in all cases?) make public their determinations of other persons that qualify as emergency workers, or vehicles that are considered emergency vehicles? What criteria might they use to make these determinations?

[Question 2] Detaching the question of telecomms authority from the question for a moment, what is the law regarding marking up a private or business vehicle in NSW to appear as an emergency vehicle, either by way of symbolism (chequers, ‘false’ crests/roundels, etc) or wording such as this?

[Question 3] And finally, does the Telecommunications Act of 1997 confer any Emergency Services worker abilities upon those covered by it? A quick Austlii search suggests not.

To summarise – can one slap an ’emergency vehicle’ decal on a vehicle with no further ramifications? Does that decal hold any power beyond a simple public advertisement as to the theoretical purpose of the vehicle and a bit of a ‘leave me alone’ hand-wave?

For a related discussion, see 4WD Rescue or Recovery (January 7, 2017).

Question 1

The answer to the first question is yes, the relevant authority for granting permission to fit beacons or to declare that a person is an ‘emergency worker’ is the Roads and Maritime Services and no, they don’t make those determinations public. I can’t say what criteria they would employ when asked to declare that someone is an emergency worker for the purposes of the road rules.

Question 2

The Road Transport (Vehicle Registration) Regulation 2017 (NSW) sets out standard for issues such as lighting but says nothing about sign painting or otherwise decorating cars or trucks.

The State Emergency and Rescue Management Act 1989 (NSW) s 63B says:

(2) A person who:

(a) uses or displays emergency services organisation insignia, or…

with the intention to deceive is guilty of an offence.

(3) A person is not guilty of an offence under this section if: …

(c) the person establishes that the person has a reasonable excuse.

“emergency services organisation insignia” means:

(a) any items (being uniforms, insignia, emblems, logos, devices, accoutrements and other things) that are generally recognised as pertaining to an emergency services organisation (other than the NSW Police Force) or as being used by an emergency services organisation officer, or

(b) any parts of any such items, or

(c) any reasonable imitation of any such items or parts, or

(d) any thing or class of thing prescribed by the regulations as being within this definition (whether or not it may already be within this definition),

but does not include any thing or class of thing prescribed by the regulations as being outside this definition.

Most emergency service vehicles, other than those operated by the State Emergency Service don’t have the word ‘emergency’ on them. I can’t see that a sign that says ‘Emergency Vehicle’ in green writing on a white background would be mistaken for a vehicle operated by one of the traditional emergency services.  In any event it’s hard to see it’s been used either with an intention to deceive or without reasonable excuse.

There are however examples of people who do attempt to impersonate emergency vehicles and workers and depending on the jurisdiction is an offence – see Impersonating an emergency service worker in Victoria (October 17, 2017).

Question 3

The Commonwealth can make laws with respect to ‘postal, telegraphic, telephonic, and other like services’ (Australian Constitution s 51(v)).  Where a valid law of the Commonwealth is inconsistent with a valid law of a state, the Commonwealth law prevails (Australian Constitution s 109).  The Telecommunications Act 1997 (Cth) is we can infer a valid law of the Commonwealth.  Schedule 3 of that Act grants telecommunications companies ‘… some powers to enter land and install and maintain some types of telecommunications facilities, and some immunities from some state and territory legislation’ (see also Department of Communication and the Arts Carrier powers and immunities, 2018 and the Telecommunications Code of Practice 2018).

Without going into the matter in detail Schedule 3 does allow operators to enter and occupy land to install and maintain facilities (Sch 3, cll 6 and 7). The power to enter land includes a power to enter a public place (Sch 3, cl 2).  Without seeing the details of the permit on display I would infer it’s related back to Schedule 3 and would inform parking inspectors and police of the powers vested in the operator by the Telecommunications Act.

The short answer to question 3 is therefore that I haven’t tracked down the detail (and for that I’d need to see the wording of the permit) but in essence yes, the Telecommunications Act does confer a power to do things that would otherwise be illegal, like park on land or a street to maintain the telecommunications network.

Road Rules 2014 (NSW) r 165

This rule says (emphasis added):

It is a defence to the prosecution of a driver for an offence against a provision of this Part [ie Part 12 – Restrictions On Stopping And Parking] if:…

(c) the driver stops at a particular place, or in a particular way, to deal with a[n] medical or other emergency … and the driver stops for no longer than is necessary in the circumstances…

What is an emergency is not defined but one can imagine for example that a plumber stopping water gushing onto the street, or an electrician rendering power to a home safe would be dealing with an emergency as may a telecommunications company have to urgently restore the communications network.

There is no clear and easy statement about when a rule like r 165 applies and that is intentional. These rules are intended to give discretion to law enforcers. The Parliament can’t think of every example, so they give this sort of general exemption and it’s up to police or parking inspectors to decide if it applies.  If they don’t issue a ticket they can say to the person also illegally parked who says ‘why don’t you book them too?’ that ‘they’re allowed to park there, you’re not’ and that’s consistent with the rule of law.  If they do issue the ticket, the driver has grounds to go before an independent referee (a court) and challenge that decision.

Summary

The telecommunications technician is not an emergency worker within the meaning of the Road Rules 2014 so they would have no exemption from the road rules when it comes to driving or ‘responding’ to an emergency.

They may have parking exemptions by virtue of the terms of Schedule 3 of the Telecommunications Act 1997 (Cth).  And everyone can stop their car contrary to the road rules in order to deal with an emergency.

For the plumber, electrician or telecommunications technician, the ‘Emergency Response’ or ‘Emergency Vehicle’ could well be described as ‘a simple public advertisement as to the theoretical purpose of the vehicle and a bit of a ‘leave me alone’ hand-wave.  It may well cause the police or parking inspectors to look and ask, ‘is there an emergency?’ and if there is, let it go. So yes, one can slap an ‘emergency vehicle’ decal on a vehicle and it has no particular meaning or implication and no doubt people do it to advertise their trade services, one sees it on vehicles operated by pathology services and probably people delivering food, alcohol and other urgent supplies.

Postscript: Road Rules 2014 (NSW) r 310

A further correspondent has drawn my attention to r 310 of the Road Rules 2014 (NSW).  That rule says:

(1) A provision mentioned in subrule (2) does not apply to a person at the site of, and engaged in, roadworks if, in the circumstances:

(a) it is not practicable for the person to comply with the provision, and
(b) sufficient warning of the roadworks has been given to other road users.

The provisions mentioned in subrule (2) include ‘Part 12 (Restrictions on stopping and parking)’. In simple terms, a person engaged in roadworks where paragraphs (1)(a) and (b) apply does not have to comply with the parking rules.

Roadworks includes ‘installation or maintenance work authorised under another law of this jurisdiction on, above or below a road’.

This (unlike r 165) is not an ‘emergency’ provision but gives further authority to tradespeople to park where they need to in order to complete their work.

 

 

 

Today’s question comes from Western Australia.  My correspondent says:

There was recently a discussion regarding the administration of sedation to patients being transported under the Mental Health Act in WA. In that discussion, a circular came to light which contained the following quote:

Due to changes in the current Mental Health Act 2014, Paramedics are no longer authorised to independently administer sedation to patients who are the subject of a transport order under the Act without specific authorisation from a doctor, preferably the patient’s discharging doctor.

The circular goes to require that paramedics receive “clear instructions from the discharging doctor allowing you to administer sedation where clinically necessary…” and to administer that sedation as per CPGs.

As far as I can tell, the Mental Health Act 2014 doesn’t make reference to “sedation” or “paramedic”, so I’m curious as to if this guidance is actually due to the Act, or rather just an internal policy.

In particular I think it’s curious to require that a paramedic receives authorisation from a doctor to do something that is “clinically necessary” – my reading of your previous posts has lead me to believe that paramedics should not need explicit authorisation from a doctor to do what is clinically necessary.

I have been provided with a copy of the circular dated 24 February 2017. I’m told that the Clinical Services Director, when asked what prompted the circular, replied:

Patients who are detained under the mental health act can only be sedated under “emergency psychiatric treatment” section of the act, and the only type of person who can authorise this is a doctor. The authorisation must be specific to a particular patient, not generic as our CPGs are.

Whether people other than doctors can independently apply “emergency psychiatric treatment” to a patient detained under the mental health act was specifically debated in parliament during the passing of the relevant legislation and the answer was “no”.

We have legal advice to this effect.

We believe that it is not sensible to sedate these patients under our behavioural CPGs, given the law.

We think that the treating doctor in the originating facility is the best person to authorise us in the event that it may be necessary during the transport phase between hospitals (& the doctor is not going to be present).

The Mental Health Act 2014 (WA) came into effect on 30 November 2015. It has been amended by the following Acts:

Name of Act With effect from Mental Health Legislation Amendment Act 2014 30 November 2015 Mental Health Amendment Act 2015 30 November 2015 Health Services Act 2016 1 July 2016 Local Government Legislation Amendment Act 2016 21 January 2017 Health Practitioner Regulation National Law (WA) Amendment Act 2018 Not yet in force.

It is unclear which ‘changes’ the circular is referring to but given that it is dated February 2017 one might infer that it’s the changes in the Local Government Legislation Amendment Act 2016 that came into force on 21 January 2017.  The Local Government Legislation Amendment Act 2016 inserted the words ‘a local government, regional local government or regional subsidiary’ into the definition of ‘state authority’ in s 572. That change is clearly not relevant to the issue of sedating patients.

The Health Services Act 2016 amended the Mental Health Act 2014 by deleting references to the Hospitals and Health Services Act 1927 and referring, instead, to the Health Services Act 2016 or, in s 348, the Private Hospitals and Health Services Act 1927.  These changes also did not relate to the sedation of patients.

The other changes were all made before the 2014 Act came into force so they were incorporated into the Act at the time of commencement. They couldn’t be described as ‘changes in the current Mental Health Act 2014’.  I therefore have no idea what the circular is referring to.  There have been no relevant changes since the Act commenced on 30 November 2015.

Does the Mental Health Act 2014 say what the circular and advice say it does? Transport orders

The Act refers to a ‘transport officer’ that is ‘a person, or a person in a class of person, authorised under section 147 to a carry out a transport order’ (s 4).  The regulations prescribe that the class of persons who are transport officers are those people employed by agencies that have entered contracts with WA Health to provide mental health transport services.  I do not know if St John (WA) is a contracted transport provider.

The Act also provides for transport orders. A medical practitioner can make a transport order, authorising a transport officer to transport a mentally ill person, when:

• The person needs referral for examination at authorised hospital or other place (s 29);
• Where a person has been examined at a place that is not an authorised hospital and needs transport to a general or authorised hospital (s 63);
• Where a mentally ill person has been receiving medical or surgical treated at a general hospital and can now safely be transferred to an authorised hospital (s 67);
• Where a mentally ill person needs to be transferred from one authorised hospital to another authorised hospital (s 92); and
• Where a mentally ill person is granted leave to attend a hospital for medical treatment or who has had their leave cancelled and needs transport back to hospital (s 112);
• Where a person has failed to comply with a community treatment order and failed to attend upon a psychiatrist when directed to do so (s 129);
• Where a community patient requires to be detained in hospital (s 133);
• Transfer to and from an interstate mental health service (s 556);
• Transport of a community treatment patient to an interstate mental health service (s 560).

Where a transport order is made (except under ss 556 and 560) the provisions on making a transport order apply. Those provisions say, relevantly, that a transport officer, or in some cases a police officer (s 149) is to transport a patient in accordance with the order. The transport order allows the transport officer or police officer to apprehend and detain the person until they are received into the hospital (s 149).

Section 156 provides that police may detain a person who is suspected of being mentally ill and who needs detention in order to ‘protect the health or safety of the person or the safety of another person; or prevent the person causing, or continuing to cause, serious damage to property’.

These provisions say nothing at all about the use of sedation.  In fact the terms ‘sedate’, ‘sedation’ or ‘sedative’ do not appear in the Act.

Emergency psychiatric treatment

The provisions dealing with “emergency psychiatric treatment” are found in ss 202-204.  Section 202 says:

Emergency psychiatric treatment is treatment that needs to be provided to a person —

• to save the person’s life; or
• to prevent the person from behaving in a way that is likely to result in serious physical injury to the person or another person.

Section 203 says ‘A medical practitioner may provide a person with emergency psychiatric treatment without informed consent being given to the provision of the treatment.’  Again it doesn’t mention sedation or give particular authorisation for the use of sedation.

The Criminal Code (WA)

The Criminal Code (WA) s 243 says:

It is lawful for any person to use such force as is reasonably necessary in order to prevent a person whom he believes, on reasonable grounds, to be mentally impaired from doing violence to any person or property.

Hansard

Dr K.D. Hames, the then Minister for Health said in the Second Reading Speech (Hansard, Legislative Assembly, 23 October 2013, p. 5396)

Treatment decisions must always be made in the best interests of the patient. Voluntary patients, including people who have been referred for an examination by a psychiatrist, can be given treatment only with informed consent. There is an exception for emergency psychiatric treatment such as medication, which can be administered only to save the person’s life or prevent the person from behaving in a way that is likely to result in serious physical injury to the person or another person.

There were other contributors to the debate but a search of the Hansard did not reveal other uses of the term ‘emergency psychiatric treatment’.  It might be inferred that this debate says that only medication can be given under the emergency psychiatric treatment provisions, but that is not what the Act says.

The Guardianship and Administration Act 1990 (WA) s 110ZH provides that a health professional can provide emergency care. A health professional is one of the 14 registered professions under the Health Practitioner National Law that, as of today, does not include paramedics. It also includes ‘any other person who practises a discipline or profession in the health area that involves the application of a body of learning’ (s 110ZH and Civil Liability Act 2002 (WA) s 5PA). This broad definition may extend to paramedics.  That is a point of difference – the Guardianship and Administration Act says any health professional can provide urgent medical care without consent, whereas the Mental Health Act refers only to a medical practitioner given urgent psychiatric treatment.  That would support an interpretation that only a medical practitioner can authorise sedation.

But even so treatment without consent has to be given by others, otherwise a person doing first aid would be guilty of an offence.

Discussion

I note that the circular says ‘Paramedics are no longer authorised to independently administer sedation to patients who are the subject of a transport order under the Act without specific authorisation from a doctor, preferably the patient’s discharging doctor.’  As noted transport orders can be made in many circumstances to authorise a transport officer to transport the patient.  Where a person is subject to a transport order then they have seen a medical practitioner. The circular also notes that ambulance officers should complete ‘the inter-hospital transfer form…’ again demonstrating that the circular is not addressing a situation where ambulance are treating a mentally ill person as part of ambulance emergency response.

It is not clear however whether the authority suggested exists. The circular suggests that doctor’s be asked to write ““The use of sedation as per SJA CPG 2.5 – Disturbed and Abnormal Behaviour – is approved for this patient in the event that other, less restrictive measures have failed.”  A medical practitioner can administer emergency care but that doesn’t mean he or she can authorise others to do it.  A doctor may prescribe medication and allow others to administer it but on this advice they are leaving it to the ambulance paramedics to make the clinical judgment that the sedation is clinically indicated.

In the case where ambulance are responding to a triple zero call and determine that a person is mentally ill and needing care, that person is not subject to a transport order nor an ‘inter-hospital transfer’ and the circular does not appear to apply.

The advice of the Clinical Services Director is also talking about inter-hospital transfer.  The advice says

We think that the treating doctor in the originating facility is the best person to authorise us in the event that it may be necessary during the transport phase between hospitals (& the doctor is not going to be present).

Again that is not referring to a person in the community who needs urgent care.

There could be some support for the view that paramedics can never, even when first responders, sedate a patient.  That would require a conclusion that the only justification for paramedics provide medical treatment without consent is because they are a health professional within the meaning of the Guardianship and Administration Act.  And, because the Mental Health Act provides that only a medical practitioner can provide urgent psychiatric treatment then that does not include ambulance officers.  That seems to me to be a very conservative view and would mean that paramedics also couldn’t treat and transport any person who was mentally ill but could not consent to that care, even if they were compliant and did not require sedation.

As noted previously there is the common law doctrine of necessity that says medical care can be provided.  In In Re F [1990] 2 AC 1 Lord Goff said:

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

It would be my view that where a person is mentally ill and unable to consent then, at common law, a paramedic could treat and transport them just as they can for a person is unconscious or otherwise unable to consent to physical treatment. If the use of sedation is the care a reasonable paramedic would take as it was in accordance with the clinical practice guidelines then it would be justified. To the extent that it was necessary the provision of the Criminal Code (s 243) could also be called into to support those actions on the basis that the use of chemical sedation is a use of force.

Of course that doesn’t address the issue that employees and volunteers with St John (WA) are required to comply with the reasonable directions of their employer and if that is what St John require then that should be complied with.  The difficulty will be when paramedics are registered if they feel constrained to provide less than optimal care to their patients.  Their desire to treat the patients would not justify breaking the law if the St John interpretation is correct; but it may well give impetus to challenge the circular and to clarify why that is the St John view and what is their view when responding to an emergency call or when the patient’s condition changes during transport.

 

A Paramedic student in WA is

…  concerned about job prospects in this competitive industry within Australia. I’d love to view your thoughts on Paramedic registration and what that will mean for services that rely heavily on volunteers in regional and remote areas (SJAWA, SAAS).  Will there be a push for these services to fill these positions with career paramedics? Or have ambulance volunteers been incorporated to allow said services to continue operations as usual?

Also, if you could please shed some light, I am also curious as to why WA and NT contract private companies to provide pre-hospital care as opposed to a government run organisations like the remainder of states in Australia.

I’ll answer these questions in reverse order.  First, I don’t know why WA and NT continue to rely on private providers rather than providing government operated services. One can imagine it has much to do with distance and no doubt costs and they think the public are getting as good or better service than they would with a government run service for the same, or less cost.  St John Ambulance, in particular, has led the development of ambulance services in Australia but over time the governments have stepped in to take over the provision of ambulance services.  Having said that, I am not aware of the history of ambulance services in WA or the current thinking of the WA and NT governments.  I wouldn’t be surprised if a number of regular correspondents to this blog won’t be able to shed some light on the question ‘why WA and NT contract private companies to provide pre-hospital care as opposed to a government run organisations’?

As for the first question, paramedic registration won’t make any difference. Registration under the Health Practitioner Regulation National Law does not define scope of practice, it merely restricts who can use the title. The regulation of paramedics doesn’t go any way to regulating ambulance services or imposing quality or service standards.  It doesn’t compel an ambulance service, such as St John Ambulance Australia (WA) to employ paramedics in its ambulance services.

What registration will mean is that only registered paramedics will be able to call themselves paramedics. An ambulance service can still use volunteers, but everyone will know if they are not called ‘paramedic’ they are not a registered paramedic with the minimum qualifications and professional oversight that registration brings.  Whether there will be a ‘push for these services to fill these positions with career paramedics’ will depend on the will of the electorate.  If people demand a paramedic service, that can only be provided with registered paramedics. It should however be noted that a paramedic doesn’t have to be a career paramedic, a person could be a volunteer registered paramedic.

The short answer is therefore that registration of paramedics will not require ambulance services to staff their service with paramedics.  They can use people with other qualifications and volunteers.  Whether that is acceptable to the community remains to be seen.

In DPP v Hubbard [2018] VCC 760 the Victorian County Court imposed a fine of $500 on a defendant who entered a plea of guilty to one charge of recklessly causing a bushfire.  The maximum possible penalty was imprisonment for 15 years.

On 9 February 2016, the defendant (who was 18 at the time) along with a 17 year old friend “bought two packets of sparklers and made a sparkler bomb”.  The took the ‘bomb’ to “the  wetlands in Wonthaggi”.  They lit it and it:

“… exploded to a degree that you clearly did not expect.  A piece of shrapnel caused a fire to commence and an area of three metres by roughly two metres of ground and a bracket of fern leaves was burnt.”

The defendant was able to extinguish the fire before the fire brigade arrived.

The judge noted that the crime can have very serious consequences  and even where there is not a significant fire “it is a real public nuisance, this sort of conduct”.  This was not, however, “the worst example of arson” that the judge had seen.

Given the offender’s age, his early plea of guilty, and the circumstances of the offence, the judge determined to deal with the matter by way of “a significant fine for you of $500 without conviction”.

In A v Fire and Rescue NSW [2018] NSWIRComm 1039 (31 May 2018) Commissioner Stanton in the Industrial Relations Commission set aside a decision of the Fire and Rescue NSW Commissioner to demote a station officer to the rank of senior firefighter for one year.  Instead the firefighter was fined $5200 and warned that any further misconduct could result in his dismissal.

The facts

In this determination the Commission used initials rather than names.

Station Officer A had worked for FRNSW for about 20 years, 10 of those as a station officer.  He was going through a difficult divorce with allegations and counter-allegations of inappropriate conduct.  A’s brother, B was (and presumably is) a serving officer with NSW Police.

On 1 January 2015 a victim of domestic violence sought refuge at the fire station where A worked, and police were called.  The evidence of Senior Constable H was that he asked Station Officer A ‘how Mr A’s brother was going as he had recently sustained an injury when working with the weapons unit’ [59].  A then raised a number of allegations against various members of the police including that the local area commander was falsely deleting data from the police computer records; that another officer was involved with his, A’s, wife; that these two officers were about to be charged with criminal offences; and another police officer had been involved in fabricating evidence.  It is not necessary to detail the allegations.

Senior Constable H recorded and reported these conversations and they were in due course reported to the Local Area Commander who was, himself, the subject of one of the accusations.  Various matters were reported to and investigated by the Police Integrity Commission.  A denied that the conversations ever took place, but the investigator appointed by Fire and Rescue NSW was satisfied that they did take place, as was Commissioner Stanton (at [114]).  Commissioner Stanton described the allegations made by A as ‘malicious’ ([119]).

There can be no doubt that the separation with his wife was painful and complex. Mr A ‘was arrested and held at a local police station for breach of an AVO. However, he was later released without charge’ [8].   Further A was subject to an interim apprehended violence order that was later withdrawn ([9]).  Even so, whatever may have been A’s belief, it can be inferred that there was no substance to the allegations of police impropriety toward him.

The allegations

The Commissioner purported to take disciplinary action against A for breach of the Fire and Rescue NSW Code of Conduct.   The investigator appointed by the Commissioner determined (at [43]) that ‘Mr A had breached clause 15(2) (b) of the Fraud and Corruption Prevention Policy on the grounds that he had wilfully or negligently made a false or misleading statement’ when raising the allegations with Senior Constable H. Further he ‘considered Mr A had also breached clause 17(1)(g) of the Fraud and Corruption Prevention Policy by behaving in a manner that a reasonable person would consider could bring discredit upon the FRNSW’.

At the conclusion of the disciplinary process the Commissioner of Fire and Rescue NSW wrote to A and said:

Pursuant to Clause 35 (2) of Fire Brigades Regulation 2014, I have decided to take this action. I have determined you will be demoted from the rank of Station Officer to the rank of Senior Firefighter from period of 12 months… At the conclusion of the 12 months you will be reinstated the rank of Station Officer subject to the maintenance of appropriate standards of behaviour during the period of demotion. You will be found position in Zone WW during and after the demotion.

As a Station Officer, the manner in which you conduct yourself by your words and actions are a reflection of your professionalism, integrity and the position of leadership you hold. It is of paramount importance that you set an example for other Firefighters, by ensuring you uphold professional and ethical standards and core values of FRNSW at all times, and that you demonstrate this in your dealings with other organisations and the public.

A appealed to the Industrial Relations Commission.

The appellant’s case

During the hearing, A called a number of firefighter witnesses who confirmed that whilst at work he had been professional in his dealings with police.  This is of course important in firefighting as police and FRNSW will nearly always attend fires and have to work together.  There was also evidence that A had sought to be stationed away from the Local Area Command ([7] and [82]) where the police he had complained about worked.  There had been no complaint about his work at this alternative station.

The Commission’s Decision

The appeal to the Commission is a hearing de novo ([108]) (‘de novo’, ie “starting from the beginning; anew”) that is the Commission is not there to simply review the Fire Brigade Commissioner’s decision and determine whether the decision was made according to law. Rather the Industrial Relations Commission hears the complaint ‘anew’ and can determine whether it is made out and exercise all the powers that the FRNSW Commissioner could have exercised.

Mr A argued that in the conduct of the disciplinary proceedings he had been denied procedural fairness. That complaint was rejected at  [113]:

I consider Mr A had a very clear understanding of the allegations put against him. They were short, sharp, specific and precise. That said, Mr A’s plea that he was denied procedural fairness must fail in circumstances where he understood the allegations and was afforded sufficient time to consider them properly before drafting his response.

Further the Commission agreed that in the circumstances where a FRNSW Station Officer raises malicious and unfounded allegations about police with other police officers that represented a breach of the FRNSW Code of Conduct provisions on ‘Respect for People’ and the Fraud and Corruption Prevention Policy: ‘the decision of the Commissioner to impose a disciplinary sanction on Mr A was not in error’ ([115]).

The penalty was, however, excessive. Commissioner Stanton said (at [115]-[119]):

… it is very apparent on the material before the Commission that Mr A has been deeply affected by the events surrounding his marriage break up and the fact that as a single parent, he is trying to look after his children when the opportunity arises to the best of his ability.

By way of further observation, it is also apparent that the litigation treadmill concerning this matter and others referred to in proceedings has cost him dearly. That is not to say that the Commission by any means sanctions the alleged conduct of Mr A. Quite the opposite.

Mr A has been working at a Fire Station other than his substantive Fire Station for a period of time. His evidence was that he is happy to be working there and away from the stress related to his previous Fire Station and LAC. There was no evidence pressed by FRNSW to the contrary.

In determining this appeal, I have paid particular regard to the expected financial impact of the demotion on Mr A and his family in the context of a protective rather than a punitive jurisdiction. I consider the demotion for a period of 12 months is too harsh when viewed against Mr A’s personal circumstances. I have also considered the responsibilities upon FRNSW officers and the policies raised in proceedings concerning mandatory employee compliance obligations.

Mr A needs to clearly understand that when on duty, he is on duty as a representative of FRNSW and when the police came to the Fire Station to interview him about the domestic violence incident, he had no right to raise malicious allegations that have the capacity to cause reputational damage to FRNSW. Any further disciplinary issues could result in dismissal. While Mr B believed in his own mind that the allegations were true, there was no evidence to support that proposition.

The Commission upheld the appeal and ordered (at [121]):

… that the [decision that the] appellant be demoted from Station Officer to Senior Firefighter with effect from 17 June 2016 is quashed and in lieu thereof, Mr A shall receive a reprimand and a fine of $5200…

Discussion

Determining how to deal with people who have committed an offence, whether it is an offence against the criminal law (see No gaol time for defendants who assaulted Victorian Paramedic (May 18, 2018)) or internal codes is difficult and complex.  An essential element is that the decision maker focus on the individual and his or her circumstances.  The time between the offending and the determination of punishment allows a person to show whether they are at risk of further offending. In this case the actions of A in getting work at a fire station outside the relevant Local Area Command along with support from other fire fighters to his professional approach at work and his professional approach to police no doubt helped.

The primary lesson, if there is one, for firefighters is to recognise that statements made when in uniform and at work reflect on them as firefighters and on FRNSW. The allegations made by A to Senior Constable H were not ‘off the record’ or informal conversations.  They were made to police and it was incumbent upon them to report them and deal with them. In this case they were without substance and it reflected adversely on FRNSW that they were made by a FRNSW station officer.   The Industrial Relations Commission agreed with the FRNSW Commissioner “that when on duty, he is on duty as a representative of FRNSW and when the police came to the Fire Station to interview him about the domestic violence incident, he had no right to raise malicious allegations that have the capacity to cause reputational damage to FRNSW”.

The other lesson is that decisions can be subject to review. It is important that all the factors relevant to both the offending and the offender are taking into account when determining the relevant punishment.

Today’s question relates to the protection of the title ‘paramedic’.  My correspondent asks:

With the Paramedic registration participation date approaching, do you know if the current NSW legislation on who may call themselves a Paramedic will be amended and, if not, whether the NSW legislation as it stands will prevent registered Paramedics from using that title in NSW if they do not meet the requirements of the NSW legislation?

The Health Practitioner Regulation Amendment Act 2017 (NSW) Schedule 3 provides for the repeal of Part 6A of the Health Services Act 1997 (NSW).  Part 6A has only one section, that is s 67ZDA ‘Holding Out As Paramedic’.  What follows is that yes, when paramedic registration comes into operation the NSW title protection legislation will be repealed.  I expect that this will also happen with the protection of title legislation in South Australia and Tasmania.

 

 

Today’s question relates to professional insurance and the Registration Standard on Professional indemnity insurance arrangements.  My correspondent asks:

(1) My understanding is that whilst engaged in employment, we are covered under vicarious liability and the employer’s insurance policy. How, if at all does registration change this?

(2) In WA we have the Civil Liability Act 2002 (WA) s 5AD which provides the relevant coverage.  It says:

(1) A good samaritan does not incur any personal civil liability in respect of an act or omission done or made by the good samaritan at the scene of an emergency in good faith and without recklessness in assisting a person in apparent need of emergency assistance.

(2) A medically qualified good samaritan does not incur any personal civil liability for advice given in good faith and without recklessness about the assistance to be given to a person in apparent need of emergency assistance.

(3) This section does not affect the vicarious liability of any person for the acts or omissions or advice of the good samaritan or medically qualified good samaritan.

How does this change, if at all, with the introduction of paramedic registration?

From what I can tell, there is no need to have PPI for activities carried outside of work, and I would be covered under my employers insurance under vicarious liability. Am I missing something?

Vicarious liability

Most paramedics will be practising as employees and many as employees of state ambulance services.  Those services will carry insurance, often under state or territory self-insurance schemes.  By virtue of the doctrine of vicarious liability, those employers will be liable for any negligent practice by employed paramedics.

The Registration standard: Professional indemnity insurance arrangements issued by the Paramedicine Board of Australia (17 May 2018) says ‘When you practise as a paramedic, you must be covered by your own or third-party PII [Professional Indemnity Insurance] arrangements…’  Where you are working solely as an employee, your employer will be vicariously liable for any negligent acts or omissions and there cover should be sufficient.  The Standard does say:

If you are covered by a third-party PII arrangement, it must meet this registration standard. If you are in any doubt about whether the third-party cover meets this registration standard, you should always ask what is covered by the third-party PII arrangement.

An employer’s liability is not simply determined by their insurance. Further state based ambulance services have the resources of the state behind them so there could not be any serious question that a paramedic who practices only as an employee is covered.

It is likely therefore that paramedic practitioners acting solely as employees, particularly employees of state ambulance service, will be sufficiently covered by the employer’s insurance arrangements.  It should be understood that an employer is not paying for insurance on behalf of the employee, rather the employer is insuring against their own risk that is that they are liable for any negligence by employees.  If there is inadequate insurance the employer is still liable, they just cannot pass the cost to an insurer so they have to meet the liability out of their own funds.   Where an employer is the state operated ambulance service, it will be the state that is liable so the question of capacity to meet any liability will not arise.

Registration won’t change that and despite some fears, registration won’t change the nature of vicarious liability. Nurses are registered health professionals but where they are employed it is their employer that wears any liability and that is also true for medical practitioners.  The difference is that medical practitioners often arrange their business affairs so that even when working in public hospitals, they are contractors rather than employees.

The ‘good Samaritan’ provisions are more complex.

Registration won’t change s 5AD or its equivalent in the other jurisdictions.  The paramedic is protected by that section but that doesn’t resolve the issue of whether or not the paramedic is practising the profession in that context.

What is unique for paramedics is that emergency out of hospital care is the essential or defining aspect of paramedic practice.  A doctor or nurse may feel they need to assist at an emergency but may not see that they are ‘practising’ their profession. Paramedics are experts in out of hospital emergency care. Where a paramedic comes across an accident or is aware that a person is having a sudden medical emergency, they will be aware that assisting that person is the essence of paramedic practice.

A paramedic may not have private insurance, eg because they hold a non-practicing registration or their practice is limited to their employment with a state ambulance service.  Even so, a paramedic may be concerned that they would be held to be practicing their profession, without insurance, if they offered to provide care, even basic first aid, at a sudden accident or emergency.  In a personal submission to the Paramedic Board I argued that the Board should expressly say that such conduct does not constitute practice without insurance.   In those circumstances a paramedic won’t be in a position to engage in high risk practices and the delivery of emergency care should be encouraged.  A similar argument was also made in the submission by Paramedics Australasia.

We argued that the Registration Standard on Professional Indemnity Insurance Arrangements should make reference to, or adopt the sort of language used in the good Samaritan’ provisions that exist in every Australian state and territory.  For example:

 A paramedic who, in good faith and without expectation of payment or other reward, comes to the assistance of a person who is apparently injured or at risk of being injured is not considered to be practising paramedicine for the purposes of this standard.

A rule to that effect will bring the professional standard in line with the civil law. An off duty paramedic who steps forward to assist in an emergency would be able to rely on state and territory ‘good Samaritan’ provisions so that he or she is not liable to pay damages for acts done in good faith. ((Civil Laws (Wrongs) Act 2002 (ACT); Civil Liability Act 2002 (NSW); Personal Injuries (Liabilities and Damages) Act (NT); Law Reform Act 1995 (Qld) and Civil Liability Act 2003 (Qld); Civil Liability Act 1936 (SA); Civil Liability Act 2002 (Tas); Wrongs Act 1958 (Vic); Civil Liability Act 2002 (WA) and Volunteers and Food and Other Donors (Protection from Liability) Act 2002 (WA)).  Where they are not liable for acts done, in good faith, they should also be reassured that they will not be subject to professional discipline for practising paramedicine without insurance.

Regrettably the Paramedicine Board did not address that in the final version of the registration standard.  It therefore remains to be seen what view the Board will take should it ever consider whether an uninsured paramedic who steps up as a good Samaritan is at that time ‘practising as a paramedic’.  Even without an express statement to that effect, it would be my view that they are not.

Paramedics may want to take out personal insurance, even if their practice is limited to work as an employee because professional indemnity insurance can provide cover that is more extensive than the employer’s cover.  Under the doctrine of vicarious liability an employer would be liable to meet any damages due to an injured patient but is not required to provide assistance if the paramedic is subject to professional discipline or if their employer tries to take disciplinary action.  Personal PI insurance will usually provide legal assistance to the insured in these circumstances.

Paramedicine Australia (of which I am a board member) has negotiated with Guild Insurance to provide professional indemnity insurance.  This policy provides insurance for many risks associated with running a practice as a paramedic which may not be relevant for a paramedic who is only practice is as an employee but it does provide cover for work done in a voluntary capacity (eg for a paramedic who is a volunteer first aider in his or her days off) and for ‘good Samaritan’ actions.   Further it provides insurance to cover the legal costs of appearing before an inquiry which includes:

• an official investigation, examination, inquiry or prosecution directly relating to an act, error, omission or conduct by You in Your provision of the Professional Services:
• brought by a registration board, statutory regulatory authority, tribunal or any disciplinary committee of an association or professional body of which You are a member;
• arising from a complaint made against You by a third party to any court, statutory health authority or agency, registration board or a professional association or body of which You are a member; or
• brought by way of coronial inquiry or royal commission:

These sort of costs are not met by an employer and that cover may be sufficient for many paramedics, even though who practice only as an employee, to take out cover.

Conclusion

It is likely that a paramedic who practices only for one employer and in particular if that employer is a state ambulance service will not need to obtain private insurance.

There is an issue that because paramedicine involves out of hospital care, that providing ‘good Samaritan’ assistance may be seen as practicing the profession and if a paramedic does not have insurance that may be a breach of the Health Practitioner National Law even though they are protected from civil liability by the various good Samaritan provision.  The Paramedicine Board failed to address that in the final Registration Standard.

To mitigate any risk of an allegation of practicing without insurance, and to provide insurance to help cover the costs of matters not covered by vicarious liability, in particular the cost of defending professional disciplinary proceedings, paramedics may like to consider obtaining private insurance.

(This discussion is based on and drawn from Eburn. M and Townsend R, ‘Professional Insurance for Paramedics’ (2018) 45 Response pp. 20-21).

A Bill has been introduced to the New Zealand parliament in order, we are told, to impose a 6 month gaol term for ‘people who assault emergency services staff’.  Further ‘Drug or alcohol-induced impairment will no longer be deemed an excuse to avoid imprisonment’ (see Paramedic attackers could be jailed under new law Newstalk ZB (Online) 26 May 2018)).  St John Ambulance (NZ) People and Capability Director Sue Steen is quoted as saying ‘… too few assault cases get to court. “This is based on the fact that our individual ambulance officers have to agree to pursue that prosecution, whereas this bill will put us in a much stronger position”.’

But what does the Bill say?  The Bill is the Protection for First Responders and Prison Officers Bill (NZ).

A new offence

If passed the Bill will introduce a new s 189A to the Crimes Act 1961 (NZ).  The new offence will say:

(1) Every one is liable to imprisonment for a term not exceeding 10 years who—

(a) intentionally injures a first responder or prison officer who is acting in the execution of their duty; or

(b) being reckless as to whether their conduct may lead to that result, injures a first responder or prison officer who is acting in the execution of their duty.

(2) In this section,—

first responder means—

(a) a constable (within the meaning of section 4 of the Policing Act 2008); or

(b) an emergency services worker (within the meaning of section 92(4) of the Health and Safety at Work Act 2015)

prison officer means an officer within the meaning of section 3(1) of the Corrections Act 2004; and includes a security officer within the meaning of that section.

The first things to note are that the 10 years is the maximum, not mandatory penalty.

Second, to be guilty of the offence a person must intend to injure the responder or officer.  Under the definitions in the Crimes Act 1961 (NZ) ‘injure’ means ‘means to cause actual bodily harm’.  Assault is the intentional application of force to another.   In Collins v Wilcock [1984] 1 WLR 1172 at 1177, Goff LJ said:

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

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

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

Because any touching is an assault it follows that not all assaults are accompanied by an intention to injure. Therefore the new section 189A(1)(a) will not apply to everyone who assaults a paramedic, constable, other first responder or prison officer, but only those that intend or want to cause injury.

The proposed s 189A(1)(b) makes reference to recklessness. That arises where an accused person realises the possible consequence of their action is the prohibited outcome, in this case injury to the paramedic etc.  The test is subjective so the Crown would need to prove that the accused realised that the possible consequence of their action was injury to the paramedic etc.  If the accused did not have that realisation, even if it was obvious to everyone else, they are not guilty of the offence (see R v Williams (1990) 50 A Crim R 213).

The section makes no reference to drugs and alcohol.  A person who is affected by drugs and alcohol may ‘assault’ a person but not intend to cause injury or realise that possibility.  If that is the case they will not be guilty of these offences as the Crown won’t be able to prove one of the essential elements of the offence.

In a comment to an earlier post, a correspondent said:

All paramedics understand that there are some circumstances where a person may not be in control of their actions, such as a person having an acute psychotic episode (for example hearing voices telling them to kill), or a diabetic having a hypoglycaemic episode, or a person who has just suffered a traumatic head injury.

Those people will still be ‘not guilty’ of any offence even if they do injure their responders.

Penalty

With respect to penalty the Bill proposes a new section 85A of the Sentencing Act 2002 (NZ).   The new section will say, emphasis added:

(1) This section applies if a court finds an offender guilty of an offence against section 189A of the Crimes Act 1961.

(2) The court must impose a minimum sentence of 6 months imprisonment unless, given the circumstances of the offence and the offender, a sentence of imprisonment would be manifestly unjust.

(3) If a court does not impose a sentence of imprisonment on an offender in accordance with subsection (2), it must give written reasons for not doing so.

Hardly a mandatory sentence at all.  If one considers the decision in DPP v Warren and Underwood [2018] VCC 689 (see No gaol time for defendants who assaulted Victorian Paramedic (May 18, 2018)) one can see that Her Honour may have felt that taking into account ‘the circumstances of the offence and the offender, a sentence of imprisonment would [have been] be manifestly unjust’ in which case the result in New Zealand, after the passage of this Bill, could be just the same as it was in Victoria before the passage of the Bill.

Amendment to the Summary Offences Act 1981 (NZ)

The final provision of the Bill will, if passed, amend s 10 of the Summary Offences Act 1981 (NZ).  That Section currently says:

Assault on Police, prison, or traffic officer

Every person is liable to imprisonment for a term not exceeding 6 months or a fine not exceeding $4,000 who assaults any constable, or any prison officer, or any traffic officer, acting in the execution of his duty.

If this Bill passes this section will read:

Assault on first responder, prison officer, or traffic officer

Every person is liable to imprisonment for a term not exceeding 6 months or a fine not exceeding $4,000 who assaults any first responder, or any prison officer, or any traffic officer, acting in the execution of his duty.

(2) In this section, first responder means—

(a) a constable (within the meaning of section 4 of the Policing Act 2008); or

(b) an emergency services worker (within the meaning of section 92(4) of the Health and Safety at Work Act 2015).

As noted above, not every assault carries an intent to injure so this picks up assaults (the intentional application of force) where there is no intent to injure and no foresight of the possibility of causing injury.  In this case the maximum (not mandatory) penalty is 6 months imprisonment.

People who are not ‘in control of their actions, such as a person having an acute psychotic episode … or a diabetic having a hypoglycaemic episode, or a person who has just suffered a traumatic head injury’ will also be ‘not guilty’ of this offence.

Conclusion What the article (Paramedic attackers could be jailed under new law) says the Bill will do: What the Protection for First Responders and Prison Officers Bill (NZ) will actually do: People who attack paramedics would automatically be jailed under tough new laws to be debated by Parliament. People who intend to cause injury or are reckless about causing injury will be gaoled unless the judge finds that gaol sentence would be ‘manifestly unjust’. A new bill proposes a mandatory minimum sentence of six months’ jail for assaults on all first responders, including paramedics and prison officers. Only for assaults that are intended to, or where the accused realises they might, lead to injury and only where a gaol sentence is not ‘manifestly unjust’.  Common assaults do not attract that penalty. From mid-June, people who assault emergency services staff in the state will be jailed for six months. See above. Drug or alcohol-induced impairment will no longer be deemed an excuse to avoid imprisonment. The Bill says nothing about drug or alcohol-induced impairment. Drug or alcohol-induced impairment may be relevant to the question of whether the accused had the requisite intention or foresight and may also be relevant in determining whether or not a gaol sentence is ‘manifestly unjust’. It would, necessarily, depend on all the circumstances. “…too few assault cases get to court.

“This is based on the fact that our individual ambulance officers have to agree to pursue that prosecution, whereas this bill will put us in a much stronger position,” Steen said. The Bill doesn’t make any difference to that position.  Individual officers will still need to make a complaint to police and cooperate with the prosecution.  If they don’t want to do that, for whatever reason, the Crown will still have difficulties.  The Crown can prove a case without the victim’s cooperation (if that were not the case, murder and child sexual assault could never be prosecuted) but the victim’s cooperation is often essential and a DPP will take into account the victim’s attitude when deciding whether or not there are reasonable prospects of success.  This Bill will make no difference to that position. “A 69-year-old man was this week sentenced to a year of intensive supervision plus reparations for indecently assaulting a Hamilton ambulance officer in March.” In the absence of an intent to injure or foresight of injury (recognising that injury is actual bodily harm) this Bill, if passed, would not have any application in this case.

 

 

On 3 April 2018 the Metropolitan Fire and Emergency Services Board (MFESB) made an application pursuant to s 185 of the Fair Work Act 2009 (FW Act) for the approval of the Metropolitan Fire and Emergency Services Board & United Firefighters Union Operational Staff Agreement 2016 (Agreement).  On 11 April 2018 Craig Laundy MP, Minister for Small and Family Business, the Workplace and Deregulation (Minister) made an application (under s 615A) to refer the question of whether the agreement should be approved to the Full Bench of the Commission on the basis that the agreement may contain unlawful terms.

In Metropolitan Fire and Emergency Services Board [2018] FWC 2441 Vice President Hatcher refused the Minister’s application.  He said (at [14]):

The Minister’s submissions do not with precision identify the grounds of his intended opposition to the approval of the Agreement, but appear to involve the contention that the restrictions on the availability of part-time employment in the Agreement would be indirectly discriminatory against women, people with family or carer’s responsibilities or persons with a disability, and thus would constitute a discriminatory term, and that provisions in which UFU approval of certain arrangements is required, the UFU only has the right to nominate a member of the Disputes Panel, and certain committees only provide for UFU membership (on the employee side) are terms that require or permit adverse action, and are thus (presumably) objectionable terms as well as perhaps discriminatory terms.

Without going into details of the agreement or the Minister’s objections, Vice President Hatcher found that resolution of whether there was unlawful discriminatory provision in the agreement would require evidence and evidence is better called before a single member rather than a full bench (see [22]).  Further, the Minister’s claim that the clauses that gave the UFU the right to nominate a member of the disputes panel is discriminatory had been dealt with in earlier cases.  Hatcher VP said (at [23]):

… to the extent that the Minister’s case concerns those provisions of the Agreement which mandate a particular role for the UFU, it raises issues which have been dealt with in Federal Court decisions before. In Klein [Klein v Metropolitan Fire and Emergency Services Board [2012] FCA 1402] the Court rejected a claim that provisions of an earlier MFESB enterprise agreement concerning the UFU’s right to nominate persons to comprise the Consultative Committee constituted objectionable terms, and in UFU v CFA [United Firefighters’ Union of Australia v Country Fire Authority [2015] FCAFC 1; see United Firefighters Union of Australia (‘UFU’) v Country Fire Authority (‘CFA’) [2014] FCA 17 (February 12, 2014) for a discussion of the first instance decision] the Full Court also rejected claims that provisions in another firefighters’ enterprise agreement which gave the UFU the right to determine the membership of two workplace committees authorised discrimination against non-union staff. No novelty therefore attaches to this aspect of the Minister’s foreshadowed case.

Finally if, after the matter was dealt with by a single member, the Minister had various rights to appeal the decision to the Full Bench of the Commission ‘Therefore any public interest concerns may be addressed by the use of this mechanism’.

In the circumstances VP Hatcher found that it was not in the public interest to refer to the matter to a Full Bench and the Minister’s application was refused.  The matter will now be determined by a single member of the Commission.

A Special Operations paramedic for a state ambulance service has recently been put through training in tactical medicine

… which has included authorisation for use of a needle thoracostomy device when clinically indicated. The employer has placed a caveat on the authorisation that it can only be utilised in a tactical setting and not in day to day Ambulance operations. I have access to the same needle thoracostomy device in my routine, non-tactical, practice setting. Where do I stand legally if I have a patient in the non-tactical setting for whom needle thoracostomy is indicated in accordance with my training and employer practice guidelines, and I withhold the intervention as requested by my employer?

With the imminent arrival of national registration, where would I stand in the eyes of a professional board for withholding treatment I have ready access to and trained for?

I’m told that tactical medicine is ‘prehospital care in high threat environments, basically providing immediate care to police tactical teams and victims of active armed offenders at the point of injury i.e. think Lindt Cafe, Bataclan Theatre in Europe type scenarios’.

A thoracostomy is a procedure for relieving Tension pneumothorax (see https://www.msdmanuals.com/en-au/professional/pulmonary-disorders/diagnostic-and-therapeutic-pulmonary-procedures/how-to-do-needle-thoracostomy).   The Victoria Ambulance Clinical Practice Guideline A0802, Chest Injuries says:

If some clinical signs of TPT are present and the patient is deteriorating with decreasing conscious state and/or poor perfusion, immediately decompress chest by inserting a long 14g cannula or intercostal catheter.

See also the Queensland Ambulance Clinical Practice Procedures: Respiratory / Emergency chest decompression – cannula (April 2018).

My correspondent tells me that in the service for which he/she works the procedure is reserved for Advanced Life Support (ALS) and Intensive Care Paramedics (ICP).  My correspondent is not yet qualified as an ALS or ICP but the tactical medicine training has given the skill, but subject to the limitations described above.   When asked, my correspondent said:

There has been no reason given for the restriction in procedure. In its absence the only conclusion I can draw is that without the restriction it will create significant pressure to train all paramedics in these skills…

The issue is that the equipment is readily available on standard ambulances but we’re being told we cannot use the procedure if we have a patient needing it in a non-tactical setting. The direction given is that we are to call for ALS/ICP backup for decompression, however, the emergent life threatening nature of tension pneumothorax means a patient may very well die in that window for ALS/ICP to arrive, especially in a rural/regional setting.

If we accept that this is a procedure required to deal with a life threatening emergency and that there has been no clinical reason given for the ‘caveat … that it can only be utilised in a tactical setting’ then that caveat has to be indefensible.

Let us assume the patient is in urgent need of a thoracostomy. A request has been made for ALS/ICP backup but they are delayed and the clinical assessment is that the patient is ‘deteriorating with decreasing conscious state and/or poor perfusion’.  Consider the scenario from the point of view of 1) the patient and 2) the ambulance service.

Now assume my correspondent applies the tactical medical training and successfully completes a chest decompression.  The patient will be happy.  What’s the ambulance service going to do?  Discipline the paramedic for saving the patient’s life? They may try, an employee is required to obey the ‘reasonable’ directions of an employer. But in the absence of reasons, in particular clinical reasons, this is decision is not ‘reasonable’.  An attempt to discipline the paramedic for saving the person’s life is unlikely to be supported by a tribunal such as the Fair Work Commission and would fail the 3AW/2GB/Daily Telegraph shock jock test.

Next assume that they don’t and the delay in ALS/ICP backup means the patient dies or suffers an outcome that is worse than would have been the case had the procedure been done.  The patient or their family discover that the paramedic was trained to recognise the need for the procedure, was trained in the procedure and had the equipment to perform the procedure but did not because of the ‘caveat’?  The ambulance service is happy, their employee did as directed.  Who’s the patient going to sue and or complain about?

The defendant will be the ambulance service.  That an ambulance service owes a duty of care to its patient is axiomatic (Kent v Griffiths [2001] QB 36).  The function of an ambulance service is to provide ambulance services (whatever that might mean).  If we take NSW as an example, ambulance services are ‘services relating to the work of rendering first aid to, and the transport of, sick and injured persons’ (Health Services Act 1997 (NSW) Dictionary).    The reasonable provision of those services may not require every paramedic be trained to ICP level, but paramedics, to provide reasonable care have to be able to provide the care that they have been trained to give where that is clinically indicated.  Failure to provide treatment that the paramedic is trained to provide in circumstances where it is clinically indicated and where the equipment is to hand has to be a failure to provide reasonable care.  As noted, in the absence of a clinical reason for the restriction, it could not be defended. It certainly could not be defended on the basis ‘if we let you do it, we’ll have to train everyone’ or ‘if we let you do it, we’ll have to pay you more for the extra skill’.  The reality is that my correspondent has that skill and has it because the service provided that training.

As for professional discipline, I can’t answer that.  Assume there is an allegation of ‘unsatisfactory professional performance’ that is ‘knowledge, skill or judgment possessed, or care exercised by, the practitioner in the practice of the health profession in which the practitioner is registered is below the standard reasonably expected of a health practitioner of an equivalent level of training or experience’ (Health Practitioner Regulation National Law Act 2009 (Qld), Schedule, cl 3).

The issue, that I can’t answer, is what practitioners of ‘equivalent level of training or experience’ would expect.  On the one hand they would (1) expect a paramedic to use the skills that they have been trained in, and the equipment they have been provided with, to provide the best possible care to their patient.  On the other they may (2) accept, or expect, a paramedic to practice as directed by his or her employer.  As a potential patient I would hope that they would expect (1) above.

To this end registration may be a useful tool to allow paramedics to negotiate with their employers and advocate on behalf of their patients.  Where an edict is given for unknown reasons or reasons such as those suggested by my correspondent (‘they don’t want to train everyone’) the independent professional demands of paramedics can give authority to the claim that the edict has to be removed, or ignored, because of the overriding and independent  professional obligations of registered paramedics.   This ability to advocate for better patient care is in my view one of the stronger arguments for registration and perhaps part of the initial resistance of NSW Health to the process.  As NSW Health said in its submission to the Senate Inquiry into The establishment of a national registration system for Australian paramedics to improve and ensure patient and community safety (p. 9) where it opposed national registration,

Registration can also involve loss of control of the scope of practice and associated workforce flexibility for employers. In NSW this could lead to loss of flexibility in terms of workforce planning, management and cost effectiveness.

If paramedics such as my correspondent can say that they have to be allowed to use the skills and training that they have whenever clinically indicated in order to meet the standards expected by their profession that will indeed limit the power of their employer to ‘control … the scope of practice…’   But that loss of control is for the benefit of patients.

Conclusion

In the absence of a clinical reason, an edict not to use skills that a paramedic has been trained in, where the equipment is to hand and where it is clinically indicated cannot be justified.

See also my ‘Frequently Asked Question’:

What should I do if I’m a registered health professional and the agency for which I volunteer doesn’t want me to use my skills and knowledge when working with them?

A: https://emergencylaw.wordpress.com/?s=volunteer+scope+of+practice

 

A correspondent has brought this story to my attention: Aisha Dow, ‘She was a nurse. So why did Helen shun conventional cancer treatment?’, The Age (Online) 21 May 2018.  The story relates to an experienced emergency department nurse who, when diagnosed with ovarian cancer, rejected medical care and instead sought care from Dennis Wayne Jensen,

… a self-described healer and hypnotherapist who told her not to undergo surgery.

Instead he allegedly prescribed an aggressive and painful treatment called black salve, which ate away at her flesh, leaving her swollen and in pain.

The reason this matters been sent to me for comment is because it is believed that the patient ‘an emergency department nurse … received a recommendation for Jensen from a paramedic she worked alongside’.

My correspondent says:

The paramedic likely acted with the best of intentions, however should have the medical knowledge (not to mention experience) to know that alternate medicine is not more effective than conventional medicine (otherwise it’s called medicine…)

Does the victim’s qualifications as an ED nurse remove any liability or unethical behaviour from the paramedic? Or did the victim’s vulnerability and desperation negate that?

Had this been been a regular member of the public, or a patient of the paramedic, could the paramedic face penalties – especially once we become registered?

The answer to that question, like so many, is ‘it depends’. I can’t comment on the practices of Mr Jensen as I don’t know what information he gave and whether the patient was competent to make decisions in all the circumstances.  Those matters will be addressed by Victoria’s Health Complaints Commissioner.  So putting issues of her mental state and her relationship with Mr Jensen aside, we can comment on the law.

First we all have a right to accept or refuse whatever medical care we like. So it was her right to reject medical care and instead look to Mr Jensen if that is what she wanted to do, regardless of how that decision may look to the rest of us.

The issue then is the conduct of the paramedic and that too ‘depends’.  A paramedic may have his own view and may offer that advice to a friend who seeks advice.  So the first question here would be what where the circumstances in which the recommendation was given.  If it was a conversation between peers and friends then it’s not a professional relationship and presumably the paramedic can make whatever recommendation he or she believes in.  And the fact that the person receiving the advice is an experienced nurse would be relevant as they, one might expect (again not commenting on her state of mind or competence at the time) should be able to make an informed decision on the value of the recommendation.  Equally making the recommendation does not compel the person to take the advice or accept the treatment. That is between in this case the patient and Mr Jensen.

Where the person being given the advice is a patient of the paramedic (or is a friend that is clearly vulnerable and perhaps not able to make an informed decision) then I would suggest the situation is clearly different.   As an employee a paramedic is required to comply with the reasonable directions of their employer, so they have to practice paramedicine as directed – they can’t introduce their own alternative practices in the back of the ambulance.

As soon to be registered health professionals they will also have to practice in accordance with accepted peer standards.  A person who rings for an ambulance no doubt expects paramedics to deliver evidence based care and transport them to a medical facility if that is called for.  The paramedic who thinks they’d be better off with the crystal healers and delivers the patient to an ‘alternative’ care such as Mr Jensen would, I suggest, find their career in paramedicine short lived.  But that’s not what is reported here.

Paramedics do not transport everyone to hospital. It’s appropriate, in some cases, for a paramedic to advise a patient ‘you don’t really need us or to go to hospital, you should go to your doctor tomorrow’ (Paramedics and recording honest advice (April 15, 2018)).  It’s not hard to imagine that a paramedic with the same world view of the paramedic that gave the advice to see Mr Jensen, might say ‘you don’t need us or to go to hospital, you should go to a quackery tomorrow’.   As with my suggestion of transporting the patient, even giving that advice is likely to be judged as conduct ‘that is of a lesser standard than that which might reasonably be expected of the health practitioner by the public or the practitioner’s professional peers’ ie unprofessional conduct or even professional misconduct.

If that is the case then yes, the paramedic who gave that sort of advice may well find themselves subject to professional discipline with the risk of being ‘struck off’ as a paramedic. Whether that’s likely in this case would, I suggest, depend on the pre-existing relationship between the paramedic and the nurse and the nurse’s capacity at the time.

 

On 15 May 2018, the Ministerial Council to the Paramedicine Board of Australia approved the Board’s registration standards relating to:

1. Continuing professional development;
2. Criminal history;
3. English language skills;
4. Professional indemnity insurance;
5. Recency of practice registration; and
6. Registration for current paramedics who may not be degree qualified, that is registration under the ‘Grandparenting’ provisions.

Now that these standards have been released, paramedics, trainee paramedics and would-be paramedics can see exactly what they need to do to become registered health professionals once the scheme comes into force later this year.

You can download the standards from the website of the Paramedicine Board of Australia – http://www.paramedicineboard.gov.au/Professional-standards/Registration-standards.aspx