Today’s question comes via the National Institute of First Aid Trainers ‘Ask an Expert’ page – see https://www.nifat.com.au/ask-expert/.

The question is:

If someone acting as a first aider is sued or litigated against (and as long as they act within their training and their certificate is current) who pays any costs of court for instance?

Do HLTAID003 Certificate holders have any indemnity cover under their certificate/RTO, etc?

The answer is no, there is no insurance that comes with a first aid certificate.  If someone ‘acting as a first aider is sued or litigated against’ then they have to meet the costs unless they have insurance.  They may have insurance if they are acting in the course of their employment or are a member of an organisation that provides that sort of cover for its members, but insurance is not automatic. Nor is insurance required – see Insurance for first aiders (August 13, 2014).

Today’s question comes from a member of ACT ambulance, but my correspondent is not a paramedic.  My correspondent says:

I have been advised at work that our teal green uniforms we wear will have to be changed as it is “illegal” under national registration of paramedics for Communications Officers and ACTAS Patient Transport Officers not qualified as paramedics to wear the uniform as they could be “purported to be paramedics”.

Could you please inject some legal and common sense logic into this verbal opinion please?

I note your previous blogs on registration and lifted this very paragraph from one of your replies;

The Health Practitioner Regulation National Law (as adopted in Victoria) says at s 113:

(1) A person must not knowingly or recklessly—

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

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

Knowingly or recklessly? If I have a uniform that is the same except for the epaulettes saying for example “Ambulance Support Officer” and printed name on back of uniform says “ambulance”, I am not “knowingly or recklessly” putting myself forward as a paramedic. And if the public are mistaken or confused about who is what in the ambulance profession, isn’t that their issue?

S113b states “take or use a prescribed title”. We are not taking or using the title of paramedic.

My uniform does not state I am a paramedic, I submit that this conclusion that uniforms have to be changed is false.

One does wonder how these stories start, and my correspondent is correct.  There is no restriction on various uniforms or colours.    As my correspondent has noted, the Health Practitioner Regulation National Law protects titles – see Health Practitioner Regulation National Law (ACT) s 113. A green uniform is not a ‘title’.

Further a person who wears a uniform issued by his or her employer where that uniform does not have the title ‘paramedic’ is not ‘knowingly or recklessly’ using the title.  If the employer puts some words on the uniform  with the intention of misleading people, then it is the employer who is doing the wrong thing.

The point of a uniform is to show that people are part of an organisation and to distinguish ranks and qualifications.  If an ambulance service uniform says ‘paramedic’ on the epaulettes and on  the back of the uniform issued to paramedics and has other markings on the uniform of other employees to show that they are communications officers, the chaplain, NEPT officers etc there is no use of the protected title.

It may be that, in due course, an ambulance service may choose to vary the uniform of paramedics from others if there is some evidence of confusion. But until then there is nothing in the Health Practitioner Regulation National Law that would compel an ambulance service like ACTAS to change the uniform of its non-paramedic employees provided that their uniform does not say ‘paramedic’ on it.

A nurse from WA has a:

… question relating to the public taking photographs of medical staff in a patient’s hospital room.  I know in most circumstances a person can take photos of anyone regardless of consent except in certain situations ie customs processing hall where photography is prohibited by law. As a nurse can I ask someone not to photograph me whilst I’m treating a patient, and even if the patient consents to the photo but I don’t.

That’s an interesting question and the answer is not obvious.  Landowners can make it a condition of entry that cameras are restricted and that is indeed what happens at theatres and concert venues.  The back of your ticket will have terms and conditions and will probably tell you that photography and filming is prohibited.  Further they mean it and at least in some venues security will take action if you are caught using your camera.

I can’t imagine however that this is a term upon which people are given permission to enter hospitals.  There is no ‘ticket’ system and public hospitals are pretty much open to anyone.

As a nurse you can of course ask someone not to take your photo but what could you do if they do take their photo.  You wouldn’t have the right to seize their camera see (Lifesavers as law enforcers? (July 6, 2014)) and it’s not like the old days where if you did get the camera you could remove the film.

If someone takes a photo and posts it on social media you may have some rights to ask that it be taken down and may have a cause of action if you can prove some damage.

If a person takes the photo and keeps it in the family photo album – here’s our family member in hospital and their lovely nurse – I can’t see that you could do anything about that.

If the photo was used because it demonstrated some professionally inappropriate behaviour, then no-one is going to be concerned that the photo was taken without your permission.  The issue then will be what does the photo show and what should be done about that?

There’s no actionable breach of privacy because a person is not an entity bound by the privacy laws. They are not collecting personal data for a particular purpose and are therefore obliged to keep that data and use it for that purpose.  They are just a person with a camera, and there is no ‘right’ to privacy.

Conclusion

The question was ‘As a nurse can I ask someone not to photograph me whilst I’m treating a patient….?’  The literal answer to that question is ‘of course you can ask’.  The more difficult question is ‘and what can I do if they refuse to honour my request?’

If their presence and photographing is interfering with patient care I would suggest contacting a more senior nurse eg the nurse unit manager or security.   But if they take the photo and put the camera away I can’t see any obvious legal remedy unless and until they chose to publish it.

If any other lawyers who read this blog and know more about privacy or media law and have a different view, I’d love to hear it.

 

Bill Madden’s WordPress is reporting that:

The COAG Health Council has released a consultation paper regarding the National Law, with submissions requested by 31 October 2018. Also available is a summary of the proposals and issues included in the paper.

The issues include:

• Reporting of professional negligence settlements and judgements;
• Reporting of charges and convictions for scheduled medicines offences;
• Whether whether the National Law should be amended to clarify the powers of a National Board following preliminary assessment, including a specific power to enable the National Board to refer a matter to be dealt with by another entity including a Court in the case of an expert witness;
• Whether the National Law should be amended to restrict the use of the titles ‘cosmetic surgeon’ and ‘surgeon’;
• Whether the National Law should be amended to provide AHPRA with the power to record on the public registers additional names or aliases under which a practitioner offers regulated health services to the public;
• Whether the National Law should be amended to enable a National Board / AHPRA to disclose information to an unregistered person’s employer if, on investigation, a risk to public safety is identified; and
• Whether  the National Law should be amended to empower a National Board / AHPRA to issue a public statement or warning with respect to risks to the public.

Given that paramedics are about to join the 14 other professions regulated under this law, paramedics may have an interest in making submissions on these issues.

Today’s correspondent asks:

1. Do people who want to volunteer for an emergency service have protection under anti-discrimination laws if they are refused membership and believe that they were discriminated against under the usual grounds (race, sex, religion etc)?
2. The emergency services have paid employees and volunteer members; do the various anti-discrimination laws apply equally to both groups? For example in relation to promotion (volunteers get promoted to various ranks) and access to courses.

I’ll refer to the relevant Commonwealth laws.  The Commonwealth doesn’t have a comprehensive anti-discrimination Act, rather it has specific ones:

• Racial Discrimination Act 1975 (Cth);
• Sex Discrimination Act 1984 (Cth);
• Disability Discrimination Act 1992 (Cth); and
• Age Discrimination Act 2006 (Cth).

The Sex Discrimination Act 1984 (Cth) deals with sex discrimination as well discrimination on the ground of sexual orientation, gender identity, intersex status, marital or relationship status, pregnancy or potential pregnancy, breastfeeding and family responsibilities.  The Act prohibits discrimination in the areas of employment and superannuation as well as in the provision of education, goods, services and facilities, accommodation, land transactions and clubs.

With respect to the provision of ‘goods, services and facilities’ s 22 says:

It is unlawful for a person who, whether for payment or not, provides goods or services, or makes facilities available, to discriminate against another person on the ground of the other person’s sex, sexual orientation, gender identity, intersex status, marital or relationship status, pregnancy or potential pregnancy, or breastfeeding:

(a)       by refusing to provide the other person with those goods or services or to make those facilities available to the other person;

(b)       in the terms or conditions on which the first-mentioned person provides the other person with those goods or services or makes those facilities available to the other person; or

(c)        in the manner in which the first-mentioned person provides the other person with those goods or services or makes those facilities available to the other person.

This would apply to an emergency service when it comes to responding to a request for assistance.  To refuse to respond or to respond on different terms because of the callers’ gender etc would be unlawful.

This could, arguably apply to an emergency service in terms of the ‘goods, services and facilities’ it provides to members but that’s not the same as the issue of whether its unlawful to discriminate when considering a person’s application for membership.

A club (s 4) is ‘an association (whether incorporated or unincorporated) of not less than 30 persons associated together for social, literary, cultural, political, sporting, athletic or other lawful purposes that: (a) provides and maintains its facilities, in whole or in part, from the funds of the association; and (b) sells or supplies liquor for consumption on its premises’.  Clearly an agency like the SES is not a club nor is it an employer of its volunteers.

There is an exception for voluntary bodies.  Section 39 says:

Nothing in Division 1 or 2 renders it unlawful for a voluntary body to discriminate against a person, on the ground of the person’s sex, sexual orientation, gender identity, intersex status, marital or relationship status, pregnancy, breastfeeding or family responsibilities, in connection with:

(a)  the admission of persons as members of the body; or

(b)  the provision of benefits, facilities or services to members of the body.

A voluntary body does not include ‘a body established by a law of the Commonwealth, of a State or of a Territory’.  The various Emergency Services (except St John Ambulance in WA and the NT) are all established by laws of the relevant states or territories so that exemption does not apply to them.

There are similar provisions in the Disability and Age Discrimination Acts.

The Racial Discrimination Act is broader. It says (s 9):

It is unlawful for a person to do any act involving a distinction, exclusion, restriction or preference based on race, colour, descent or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life.

Without defining every term in that section, prima facie that would make it unlawful to discriminate against a member of an agency such as the SES on the basis of race.

The problem for the Commonwealth is that it has limited capacity to make laws.  Laws of the Commonwealth have to be a law about a subject matter set out in the Constitution.  Discrimination isn’t one of those areas, so the Commonwealth law is only able to regulate areas that fall within the Commonwealth’s legislative authority.  To fill the gaps there is relevant state laws.

I don’t know what jurisdiction my correspondent is in, so I’ll look at NSW State Law.  The Anti-Discrimination Act 1977 (NSW) is very similar to the Commonwealth laws. Again there are exemptions for volunteer bodies but that would not include one of the states emergency services (s 57).

The agencies are therefore bound by the Anti-discrimination legislation and must not discriminate in the way it provides its services but there are no specific rules that would seem to apply to the question of whether to accept a person’s application for membership or the terms on which that application is accepted.

Conclusion

What follows, much to my surprise is that it appears that the anti-discrimination laws don’t apply in the circumstances described.  This is confirmed by:

Justice Connect in Victoria – ‘Discrimination in recruiting employees and volunteers:

The anti-discrimination laws in the Equal Opportunity Act do not specifically apply to volunteers. However, anti-discrimination laws may still apply where the volunteering situation gives rise to other areas covered by the Equal Opportunity Act. For example, discrimination laws may apply to protect volunteers with respect to club membership, sporting activities and where goods or services are being provided.

The NSW Anti-Discrimination Board – ‘Volunteers and voluntary organisations’:

Because volunteers are not generally regarded as employees, they may not be covered by most parts of the NSW Anti-Discrimination Act (ADA).

However, the ADA’s sexual harassment provisions do cover volunteers, so it is against the law for a volunteer to be sexually harassed during their voluntary work.

What follows is that people who want to volunteer for one of the emergency services do not appear to have protection under anti-discrimination laws if they are refused membership and believe that they were discriminated against because of age, sex, or disability. There may be protection if they are discriminated against on the basis of race.

Where a person is a member then the anti-discrimination legislation provides greater protection for employees than volunteers.  The agency cannot discriminate against volunteers where the agency is providing goods, services and access to facilities.

 

 

Today’s correspondent, a NSW paramedic, seeks:

… advice about how to ascertain C+C [Competency and Capacity] when a patient won’t engage with the Paramedics, and what the Paramedic’s obligations are.

In the case where Paramedics are responded by a third party to a patient due to concerns over the patient’s mental health or welfare status, and the patient refuses to interact with Paramedics, instead repeatedly saying they are fine and don’t require Paramedics and didn’t ask for their help, how can we ascertain if they have the C+C to refuse assessment/treatment/transport?

If the patient has a history of mental health issues, but is not behaving in a way that would display any current mental health issue and is refusing to answer questions or interact, where does the Paramedic stand if they can’t ascertain C+C, but leave the patient who was refusing assessment and there is an adverse outcome for the patient?

Do patients have the right to refuse assessment, treatment and transport if they refuse to answer questions regarding competency and capacity?

I’ll answer the last question first.  Yes ‘patients have the right to refuse assessment, treatment and transport if they refuse to answer questions regarding competency and capacity’.  There is no obligation to cooperate with paramedics (or police) or answer their questions.

The law

Where a patient is not competent to consent, or refuse consent, treatment that is reasonably necessary and in their best interest may be administered (see The doctrine of necessity – Explained (January 31, 2017)).  Further, an ambulance officer (Mental Health Act 2007 (NSW) s 20):

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

For a discussion on the interplay between consent and mental illness see Mentally ill, mentally disordered, mentally disturbed or just injured and in need of medical care in NSW? (August 27, 2017).

One thing a paramedic may need to do is to assess if the person is competent and/or mentally ill.  A person is competent to consent, or refuse consent, to medical treatment if he or she is able to understand the nature of the suggested treatment, weigh up the consequences of and communicate his or her decision (In Re C (Adult: Refusal of Treatment) [1994] 1 WLR 290; Gillick v West Norfolk and Wisbech Area Health Authority [1986] 1 AC 112, 169. For a further interesting discussion with a New Zealand focus on capacity see Philip Arnold, ‘The Practitioner Knows Best? Assessment of Patient Capacity and Responses to Refusal of Treatment in Emergency Healthcare’ (2013) 3 New Zealand Law Students Journal 23. I don’t agree with all the author says about treatment after suicide and I note that on that subject the article does not discuss Stuart v Kirkland-Veenstra [2009] HCA 15 and the High Court’s analysis about why attempted suicide is not evidence of reduced capacity or mental illness.  With that reservation, it’s a useful and interesting paper).

A person is mentally ill (Mental Health Act 2007 (NSW) s 14(1)) if they are:

… suffering from mental illness and, owing to that illness, there are reasonable grounds for believing that care, treatment or control of the person is necessary:

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

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

Mental illness means (s 4):

… a condition that seriously impairs, either temporarily or permanently, the mental functioning of a person and is characterised by the presence in the person of any one or more of the following symptoms:

(a) delusions,

(b) hallucinations,

(c) serious disorder of thought form,

(d) a severe disturbance of mood,

(e) sustained or repeated irrational behaviour indicating the presence of any one or more of the symptoms referred to in paragraphs (a)-(d).

A critical case, as it is with respect to so many posts in this blog, is Stuart v Kirkland-Veenstra [2009] HCA 15. In that case two members of Victoria police observed Mr Veenstra apparently preparing to commit suicide.  He spoke to police who formed the view that he was not displaying any of the symptoms of mental illness as listed in the Mental Health Act 1986 (Vic).  Deciding that there was no evidence of mental illness the police officers determined that they did not have the power to detain Mr Veenstra under s 10 of the Victorian Act.  Mr Veenstra went home and took his own life.  His widow sued alleging the police had been negligent for failing to take more active steps to detain Mr Veenstra.

If the police were to have a legal duty to do something, they also had to have a legal power.  French CJ said (at [5]):

In my opinion … there was no legal duty of care … The existence of a power to apprehend Mr Veenstra under s 10 of the 1986 Act was critical… However, it was a power which was never enlivened. The officers said, and the trial judge held, that they did not think Mr Veenstra was mentally ill… The officers, after talking with him, did not believe that he was going to take his own life. In the circumstances they could not have apprehended him unless they believed him to be mentally ill and likely to attempt suicide. The case for a duty of care depended upon the existence of the power to apprehend. That power did not exist in this case.

We can return to the facts given here.  The paramedics duty of care can’t extend to doing that which they have no authority to do.  If the patient refuses to cooperate with paramedics, refuses to answers questions, or responds by ‘repeatedly saying they are fine and don’t require Paramedics’ and ‘is not behaving in a way that would display any current mental health issue’ there is little that the paramedics can do.

In Collins v Wilcock [1984] 3 All ER 374 the English and Wales Court of Appeal had to consider the power of a police officer to detain a person to ask her a question.  The headnote (a summary of the case) says:

Two police officers on duty in a police car observed two women in the street who appeared to be soliciting for the purpose of prostitution. One of the women was known to the police as a prostitute but the other, the appellant, was not a known prostitute. When the police officers requested the appellant to get into the car for questioning she refused to do so and instead walked away from the car. One of the officers, a policewoman, got out of the car and followed the appellant in order to question her regarding her identity and conduct and to caution her, if she was suspected of being a prostitute… The appellant refused to speak to the policewoman and walked away, whereupon the policewoman took hold of the appellant’s arm to detain her. The appellant then swore at the policewoman and scratched the officer’s arm with her fingernails. The appellant was convicted of assaulting a police officer in the execution of her duty… She appealed against the conviction, contending that when the assault occurred the officer was not exercising her power of arrest and was acting beyond the scope of her duty in detaining the appellant by taking hold of her arm. The police contended that the officer was acting in the execution of her duty when the assault occurred because the officer had good cause to detain the appellant for the purpose of questioning her to see whether a caution for suspicious behaviour should be administered.

Held – (1) Except when lawfully exercising his power of arrest or some other statutory power a police officer had no greater rights than an ordinary citizen to restrain another. Accordingly, whether a police officer’s conduct was lawful when detaining a person to question him in circumstances where the officer was not exercising his power of arrest or other statutory power depended on whether the physical contact the officer used to detain the person was no more than generally acceptable physical contact between two citizens for the purpose of one of them engaging the attention of the other and as such was lawful physical contact as between two ordinary citizens. If the conduct used by the officer went beyond such generally acceptable conduct, eg if the officer gripped a person’s arm or shoulder rather than merely laying a hand on his sleeve or tapping his shoulder, the officer’s conduct would constitute the infliction of unlawful force and thus constitute a battery…

(3) Since the policewoman had not been exercising her power of arrest when she detained the appellant, and since in taking hold of the appellant’s arm to detain her the policewoman’s conduct went beyond acceptable lawful physical contact between two citizens, it followed that the officer’s act constituted a battery on the appellant and that she had not been acting in the execution of her duty when the assault occurred. Accordingly the appeal would be allowed and the conviction quashed…

In the course of his judgment Lord Goff said (at p. 378):

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. So Holt CJ held in 1704 that ‘the least touching of another in anger is a battery’: see Cole v Turner 6 Mod Rep 149, 90 ER 958. The breadth of the principle reflects the fundamental nature of the interest so protected; as Blackstone wrote in his Commentaries, ‘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’ (see 3 Bl Com 120). The effect is that everybody is protected not only against physical injury but against any form of physical molestation.

In Neal v Ambulance Service of NSW [2008] NSWCA 346 Mr Neal refused assistance from paramedics who remained concerned that he may have suffered serious head injuries.  In the face of his refusal they advised police that they could not treat or transport him to hospital.  Mr Neal did indeed have serious injuries and sued the Ambulance Service.  His case did not dispute that the paramedics did not have authority to detain or treat him but, he argued, the paramedics should have advised the police of their concerns as police could detain him under the Intoxicated Persons Act 1979 (NSW) (now repealed).   The District Court Judge found that notwithstanding the patient’s refusal the paramedics still had to do what they reasonably could, given the limitations imposed upon them. What the Court found that they should have done, but did not do, was tell the police that they had not been able to examine the patient, what the possible consequences of that were and ‘tell the police that the plaintiff may have a head injury and should be medically assessed’ (Neal v Ambulance Service of NSW [2007] NSWDC 123, [39]-[40].

It is axiomatic that a relationship that is as close as that between the Ambulance Service, acting through its employees the ambulance officers, and the patient, must give rise to a duty of care. On appeal the Court of Appeal said the correct question was not whether the paramedics owed Mr Neal a duty of care but whether the duty, in the circumstances, extended to giving advice to the attending police that they should take Mr Neal to hospital (Neal v Ambulance Service of NSW [2008] NSWCA 346, [23]-[24]).

The Court of Appeal did not decide that issue finding that even if the paramedics had given that advice to police, and even if police had taken Mr Neal to hospital, he would have refused treatment there too and so the consequences would have been the same (see Ambulance Service v Neal (January 29, 2009)).

Discussion

The implications of all of that is:

1. Paramedics do owe a duty of care to those that they are called to assist.
2. The duty is a duty to provide reasonable care in all the circumstances. It cannot be a duty to do that which the paramedic has no lawful authority to do.
3. A person can refuse treatment even if that will lead to their death. Their refusal does not have to be objectively reasonable or based on reasons at all.
4. Paramedics (in NSW) do not have a power to detain a person who refuses to cooperate except under the Mental Health Act 2007 (NSW) s 20. Where a person refuses to cooperate with paramedics they have no authority to detain them or compel them to answer their questions.  If they do answer by insisting that they do not require assistance the best a paramedic can do is form a view, based on the person’s ability to answer the questions whether they are displaying signs of a mental illness.
5. Where a person refuses to cooperate paramedics may owe a duty to do something but what will depend on all the circumstances.

In the situation described a paramedics duty may be to try and persuade the patient to cooperate. If they hold a genuine fear that the patient does in fact require assistance the duty may be to consider calling for assistance from family, the police or mental health teams.  If the patient is ‘not behaving in a way that would display any current mental health issue’ there is nothing anyone can do if the person refuses to cooperate.  Any attempt to compel the person to cooperate, particularly if it involves physical force (ie touching the person) would be a battery.

“[W]here does the Paramedic stand if they can’t ascertain C+C, but leave the patient who was refusing assessment and there is an adverse outcome for the patient?”  The best answer to that is the answer from Stuart v Kirkland-Veenstra [2009] HCA 15.  In that case Mr Veenstra went home and took his own life.  Whilst it’s true the police had to go to the High Court for an answer the answer will assist others – and the others was there was no duty to protect a person from harm that the police (or paramedics) did not cause.   The police were not liable in Stuart v Kirkland-Veenstra, the ambulance service was not liable in Neal v Ambulance Service of NSW.

Conclusion

Where a paramedic is faced with a refusal to cooperate all they can do is their best. They can’t compel the patient to cooperate.  If they have no reason to suspect, from the person’s response, that they are not competent or that they are mentally ill, there is nothing they can do to compel compliance.  They paramedics may, in the circumstances, need to advise the person that they should seek medical aid, or that there is a concern for their well-being. They may in some circumstances seek help from family, other health professionals or police. But if, at the end of the day, the patient refuses to cooperate then the paramedics need to write detailed notes (as the police in Stuart v Kirkland-Veenstra did) of what they did and what steps they took to assess the patient.

This comment was made in response to my earlier post –Paramedic registration if you are “working as a paramedic”? (August 6, 2018).

Following in from this, even after the consultation process, it would seem someone has decided to change the goal posts. Now you need 1700 hours with the jurisdictional ambulance service.

By what I am being told, military and private paramedical roles, careflight etc are not regarded as JAS hours.

I recall there is a federal law which states that a person has a right to earn a living. If employment requires someone to be a paramedic and loses their job because of a procedural change, the federal law comes into play. I wished I could remember the law the lawyer used to successfully defend a change to registration in another industry.

Your thoughts would be appreciated on these new unsolicited grandfather clause changes.

My response was so long I thought it warranted its own post.

The issue is that today, 18 August 2018, we don’t know what it means to be a paramedic (ignoring those provisions in Tasmania, SA and NSW that have paramedic title protection legislation).  The Board has to decide who is a ‘paramedic’.  I would suggest that there is an archetype” the paramedic working for the ‘jurisdictional’ ambulance services.  People who want to be registered but who don’t have an ‘adequate qualification’ have alternative paths to demonstrate that they have the skills and experience sufficiently akin to the archetype to warrant registration.

One path is the ‘Combination of qualifications/training and further study or a period of supervised practice’.  Under this pathway an applicant has to demonstrate, amongst other things ‘at least 1700 hours of supervised practice in a JAS or under a registered paramedic or passed a Board approved assessment’.  You can see that the ‘1700 hours with the jurisdictional ambulance service’ is one of three options.  It’s impossible at the moment to show practice ‘under a registered paramedic’ as today there is no such thing (at least not in Australia). But this may be applicable to people who seek registration during the next three years.

There is also a third pathway, the ‘Hours of practice pathway’ where an applicant has to show ‘5 years practice as a paramedic in the past 10 years’ and provide evidence of the ‘your competence as a paramedic’.  The suggested evidence for this pathway does not refer to hours of practice in the say way as pathway two.

The first comment is that registration under the grandparenting provisions does not require ‘1700 hours with the jurisdictional ambulance service’, that is one, but not the only, piece of evidence that may be used to support a claim for registration under the grandparenting provisions.

The second comment is that there has to be such a process. Your argument ‘a person has a right to earn a living. If employment requires someone to be a paramedic and loses their job because of a procedural change, the federal law comes into play’ implies that people who currently call themselves a paramedic should continue to do so.  Consider for example someone who works in a factory and they have an occupational first aid certificate.  Assume further that they are given the title ‘Paramedic’ by their employer – so the first aid procedures tells people to contact someone from the list of ‘paramedics’ and the first aid room is labelled ‘Paramedic room’.  In states other than Tasmania, NSW and SA there is nothing wrong or illegal in that. That person now says ‘I will lose my job as with registration my employer will now know that there is a difference and will, for all the reasons in favour of registration, change the job to require a person to be a registered paramedic.  I have been working as a paramedic for five years (that’s how long I’ve had the title) so I want to be registered. If that’s not accepted then the Board isn’t recognising non-JAS service and I’m being disadvantaged’.  That’s the same argument but probably no-one would suggest that a factory first aider is or should be a registered paramedic.

Equally a person may be a volunteer with an event first aid service. They may be trained in and respond with some scheduled pain relief drugs, oxygen, salbutamol, adrenaline and a defibrillator.  They may have 20 years’ experience and believe that they are as well trained and competent as any newly employed university graduate.  They too could argue that they deserve registration and under pathway 3 may be able to get registered given ‘practice as a paramedic’ is still an unclear issue. In fact, the Board will have to determine if that sort of practice constitutes ‘practice as a paramedic’. As those decisions are made, we will learn what that concept means.

That is why I say it’s inappropriate of the Board to say ‘Students, medics, volunteer ambulance officers and emergency medical technicians (EMTs) do not need to apply for registration’ (http://www.paramedicineboard.gov.au/documents/default.aspx?record=WD18%2f26029&dbid=AP&chksum=I3xOvykPdg9hdAPXZmbqEA%3d%3d; See also  Are St John volunteers paramedics? Should they be? (July 19, 2012)).  It’s inappropriate as it assumes that there is a clear line between those that practice as a paramedic and others; a there isn’t and won’t be until the Board starts making decisions on who gets registration and who does not. People who are employed under the title ‘medics, volunteer ambulance officers and emergency medical technicians (EMTs)’ or any other title don’t need to register if they don’t want to use the title ‘paramedic’ but that doesn’t mean that they won’t discover that their training, experience and practice means they can register.  Equally people who currently use the title ‘paramedic’ do need to register if they want to continue to use that title and they may discover that even though they’ve been called a ‘paramedic’ before the commencement date, that what they have been doing is not paramedic practice or paramedicine.

Employers may well say ‘we’ve employed someone and called them a paramedic but that title didn’t really mean anything, now it does mean something we’ve either got to change the title of our employee or we now see that the person we had in the job wasn’t actually the person we wanted to have in the job and so now we’re going to employ a registered paramedic for all the benefits that registration requires’. To do that presumably there would be industrial issues involved in regarding the position so that the job description of ‘factory paramedic’ has to be rewritten and the person currently in that job finds that they are no longer qualified for the job.  But that sort of thing happens all the time – jobs get redefined and people get ‘spilled’ and have to reapply for their own job and if the requirements have changed they may not be qualified for the new job.

The second comment then is that the transition to registration will necessarily require determinations as to who is a paramedic and what it means to practice as a paramedic.  The decision maker is the Board.  No doubt some people who currently call themselves a paramedic will find that they are not a modern paramedic.  And some people who perhaps did not use the title or thought they were not a paramedic will discover (or be able to establish) that the qualifications and experience mean they are able to register as a paramedic.  A person’s current job title – that they are currently called a paramedic – will not determine the matter.  And that may mean that some employers who thought they were employing a paramedic will discover that the person in the job is not a paramedic and if they want to employ a paramedic, that person will not be able to keep their job if they can’t get registered.  That is one of the advantages of paramedicine, it will mean employers won’t have to try and work out what qualifications an applicant has, they will be able to look to their registration, you either are a registered paramedic or you are not.

I have no idea what ‘federal law’ is being referred to (there are indeed laws about restraint of trade) but this won’t breach them.  A person who has used the title ‘paramedic’ but can’t get registered could keep their job if the employer says ‘we don’t need a paramedic, we’ll just change the job title’ but can’t if the employer says ‘we won’t a paramedic, we thought you were one, but now we know you’re not so we’ll have to go through the industrial process that may involve changing the job description, terminating your employment and readvertising’. The fact that this would be horrible for that person is not sufficient to allow them to register as a paramedic.

Conclusion

It’s taken time for the term ‘paramedic’ to develop meaning and it’s an ongoing process. Like all definitions as it develops some people will be clearly ‘in’ or ‘out’ and for others it will be less clear.  Some will get registered, some won’t. The process will give the concept and the profession meaning but no doubt will disappoint some people who think they are or should be considered paramedics but find they are not.  That is an essential process.

I have previously reported on the case of Dr Dr Hadiza Bawa-Garba, a UK doctor who was convicted of manslaughter and struck off as a medical practitioner following the death of a young patient. See:

• Professional discipline after serious criminal conviction – lessons from the UK (January 29, 2018); and
• Australian commentary on the case involving Dr Hadiza Bawa-Garba (February 4, 2018).

Bill Madden’s WordPress, a blog on medical-legal issues is reporting that Dr Bawa-Garba has been successful in her appeal against the decision to remove her name from the register of medical practitioners.  Her conviction for manslaughter remains.

Bill’s blog says:

A media summary of the appellate decision is available online.

Bawa-Garba v General Medical Council [2018] EWCA Civ 1879 opened with a comment from the Court that the central issue on this appeal is the proper approach to the conviction of a medical practitioner for gross negligence manslaughter in the context of fitness to practise sanctions under the Medical Act 1983 (“MA 1983”) where the registrant does not present a continuing risk to patients.

The Court concluded at [91] – [93]:

It is clear from that analysis that Ouseley J approached the matter on the basis that (1) the gross negligence manslaughter verdict meant that the Tribunal had to accept that Dr Bawa-Garba’s failings in her care and treatment of Jack had been truly exceptionally bad and had caused him very serious harm, (2) such culpability would require a sanction of erasure in order to maintain public confidence in the medical profession and its procedures for maintaining its professional standards unless there were sufficiently significant reasons for imposing a lesser sanction. That seems to us to be materially the same as a presumption that a conviction for manslaughter by gross negligence should lead to erasure in the absence of exceptional or truly exceptional circumstances, a proposition which Ouseley J rightly said (at [40]) was not correct.

As the Professional Standards Authority has emphasised, the present case is unusual. No concerns have ever been raised about the clinical competency of Dr Bawa-Garba, other than in relation to Jack’s death. This is so even though she continued to be employed by the Trust until her conviction and for a significant part of that time carried out clinical work as a doctor. She was described before the Tribunal as being in the top third of her Specialist Trainee cohort. The Tribunal was satisfied that she had remedied the deficiencies in her clinical skills, and it accepted the evidence of two consultants that she is an excellent doctor. The Tribunal was satisfied that the risk of her putting a patient at unwarranted risk of harm in the future was low in the sense, as stated in the Impairment Decision, that the risk of her clinical practice suddenly and without explanation falling below the standards expected on any given day is no higher than for any other reasonably competent doctor. The Tribunal also accepted the evidence that she was honest and reliable and had reflected deeply and demonstrated significant and substantial insight, even though it was unable to conclude that she had complete insight into her actions as it did not hear from her directly. It found that her deficient conduct in relation to the care and treatment of Jack was neither deliberate nor reckless and that she did not present a continuing risk to patients.

The Tribunal was an expert body entitled to reach all those conclusions. Indeed, none of them have been challenged by the GMC. The Tribunal was entitled to take into account, consistently with Bijl v General Medical Council [2001] UKPC 42, [2002] Lloyd’s Rep Med 60 at [13], that an important factor weighing in favour of Dr Bawa-Garba is that she is a competent and useful doctor, who presents no material danger to the public, and can provide considerable useful future service to society.

Today’s correspondent is:

… the First Officer of a Queensland Rural Fire Brigade. We have been recently advised that the Powers of an Authorised Officer can only be given to the First Officer and brigade officers 2-8 only (in my absence). We are told they cannot be conferred onto of the members of the brigade if an officer is absent, I.e the next most senior member who is not an elected officer as per the Rural Fire Brigade Manual.

This has caused considerable concern as previously it has been assumed that in the absence of the First Officer or a brigade officer, the powers would be transferred onto the next senior officer (which I can’t find a definition for in the Act) to allow fire fighting activities to be conducted I.e backburn, remove vegetation, gain access, cuts locks etc.

The other issues that has now arisen is surrounding the task of backburning for the purpose of extinguishing a Fire. Recent fire activity where out of area task forces have been sent to the incident has seen the incident control team send brigade officers to the location to authorise the crew to conduct a backburn (they had to wait for permission to be given in person rather than via radio from the incident control team). This obviously raises the issue of is this necessary and if this is necessary to have physical presence, does that person have to stay on site for the entire backburn? Or is it just the initial authorisation etc? The process of a backburn can range from anything from one hour to several days. The Act only authorises a Rural Fire Brigade Officer as an authorised Officer in their own brigade area and the powers do not apply out of area, hence how this has now come up.

Also, can the powers of an authorised Officer be approved over the phone by a First Officer or other authorised Officer? That is, can I authorise a backburn via phone call if I am not present at or near the incident (let say I am home and unable to respond but I am on the phone to crews that are)? Also, if I am at the incident control do I have authorise every action that needs the powers of an authorised Officer – let’s say 5 Locks have to be cut to get access to the fire on 5 different properties – or can the instruction access the fire and cut locks if necessary be sufficient?

Lastly, since the vast majority of our dispatches come via a fire communication centre, which follows established protocols and guidelines authorised by the Commissioner, would a response page to an incident confer the powers of the Commissioner onto us as an authorised officer or delegate etc for the purposes of firefighting? For example, if I am tasked to an incident and I am not an officer or I am not responding to an area that is my brigade area, can I cut a lock to access the fire or start a backburn on the basis that the dispatch by the communication centre is a delegation of the Commissioner’s authority?

The relevant powers of an authorised fire officer listed in the Fire and Emergency Services Act 1990 (Qld) s 53 ‘Powers of authorised officer in dangerous situations’.  I will not repeat them here but they are the standard range of powers you would expect a fire commander to have when responding to a fire or other emergency.  A fire officer is ‘… a person employed in the service who has the functions of fire prevention and fire control, and includes a person employed under this Act who is undergoing training as a fire officer’ (Fire and Emergency Services Act 1990 (Qld) Schedule 6).  A volunteer ‘First Officer of a Queensland Rural Fire Brigade’ is not a ‘fire officer’ as he or she is not an employee. It follows that he or she can’t be an ‘authorised fire officer’.

Sections 79-86 deal with Rural Fire Brigades.  Section 83 deals with the powers of a First Officer.  It says:

(1) Where, pursuant to notification given under section 82(2), a rural fire brigade is in charge of operations for controlling and extinguishing a fire, the first officer of the brigade has, for that purpose—

(a)          the powers of an authorised fire officer, subject to any limitation imposed by the commissioner; and

(b)          the control and direction of any person (including any fire officer) whose services are available at the fire.

(2) Any power exercisable by the first officer of a rural fire brigade may be exercised by any person acting at the direction of the first officer.

(3) Any person exercising a power or discharging a function under this section must comply with any code of practice and with any direction of the commissioner.

(4) In this section—

“first officer” includes, where the first officer of a rural fire brigade is unavailable to act, the next senior officer of the brigade who is available.

(5) Where a rural fire brigade is assisting in operations for controlling or extinguishing a fire, the person who pursuant to this Act or any direction given by the commissioner is in charge of those operations has the control and direction of the members of the rural fire brigade.

A notice under s 82(2) is a notice from the Commissioner identifying ‘the area for which and the circumstances in which the brigade is in charge of fire fighting and fire prevention’.

A first officer therefore is not an authorised fire officer but he or she may exercise all the powers of an authorised fire officer where the brigade is operating within the area defined in the s 82(2) notice.

Who is the next senior officer is not clear.  The Act (s 81) says this about officers:

(1) A rural fire brigade must elect a first officer to be in charge of the brigade.

(2) A rural fire brigade may also elect such other officers as it considers necessary.

Discussion

My correspondent’s first point is:

We have been recently advised that the Powers of an Authorised Officer can only be given to the First Officer and brigade officers 2-8 only (in my absence). We are told they cannot be conferred onto of the members of the brigade if an officer is absent, I.e the next most senior member who is not an elected officer as per the Rural Fire Brigade Manual.

The powers of an authorised officer are not ‘given’ or delegated to anyone by executive action.  The power to exercise those powers is set out in the Act.  The first officer, or in the first officer’s absence, ‘the next senior officer’.  The Act does not say that the first officer has to be present, it says the first officer has to be ‘unavailable to Act’.  What that might mean could vary in many circumstances.

Note also s 83(2) ‘Any power exercisable by the first officer of a rural fire brigade may be exercised by any person acting at the direction of the first officer’.   This allows a first officer to give ‘directions’ to anyone (not just a member of the fire brigade) and their action is in effect the exercise of those powers.  In other words, the first officer doesn’t personally have to do the things listed in s 53, he or she can direct others to do so.  Any other position would be impossible and would defeat the idea of being an officer that is the leader of the Brigade.

Reading s 83 the most senior officer can exercise the power of an authorised fire officer either personally or by directing someone else.  The Act does not require that officer to be present but to be available to Act.   If the officer is the Brigade commander (within the meaning of the Australian Interagency Incident Management System (‘AIIMS’)) he or she may be directing others but they may not be physically present together.  For example, a large brigade may have more than one appliance and crew; the first officer may be with one crew but still exercising command over the other.   In a reasonably small fire the first officer may be the incident controller and at a command post directing his or her own brigade as well as another ‘rural fire brigade [that] is assisting in operations for controlling or extinguishing [the] fire’.  If the first officer had to personally present it would beg the question of present where?

The second point is

This has caused considerable concern as previously it has been assumed that in the absence of the First Officer or a brigade officer, the powers would be transferred onto the next senior officer (which I can’t find a definition for in the Act) to allow fire fighting activities to be conducted I.e backburn, remove vegetation, gain access, cuts locks etc.

The problem here is what does ‘officer’ mean?  It’s not defined so does it mean ‘officer’ in the way the military use the term to distinguish between the officers and ‘other ranks’ or is an officer just any member in the way even a junior constable is described as a police officer?    The definition of ‘fire officer’ is ‘a person employed in the service who has the functions of fire prevention and fire control, and includes a person employed under this Act who is undergoing training as a fire officer.’  That isn’t making reference to rank and if it includes a trainee firefighter they are not an ‘officer’ in the way the military might use the term.

On the other hand the fact that a brigade is to elect a first officer and ‘such other officers as it considers necessary’ would suggest that an ‘officer’ is someone elected to an ‘office’ not any firefighter.

The conclusion is that we simply don’t know what ‘officer’ in s 83(4) means.  If ‘officer’ means a person elected to an office under s 81 then a brigade that responds to a fire without an ‘officer’ would be unable to take effective action.  I can’t imagine that is what the people of Queensland expect or want.  Given that outcome, and given the fact that when talking about QFES the Act refers to all members as ‘officers’ and assuming that the term means the same thing wherever it is used, I would infer that ‘officer’ in s 83(4) includes a ‘member’.  How seniority is determined within the Brigade is not defined so presumably that is a matter for Brigade rules (s 80).

Next my correspondent says:

The other issues that has now arisen is surrounding the task of backburning for the purpose of extinguishing a Fire. Recent fire activity where out of area task forces have been sent to the incident has seen the incident control team send brigade officers to the location to authorise the crew to conduct a backburn (they had to wait for permission to be given in person rather than via radio from the incident control team). This obviously raises the issue of is this necessary and if this is necessary to have physical presence, does that person have to stay on site for the entire backburn? Or is it just the initial authorisation etc? The process of a backburn can range from anything from one hour to several days. The Act only authorises a Rural Fire Brigade Officer as an authorised Officer in their own brigade area and the powers do not apply out of area, hence how this has now come up.

Given the wording of s 83, it makes sense to send local brigade officers to take command of the operations.  Why they can’t give the permission via radio or other means I have no idea. The Act says that the relevant commander is the first officer or ‘where the first officer of a rural fire brigade is unavailable to act, the next senior officer of the brigade who is available’.  Given modern communications technology and the concept of command and control as defined in AIIMS the commander can’t be where every firefighter is.   I can’t see that ‘available’ equals ‘physically present where the action is to be taken’.

Next:

Also, can the powers of an authorised Officer be approved over the phone by a First Officer or other authorised Officer? That is, can I authorise a backburn via phone call if I am not present at or near the incident (let say I am home and unable to respond but I am on the phone to crews that are)?

I think I have answered that.  The Act says that anyone can exercise the powers of the authorised fire officer if they are ‘acting at the direction of the first officer’.   It would be pointless if the first officer couldn’t direct a crew that is ‘over there’ to act.

Whether one is available to act may however depend on the circumstances.  And if you are at home, or on holidays, you may be in a position to take a phone call but you may not be in a position to assess the situation – to have adequate situational awareness – to make a proper decision.  A first officer would seriously need to consider what information was required, and if they had that, before making a decision or whether it would be better if you can’t turn out to leave the firefigting to those that can.  If you are at an Incident Control Centre on the other hand, that may indeed be the very best way to have the ‘bigger picture’ to make the decisions and communicate those decisions to the firefighters actually engaged in firefighting.

Also, if I am at the incident control do I have authorise every action that needs the powers of an authorised Officer – let’s say 5 Locks have to be cut to get access to the fire on 5 different properties – or can the instruction access the fire and cut locks if necessary be sufficient?

I can’t see that every step needs to be authorised. The power to ‘enter any premises’ and ‘bring any apparatus or equipment onto premises’ (s 53) would seem to broad enough to say ‘make your way from A to B and fight the fire there’.

Finally

Lastly, since the vast majority of our dispatches come via a fire communication centre, which follows established protocols and guidelines authorised by the Commissioner, would a response page to an incident confer the powers of the Commissioner onto us as an authorised officer or delegate etc for the purposes of firefighting? For example, if I am tasked to an incident and I am not an officer or I am not responding to an area that is my brigade area, can I cut a lock to access the fire or start a backburn on the basis that the dispatch by the communication centre is a delegation of the Commissioner’s authority?

I can’t see that this would work.  The Commissioner may have the power to delegate but that would be intentionally done, not by implication.  Where a brigade is responded the Commissioner can’t know each person on the truck and to imply that each carried the Commissioner’s authority would be to make a section like s 83 meaningless.  It would have no work to do. However a first officer doesn’t exercise the powers of an authorised fire officer because he or she has a delegation from the Commissioner, they can exercise those powers because the Parliament of Queensland has said that they can.

First conclusion

My first conclusion is that pretty much everything my correspondent has been advised is wrong.   It is my view that a rural fire brigade First Officer when operating within the Brigades area of responsibility can exercise the powers of an authorised fire officer.  The next most senior officer may exercise those powers where the first officer is unavailable to act.  I would infer that the Act uses ‘officer’ to mean ‘member’ (as in ‘police officer’) not ‘leader’ (as in ‘military officer’).    The Act refers to the officer being ‘unavailable to act’ not ‘present’.

But that’s not the end of the matter

The next question is who gave the advice?  If it is a middle manager saying ‘this is my interpretation of the Act’ it is, in my view, wrong.

But s 83 says, emphasis added:

Where, pursuant to notification given under section 82 (2) , a rural fire brigade is in charge of operations for controlling and extinguishing a fire, the first officer of the brigade has, for that purpose—

(a) the powers of an authorised fire officer, subject to any limitation imposed by the commissioner;…

So if the ‘advice’ is contained in an edict from the Commissioner that limits how first officers (and others) are to exercise their powers then that has to apply. So if the Commissioner has said that a first officer has to be present at wherever any of the powers listed in s 53 are to be exercised then that would be a ‘limitation imposed by the commissioner’ and would override the ‘default’ position that is set out in the Act.

Equally an edict from the Commissioner that a first officer cannot give directions by ‘phone or radio would also be a ‘limitation imposed by the commissioner’.

Ultimate conclusion

The final conclusion depends on who gave the advice and on what basis.  If they are reporting on a policy decision of the Commissioner (which one would expect to see in ‘standing orders’ or ‘handbook’ or however the Commissioner’s rules are communicated) then the Commissioner can impose limitations on a first officer’s power to exercise the powers of an authorised fire officer.  If the Commissioner has done that, then those limitations have to be applied.

If on the other hand it’s someone’s ‘interpretation of the Act’ in my view they are wrong. In an earlier post (Rural Fire Brigades as part of Queensland Fire and Emergency Services (not Queensland Fire and Emergency Service) (August 6, 2018)) I said ‘People who aren’t lawyers should stop giving legal advice and people should stop taking legal advice from people who aren’t lawyers…’  That still feels like good advice.

A council in Western Australia is drawing up a code of conduct for the bushfire fighting volunteers.  The draft document says:

6.1 Misconduct

(1)          For the purposes of this clause, misconduct is defined in accordance with section 4 of the Corruption Crime and Misconduct Commission Act 2003 (C&CM Act) [sic].

(2)          The Chief Executive Officer has a statutory obligation to report to the Corruption and Crime Commission any suspected misconduct by a VBFB member/s.

(3)          As public officers, VBFB Members should immediately report to the Chief Executive Officer any instance of suspected misconduct as defined in the C&CM Act.

(Note that the Corruption and Crime Commission Act 2003 (WA) was amended and renamed the Corruption Crime and Misconduct Act 2003 (WA) with effect on 1 July 2015 (see Corruption, Crime and Misconduct Act 2003 (WA) Compilation table and Corruption and Crime Commission Amendment (Misconduct) Act 2014 (WA)). The reference to the Corruption Crime and Misconduct Commission Act 2003 is reference to a non-existent Act and is a confusion of the titles of the Act from before and after 2015. It would appear to confirm my correspondent’s suggestion that the document has been ‘cut and paste’ from somewhere else rather than being written by reference to the current law).

The question I’m asked is ‘can volunteer firefighters generally be considered to be public officers, i.e. does it follow that in becoming a volunteer firefighter you become a public officer by default?’   My correspondent continues:

I know in some instances it’s quite clear that a volunteer is a public officer when;

They are an FCO [Fire Control Officer] exercising an authority given to them as an FCO specifically [Bush Fires Act 1954 (WA) ss] 14, 28, 39 (4), 56, writing permits etc.

When a volunteer firefighter turns out to a fire and exercises an authority under Secs 39A, 44, and including all the other volunteers and persons working under his/her command.

A member of a duly elected committee of a bush fire brigade.

A member of BFAC [Bush Fire Advisory Committee] under Sec 67.

A volunteer firefighter however does other duties described as functions of a brigade under 35A, as well as conducting HR [Hazard Reduction] burns where he/she isn’t exercising any authority, can they still be considered public officers? Probably in some instances they could be but in others not. Where is the line drawn?

Discussion

The answer won’t be found in the Bush Fires Act 1954 (WA) but in the Corruption Crime and Misconduct Act 2003 (WA).

The definition of misconduct in s 4 of the Corruption Crime and Misconduct Act 2003 (WA) is:
Misconduct occurs if —

(a) a public officer corruptly acts or corruptly fails to act in the performance of the functions of the public officer’s office or employment; or

(b) a public officer corruptly takes advantage of the public officer’s office or employment as a public officer to obtain a benefit for himself or herself or for another person or to cause a detriment to any person; or

(c) a public officer whilst acting or purporting to act in his or her official capacity, commits an offence punishable by 2 or more years’ imprisonment; or

(d) a public officer engages in conduct that —

(i) adversely affects, or could adversely affect, directly or indirectly, the honest or impartial performance of the functions of a public authority or public officer whether or not the public officer was acting in their public officer capacity at the time of engaging in the conduct; or

(ii) constitutes or involves the performance of his or her functions in a manner that is not honest or impartial; or

(iii) constitutes or involves a breach of the trust placed in the public officer by reason of his or her office or employment as a public officer; or

(iv) involves the misuse of information or material that the public officer has acquired in connection with his or her functions as a public officer, whether the misuse is for the benefit of the public officer or the benefit or detriment of another person,and constitutes or could constitute —

[(v) deleted]

(vi) a disciplinary offence providing reasonable grounds for the termination of a person’s office or employment as a public service officer under the Public Sector Management Act 1994 (whether or not the public officer to whom the allegation relates is a public service officer or is a person whose office or employment could be terminated on the grounds of such conduct).

A fundamental part of this definition is that the person is a ‘public officer’ and as sub-para 6.1(3) of the draft Code Of Conduct anticipates that volunteer fire fighters are public officers.  Judicial officers and parliamentarians are not employees and in some jurisdictions neither are police.  Their office of ‘judge’ or ‘constable’ is a public office.  Volunteers are by definition not employees but if they hold a relevant office they are a public officer even though they are not an employee.

So what is a public officer? In Bonney v Ngunytju Tjitji Pirni Aboriginal Corporation [2009] WASC 209 Beech J had to consider whether the defendant corporation was a public officer.  He said:

The concept of the holder of a ‘public office’ … is a broad one: Cannon v Tahche [2002] VSCA 84; (2002) 5 VR 317. Most commonly it has been applied to persons who exercise executive administrative powers, including a sheriff and police officers: Farrington v Thomson [1959] VicRp 49; [1959] VR 286; stock inspectors: Northern Territory v Mengel; and a Minister: Sanders v Snell. It may also include those who exercise a judicial function: Cannon v Tahche [41] – [47]…

In many cases, it has been said that a public office ‘must be one the holder of which owes duties to members of the public as to how the office shall be exercised’: Tampion v Anderson [1973] VicRp 70; [1973] VR 715, 720; Henderson v McCafferty [2000] QSC 410; [2002] 1 Qd R 170. In Cannon v Tahche the Victorian Court of Appeal suggested that that criterion may be over-inclusive. In other words, their Honours doubted the sufficiency of satisfaction of that criteria. They concluded that it was essential that the office have, as an incident of it, a power in the discharge of which the public has an interest.

The cases emphasise that ‘ public officer’ may bear different meanings in different contexts. See, for example, Henderson v McCafferty [32] – [33].

In Powell v The State of Western Australia [2010] WASC 54 it was not disputed that a bus driver was a public officer.  I would suggest that many of the things a bus driver does is not explicitly set out in the relevant legislation.

According to the Corruption, Crime and Misconduct Act 2003 (WA) s 3 ‘public officer has the meaning given by section 1 of The Criminal Code’.  The Criminal Code appears as Appendix B to the Criminal Code Act Compilation Act 1913 (WA).  The Criminal Code s 1 defines public officer as:

(a) a police officer;

(aa)        a Minister of the Crown;

(ab)        a Parliamentary Secretary appointed under section 44A of the Constitution Acts Amendment Act 1899;

(ac)        a member of either House of Parliament;

(ad)        a person exercising authority under a written law;

(b)          a person authorised under a written law to execute or serve any process of a court or tribunal;

(c)           a public service officer or employee within the meaning of the Public Sector Management Act 1994;

(ca)        a person who holds a permit to do high-level security work as defined in the Court Security and Custodial Services Act 1999;

(cb)        a person who holds a permit to do high-level security work as defined in the Prisons Act 1981;

(d)          a member, officer or employee of any authority, board, corporation, commission, local government, council of a local government, council or committee or similar body established under a written law;

(e)          any other person holding office under, or employed by, the State of Western Australia, whether for remuneration or not;

Without checking the definition of ‘public service officer’ I suggest the paragraphs that may capture a volunteer firefighter are (ad) and (d), highlighted in bold, above.

Bushfire brigades are established by local governments (Bush Fires Act 1954 (WA) s 41).   A ‘member’ of a local government is the mayor, president or councillor (Local Government Act 1995 (WA) s 1.4).  The term ‘officer … of any … local government’ is not used in the Local Government Act.   A volunteer is, by definition, not an employee.

It follows that a registered member of a bush fire brigade is a public officer if he or she is ‘exercising authority under a written law’ or if the fire brigade of which they are a member is a ‘similar body’ to an ‘authority, board, corporation, commission, local government, council of a local government, council or committee’.

As my correspondent has noted firefighters exercise at different times, authority under the Bush Fires Act 1954 (WA) so when they are doing that they are a public officer.

The Fire Brigade is established by the local government authority for the purpose of assisting the Council to meet its obligations under the Bush Fires Act.  The council is required to ‘keep a register of bush fire brigades and their members’ (Bush Fires Act 1954 (WA) s 41(2), emphasis added).  It follows that firefighters are ‘a member’.  The council ‘may, in accordance with those local laws, equip each bush fire brigade so established with appliances, equipment and apparatus’ (s 41(1)). Council provides the means for the appointment or election of officers (s 43).

Whilst it would be open to debate I would think that a fire brigade established by a council is relevantly similar to an authority, board … or committee established under a written law’ as it will be established by a written law both of the State and the local government local law.  The fact that is not a separate legal entity I don’t think makes a difference as neither is a committee (usually) a separate legal entity and an authority or board don’t need to be separate legal entities.

Bush fire brigades are established by virtue of the Bush Fires Act, they are established to perform functions in the public interest and are equipped from the public purse.  Exercising the powers and functions of the brigade, members are exercising power and authority ‘of which the public has an interest’.

If that’s correct then membership of a volunteer fire brigade is a public office and a volunteer firefighter is a public officer.  We can conduct a ‘reality test’ to see if that offends our sense of justice.  If a firefighter is a public officer then a member who ‘corruptly takes advantage of’ his or her membership of the fire brigade ‘to obtain a benefit for himself or herself or for another person or to cause a detriment to any person’ would be guilty of misconduct. That sounds rights.

Further, a firefighter would be guilty of misconduct if they engage in conduct that —

(i) adversely affects, or could adversely affect, directly or indirectly, the honest or impartial performance of the functions of a public authority or [another] public officer …; or

(ii) constitutes or involves the performance of his or her functions [as a firefighter] in a manner that is not honest or impartial; or

(iii) constitutes or involves a breach of the trust placed [in firefighters…]; or

(iv) involves the misuse of information or material that the [firefighter]… has acquired in connection with his or her functions as a [firefighter]… whether the misuse is for [his or her] …benefit … or the benefit or detriment of another person,

and which could constitute ‘a disciplinary offence providing reasonable grounds for the termination of a person’s office or employment as a public service officer under the Public Sector Management Act 1994 [even though the firefighter is not a] … a public service officer or … a person whose …. employment could be terminated’ because they are not an employee.  Again that sounds like a reasonable outcome.

Conclusion

It is debatable, but I would accept that membership of a bushfire brigade in WA is a public office for the purposes of the Corruption Crime and Misconduct Act 2003 (WA).  It follows that on balance I would accept that a member is a public officer by virtue of their membership.

This question follows from my post ‘What obligation does local government have to assist the NSW Rural Fire Service?’ (August 8, 2018).  In that post, I said “There is no power in the Rural Fires Act 19997 (NSW) to allow the RFS to commandeer assets or demand cooperation from a local government authority (or from anyone).”  So today’s correspondent asked:

Who does have the power to commandeer vehicles and/or equipment, and under what conditions?  I am sure it would be a whole gamut of shades of grey depending on your location, your legislated role (“Emergency Officer” or a normal member), the specific usage case (whether you are commandeering the machinery because someone is under a direct and immediate threat to life), whether a reasonable person would believe the equipment would make a difference, whether a reasonable person would consent to being asked for permission to use it, etc.

Somewhat related, if someone was to “commandeer” (the basic actions, rather than the legal right to do so) equipment, but they intended to return it to the owner afterwards, what would they be charged with? I remember reading somewhere that, in order to satisfy the definition of “theft”, there has to be an intent to permanently deprive the rightful owner of the item.

It is indeed true that the answer depends on who you are, in what jurisdiction and in what circumstances.  In every jurisdiction there are specific, and clear, powers to commandeer assets.

Specific powers The Australian Capital Territory

Where there is an emergency and an emergency controller has been appointed, the emergency controller may ‘direct, in writing, the owner of property in or near the emergency area to place the property under the control, or at the disposal, of an emergency controller’ (Emergencies Act 2004 (ACT) s 150(2)(c)).  A similar power exists where a formal declaration of emergency has been issued (s 160A(2)(c)).

New South Wales

In a declared state of emergency ‘… the Minister may, for the purposes of responding to the emergency, take possession and make use of any person’s property’ (State Emergency And Rescue Management Act 1989 (NSW) s 38).

The Northern Territory

In a declared ‘emergency situation’, an ‘authorised officer’ may ‘direct the owner or occupier of property in or near the affected area to place the property under the control of the authorised officer’ (Emergency Management Act 2013 (NT) s 23).  During a declared state of emergency or a state of disaster an authorised officer may also ‘direct a person to assist in tasks to save life or property in immediate danger in the affected area’ (s 24).

Queensland

Where there is a declared ‘emergency situation’, the emergency commander (Public Safety Preservation Act 1986 (Qld) s 8) may:

(a) direct the owner or the person for the time being in charge or in control of any resource to surrender it and place it under the emergency commander’s or police officer’s control (“resource surrender direction”);

(b) take control of any resource, whether it is in the charge or control of any person or not;

(c) in respect of any resource under the emergency commander’s or police officer’s control, direct any person who is capable of operating that resource to operate it as directed by him or her (“resource operator direction”)

South Australia

An officer of the Metropolitan Fire Service, the Country Fire Service and the State Emergency Service may, for the purpose of responding to a fire or other emergency,  ‘take possession of … or assume control over any … vehicle or other thing’ and may ‘direct the owner of, or the person for the time being in charge of, any real or personal property to place it under the control or at the disposition of a specified person’. He or she may also ‘direct … any person … to assist in the exercise of any power’ (Fire And Emergency Services Act 2005 (SA) ss 42, 97 and 118).  The state coordinator and authorised officers have similar powers during an ‘identified major incident, a major emergency or a disaster’ (Emergency Management Act 2004 (SA) s 25).

Tasmania

During a declared state of emergency the State Controller and Regional Controllers may exercise special emergency powers.  These special powers are (Emergency Management Act 2006 (Tas) s 43 and Schedule 2) the power to:

(a) direct that the resources of the State and any council or other person be made available for emergency management as specified in the direction; and

(b) require the owner (including a council) of, or the person for the time being in charge of, any resources to surrender the resources and place them under the control of any person involved in emergency management…

Victoria

During a declared state of disaster, the Minster may ‘take possession and make use of any person’s property as the Minister considers necessary or desirable for responding to the disaster’ (Emergency Management Act 1986 (Vic) s 24).

Western Australia

During a declared ‘emergency situation’ or ‘state of emergency’ a hazard management officer or authorised officer may ‘… take control of or make use of any place, vehicle or other thing’.  That ‘place, vehicle or other thing may be in, or outside, the emergency area’ (Emergency Management Act 2005 (WA) s 69.

General powers

Apart from these specific powers there are general powers vested in the chief officer, commissioner, authorised officers or some other position of the emergency services.  These powers are in the form of a statement that the relevant officer can do anything that he or she thinks is necessary, or reasonable, or expedient to deal with the emergency.  There then follows a list of powers but these are said not to limit the general power. These general powers may include a power to take control of an asset but the purpose is usually to secure the asset or protect it from danger or remove it where it is contributing to the danger.  For these general provisions, see Emergencies Act 2004 (ACT) ss 67(2)(d) and 68(2)(d); Fire Brigades Act 1989 (NSW) s 13; Rural Fires Act 1997 (NSW) s 22; State Emergency Service Act 1989 (NSW) s 22A; Bushfires Management Act 2016 (NT) s 47; Fire and Emergency Act (NT) s 20; Ambulance Service Act 1991 (Qld) s 38 (see also Requiring a bystander to assist a Queensland paramedic (February 18, 2017)); Disaster Management Act 2003 (Qld) ss 110 and 111; Fire and Emergency Services Act 1990 (Qld) ss 53, 83 and 149; Fire Service Act 1979 (Tas) s 58; Emergency Management Act 2006 (Tas) s 40 and Schedule 1; Country Fire Authority Act 1958 (Vic) s 30; Metropolitan Fire Brigades Act 1958 (Vic) s 32B; Bush Fires Act 1954 (WA) ss 39 and 44; Fire Brigades Act 1942 (WA) s 34; Fire And Emergency Services Act 1998 (WA) ss 18B, 18G and 18L).

Arguably, these general provisions would allow a commander to take control of an asset that would contribute to the response. Arguing against that interpretation is that it is clear that the parliamentary drafters know how to write provisions that authorise a person to commandeer assets. We can see in the provisions discussed above, that they have done so. If they wanted to give incident controllers that power as part of their routine operations, they could and would have done so as has been done in South Australia (see Fire And Emergency Services Act 2005 (SA) ss 42, 97 and 118).

Even if the power were interpreted in that way, it has to be limited to the presence of the emergency area so a fire incident controller may want to make us of a vehicle that is in the fire ground but it would not extend to travelling to the next council and demanding that they provide their grader or bulldozer to the fire effort.

What consequences?

It is impossible to say what the consequences would be if someone did simply take equipment that they thought was necessary for the response effort.  The common law (Ilich v R (1987) 162 CLR 110 at 123) defined larceny (theft) as:

… a person who, without the consent of the owner, fraudulently and without a claim of right made in good faith, takes and carries away anything capable of being stolen with intent, as the time of such taking, permanently to deprive the true owner thereof.

Without going into details in the circumstances under consideration it may be hard to say the taking was ‘fraudulent’ or that there was an intent to permanently deprive the true owner. But the common law has been changed by statute so it may no longer be necessary to prove an intent to permanently deprive (see Crimes Act 1900 (NSW) s 118) or there may be specific offences, eg ‘taking a conveyance without consent of owner’ (see Crimes Act 1900 (NSW) s 154A).

If a fire officer really did take something in the face of imminent danger and because he or she believed it was necessary to respond to the emergency they would be able to point to the common law defence of necessity (or it statutory equivalent in jurisdictions with a Criminal Code – Queensland, the Northern Territory and Western Australia) (see The doctrine of necessity – Explained (January 31, 2017)).

What follows is that I can’t say what a person may be charged with, if they would be charged at all, it would depend on all the circumstances.

Conclusion

The question that started this was whether a council in NSW had an obligation to provide plant to support an RFS response (What obligation does local government have to assist the NSW Rural Fire Service? (August 8, 2018)).   I said “There is no power in the Rural Fires Act 19997 (NSW) to allow the RFS to commandeer assets or demand cooperation from a local government authority (or from anyone).”   The discussion above shows that the power to commandeer assets does exist but, with the exception of South Australia, that is generally only during a declared emergency or disaster or other situation defined in the relevant legislation.

The general powers of incident controllers may extend to taking and using private assets but if it did it would be limited and apply to assets that are very much in the disaster zone, not travelling outside that area to insist that neighbours provide equipment to assist in the response.

 

 

 

 

Today’s correspondent asks if I am:

…aware of any situations, issues, case law precedents around hospitals providing advice to patients over the phone.

I am aware of a recent situation, where a middle-aged person called a local rural community hospital with a three-day history of shoulder, neck and elbow pain.  The nursing staff member who answered the call advised them that they should seek medical advice due to a concern it could be cardiac.  The nurse advised the patient to call an ambulance or get someone to drive them to hospital.  Approximately one hour later the patient was found deceased in the hospital car park.  A review of the CCTV footage after the fact shows the patient approach the front door of the hospital’s emergency entrance but he does not enter or push the doorbell seeking assistance.

The question posed was “should the nurse have called the ambulance themselves if they were genuinely concerned that the patient had a potentially serious problem?”

I am aware of situations where a person has presented at the hospital telling the staff that someone has collapsed at a house nearby.  I know in this situation, calling the ambulance for the patient is the right thing to do.

I would appreciate any thoughts or comments you might have on this.

I am not aware of any case law on ‘hospitals providing advice to patients over the phone’ but I can comment on the scenario using general principles.

We can start with the case that gets mentioned very often on this blog, Stuart v Kirkland-Veenstra [2009] HCA 15.  That case confirmed that there is no general duty to rescue in Australian common law. We can dig a bit deeper on that general claim.  First in that case the issue was a duty to protect Mr Veenstra from harm where he was the source of the harm. That is not the situation described above. Although the case is not directly ‘on point’ there are some relevant observations.  At [116] Gummow, Hayne and Heydon JJ said:

…the police officers did not control the source of the risk to Mr Veenstra as would have been the case if he had been a prisoner in custody. No doubt it can be said that the police officers knew of the particular risk to Mr Veenstra… No doubt it can also be said that they were in a position to control or minimise the occurrence of the observed risk … But considerations of the same kind will almost always be present when a passer-by observes a person in danger. The passer-by can see there is danger; the passer-by can almost always do something that would reduce the risk of harm. Yet there is no general duty to rescue. And unlike the case in Crimmins, it was not the officers who put Mr Veenstra in harm’s way.

At [127] Crennan and Kiefel JJ said:

The common law generally does not impose a duty upon a person to take affirmative action to protect another from harm. Such an approach is regarded as fundamental to the common law and has as its foundation concepts of causation. The law draws a distinction between the creation of, or the material increase of, a risk of harm to another person and the failure to prevent something one has not brought about… The common law does recognise that some special relationships may require affirmative action to be taken by one party and are therefore to be excepted from the general rule. Examples of such relationships are employer and employee, teacher and pupil, carrier and passenger, shipmaster and crew.

We can apply these principles to the scenario.  The person has rung the hospital.  In deciding whether there is some professional relationship one has to consider that the nurse did not control the risk to the patient.  This is quite different is the risk to a patient in the hospital is the risk of medication error or of falls etc.  (Here I’m drawing a parallel to police in a carpark vis-à-vis the duty owed by police to a prisoner in custody and discussed in Stuart v Kirkland-Veenstra, above). The nurse may be aware that there is a risk to the patient’s health and safety, hence the advice to ‘call an ambulance or get someone to drive them to hospital’ .  But just because the ‘[nurse or] passer-by can see there is danger’ and can ‘do something that would reduce the risk of harm’ that does not create a legal duty to take that action.  There is no duty to rescue.

But as noted by Crennan and Kiefel JJ ‘some special relationships may require affirmative action to be taken by one party and are therefore to be excepted from the general rule’ that there is no duty to rescue.  To the list given by their Honours there could be added doctor/patient, nurse/patient and hospital/patient.   The first question would be then whether the phone call to the nurse created a nurse or hospital/patient relationship.  In Barnett v Chelsea And Kensington Hospital Management Committee [1969] 1 QB 428 the court was asked to:

… determine the duty of those who provide and run a casualty department when a person presents himself at that department complaining of illness or injury and before he is treated and received into the hospital wards.

Neld J said:

In my judgment, there was here such a close and direct relationship between the hospital and the watchmen that there was imposed upon the hospital a duty of care which they owed to the watchmen. Thus I have no doubt that Nurse Corbett and the medical casualty officer were under a duty to the deceased to exercise that skill and care which is to be expected of persons in such positions acting reasonably …

The question then is whether making a phone call is akin to the patient presenting ‘himself at that department complaining of illness or injury’.  To determine that question I would want to know whether the hospital holds itself out as providing a phone health service.’ If not one cannot demand that a potential defendant provide a service it in no way claims to provide. ‘Health Direct’ (https://www.healthdirect.gov.au/) does claim to provide ‘24 hour health advice and information you can count on’ so you may expect a different level of service, and protocols for when the telephone staff will take action. But a hospital that doesn’t offer a phone in health service may still stand as a stranger to the person who calls.

If the phone call does create a professional relationship, the response to the risk need only be reasonable. It would not be reasonable to expect that ‘a local rural community hospital’ will have the sort of protocols and processes that one might expect from ‘Health Direct’ if it doesn’t pretend to offer the same sort of service.   Further the reasonable response to a risk, in this case the risk that the patient may be having a cardiac event, need only be reasonable.

In Wyong Shire v Shirt [1980] HCA 12, Mason J of the High Court said (at [14]):

In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant’s position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man’s response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant’s position.

This position has been replaced by a similar, but not identical calculus in modern legislation but the principles are sufficiently similar that considering this list will suffice for our purpose.

The foreseeable risk was that the patient was suffering an cardiac episode and may indeed die without medical intervention such that the nurse suggested he or she should attend hospital. Given the risk is foreseeable the next issue what is the magnitude of the risk? Answer very high, it could be life or death. What was the degree of probability that it was a life and death matter?  Here we know that the patient had ‘a three-day history’ of symptoms, was able to call the hospital and presumably have a lucid conversation without too much difficulty.  Questions to be asked would indeed be how did the caller sound on the ‘phone? When it was suggested that they call an ambulance or arrange a friend to drive them to hospital did they say that they could not do either of those things, either because they were too unwell or otherwise incapable?  One might think the likelihood that this condition would prove fatal within the hour was, objectively judged at the time of the call, low.  Remember that the defendant’s conduct has to be judged at the time.  The fact that the patient did die an hour later is irrelevant. The question is was there any reason for the nurse to think that is what would happen.

What could the nurse have done? He or she could have called an ambulance but there are conflicting duties in particular respect for patient autonomy.  If this patient has indicated that he or she has heard the advice and will take action why would you impose an ambulance upon them? And did the nurse have the details necessary such as the patient’s address? And if the patient appeared capable it would be better for them to ring the ambulance so they can relay their sign and symptoms and answer the call taker’s questions.

That doesn’t mean there may not be a duty to call an ambulance (assuming the circumstances did give rise to a therapeutic relationship).  Where the patient is clearly struggling for breath, reporting urgent symptoms, barely able to talk etc. That all goes to the assessment of how likely is the poor outcome.  If we don’t take into account the practitioners assessment of ‘the degree of the probability’ of a poor outcome, we would have to say that every time someone rings a hospital for advice they have to call an ambulance ‘just in case’ and that can’t be reasonable.

Where someone comes into a hospital and tells the staff that ‘someone has collapsed at a house nearby’ we may think calling an ambulance is a reasonable response but that doesn’t mean that there is a legal obligation to call the ambulance and secondly a person collapsed is quite different to a person on a phone reporting a three-day history of symptoms.

As for the person collapsed in the car park but who did not ‘enter or push the doorbell seeking assistance’ there would be a duty to provide assistance to them but only once they are discovered.

Conclusion

One really can’t say whether ‘the nurse [was under a legal duty to] have called the ambulance themselves’.  It would depend on the nurse’s assessment of the patient’s capacity, the severity of the symptoms, any operating protocols or procedures of the hospital, what information the nurse had about the patient.  Issues like this all depend on the assessment of the situation at the time of the call, when the person did not know that the patient would be found dead an hour later, and a ‘reasonable’ response to the situation as it presented itself.

My ‘gut’ reaction would be that as a general rule there would be no legal obligation to call the ambulance but my view might change if the hospital did claim to offer a phone in health service and/or the patient was in obvious distress, or ‘in extremis’ whilst on the ‘phone.

For related posts see

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

 

 

 

I subscribe to an email list of disaster/law research that comes out of University of California, Berkeley.   A contributor to that list, Professor Denis Binder (Chapman University, California) has put together a list of worldwide criminal prosecutions in non-terrorist disasters and tragedies.  The initial list, from 2016, is on his website at http://denisbinder.com/criminal-prosecutions-for-disasters/ 

Professor Binder has just issued a 2018 list.  He says:

… The original posting included 200 incidents. This revised listing includes 421 incidents, many of which preceded the earlier posting date of September 26, 2016. Much of the increase is due to the ability to uncover prior incidents, many of which received little publicity or have been forgotten in time. One example is the October 22, 1895 French railroad crash with the classic photo of the locomotive resting at a 90° angle outside the station. I could easily find it once I had a clue on what to look for. Another reason is the increased posting online of earlier publications.

This list will never be complete. Do not therefore treat it as 100% accurate or definitive. Instead view it as a “ball park” figure, representative of the cases. For example, India leads the listings with building collapses followed by China with mining disasters. Other incidents exist in these countries, but it not always possible to find reports of criminal prosecutions in every reported building collapse or mining disaster. My listings are for those which I can ascertain criminal proceedings on the internet.

The criteria for listing remains the same in 2018 as in 2016. Listings are based on incidents with at least one fatality, except for environmental disasters with extensive environmental damages, such as oil spills contaminating hundreds of miles of shoreline…

Workplace accidents and construction accidents are common globally. They are not included in the listing, unless a major tragedy such as the 2015 1,350 ton crane collapse at Mecca with 111  fatalities or the 2016 scaffolding collapse in Fengcheng, China, killing 74 workers on a cooling tower under construction. In those situations I added similar incidents with a fatality to the list…

The lists do not include an analysis of the results, which can be found for the first listing at Denis Binder, The Findings of an Empirical Study of the Application of Criminal Law in Non-Terrorist Disasters and Tragedies, https://doe.org/10.1016/jfutures.2018.01.008 and Denis Binder, The Findings of an Updated Study of the application of Criminal Law in Non-Terrorist Disasters and Tragedies, 9 The Bus. & Mgmt. Rev. 153, Vol 2 (November 2017).

My theses in collecting  the cases were multiple:

1)            A substantial increase in prosecutions have occurred in the New Millennium;

2)            Cases often involve government officials and employees for corruption, dereliction of duty, and negligence;

3)            Many of the cases arise in Asia and the Pacific Islands, and

4)            The substantial increase in prosecutions in the New Millennium is probably caused by the widespread use of cell phones with photo and video capability and social media.

I cannot prove the fourth premise. Nor can I often explain why some incidents result in prosecutions while similar ones do not.

Two surprising discoveries were the large number of cases in which charges were brought against architects and especially engineers. The second surprise is that a number of cases dragged on for over a decade. Delays in initiating legal proceedings can be due to the technical expertise that must be used to determine the cause of the incident and the extent of human involvement in the disaster and tragedy.

The 2018 list is not yet online but Professor Binder does say that he ‘will be posting it on line shortly’.   The list isn’t of obvious application to readers of this blog, but it’s interesting and being interested, you may want to go an look at it.

 

The Workers Compensation Commission of NSW handed down a decision in the matter of Hay v Commonwealth Steel Company Pty Ltd [2018] NSWWCCPD 31 on 31 July.  It appears to me that the lawyers on both sides of the issue may have misunderstood the law as they failed to distinguish between Fire and Rescue NSW and the NSW Rural Fire Service.

Mr Hay was employed by the Commonwealth Steel Company Pty Ltd from 1988 to 1993 as a furnace assistant and later as a machine operator.  He made an application for compensation for work related hearing loss.  Because hearing loss (like other degenerative conditions) occurs over time an applicant can’t say how much of the loss is attributable to different employers if he or she worked in more than one noisy job.  The relevant claim is to be brought against the last noisy employer (Workers Compensation Act 1987(NSW) ss 15 and 17).

Mr Hay was also a volunteer with the NSW Rural Fire Service.  The critical sentence in the Commission’s decision was at [5].  Deputy President Wood said:

It was common ground that as a volunteer fire fighter, Mr Hay was deemed to be a worker pursuant to cl 13 of Sch 1 to the 1998 Act. Mr Hay conceded that while fighting fires, he was exposed to excessive noise.

If the Rural Fire Service was the last noisy employer then it was the RFS and not the Commonwealth Steel Company that had to deal with the claim.  (The RFS, it should be noted, was not a party to these proceedings).  We can accept, for the sake of the argument, that Mr Hay ‘was exposed to excessive noise’ as a firefighter.  What concerns me is the comment that ‘It was common ground that as a volunteer fire fighter, Mr Hay was deemed to be a worker pursuant to cl 13 of Sch 1 to the 1998 Act’.  To say that it was ‘common ground’ means that the lawyers for both Mr Hay, and for the Commonwealth Steel Company accepted that this proposition was true.  The Commission’s job is to rule on the issues in dispute between the parties.  Because there was no dispute the court didn’t ask itself whether this claim was true, rather it made a decision assuming this proposition was true. It is my view that the claim ‘Mr Hay was deemed to be a worker pursuant to cl 13 of Sch 1 to the 1998 Act’ was in law, wrong.

Schedule 1 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) refers to ‘deemed employment of workers’.  ‘Deem’ means ‘regard or consider in a specified way’ (Oxford English Dictionary (online)).  To ‘deem’ someone as an employee means to regard or consider them as employee even if they are not.  The point of having some people ‘deemed’ to be an employee is that it means they are entitled to workers compensation even though they are not, in reality, an employee.  Volunteers are necessarily not employees so if a volunteer is a deemed employee it ensures they get compensation.

Clause 13 of Schedule 1 says:

Fire fighters in fire districts(cf former Sch 1 cl 13)

(1)  A person who (without remuneration or reward):

(a)  voluntarily and without obligation engages in fighting a bush fire in any fire district constituted under the Fire Brigades Act 1989 with the consent of or under the authority and supervision of or in co-operation with:

(i)  any volunteer fire brigade within the meaning of that Act, or

(ii)  the Director-General or any officer of New South Wales Fire Brigades or any member of a permanent fire brigade, or

(b)  is undergoing training for the purposes of fighting bush fires in those circumstances,

is, for the purposes of this Act, taken to be a worker employed by the Director-General of New South Wales Fire Brigades.

(2) …

(3)  In this clause:

bush fire means a fire burning in grass, bush, scrub or timber and any fire arising from such a fire.

fighting, in relation to a bush fire, includes any reasonable act or operation performed by the person concerned at or about the scene of or in connection with a bush fire, which is necessary for, directed towards or incidental to the control or suppression of the fire or the prevention of the spread of the fire, or in any other way necessarily associated with the fire.

Anyone from one of the New South Wales fire services should see the problem.

Fire and Rescue NSW is the service established ‘for preventing and extinguishing fires and protecting and saving life and property in case of fire in any fire district’ (Fire Brigades Act 1989 (NSW) s 6).  The Rural Fire Service operates within rural fire districts (Rural Fires Act 1987 (NSW) ss 6 and 9).

The Fire Brigades Act 1989 (NSW) s 3 defines a volunteer fire brigade as ‘any association of persons for which an approval as a volunteer fire brigade is in force under section 9, but does not include a rural fire brigade’ (emphasis added).  In Fire and Rescue fire stations that are staffed by both permanent and retained firefighters, it is considered that there are two brigades, the permanent brigade and a volunteer brigade, even though Fire and Rescue ‘volunteers’ are in fact paid a retainer for their services (see Fire Brigades Act 1989 (NSW) s 3 and Who’s the officer in charge? – NSW Fire and Rescue (September 3, 2013)).

Rural fire brigades, on the other hand, are established by the Rural Fires Act 1997 (NSW) Part 2, Division 3.

Clause 13 of Schedule 1 could apply to an RFS volunteer where the RFS brigade is operating in a fire district to assist Fire and Rescue NSW but I don’t think that’s the intention of the Act.  Even if it did apply then the deemed employment would only be for the period of that operation, and not for the entire period of the person’s volunteering with the RFS.

What follows is that if Mr Hay was a member of the Rural Fire Service Clause 13 of Schedule 1 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) does not apply to him.  That clause is there to ensure volunteers with Fire and Rescue NSW get workers compensation.  Compensation for volunteers with the Rural Fire Service is governed by the Workers Compensation (Bush Fire, Emergency and Rescue Services) Act 1987 (NSW).  That Act creates a statutory scheme but does not deem the volunteers to be employees.

Further, if I’m correct, Mr Hay’s last noisy employer was the Commonwealth Steel Company. Even if he was exposed to noise as an RFS volunteer, the RFS was not his deemed employer.  If that’s correct then the Commission, that was asked to determine ‘whether Commonwealth Steel was the “last noisy employer” for the purposes of s 17(1) of the 1987 Act’ was not told the correct legal position.

Conclusion

The lawyers for both Mr Hay and the Commonwealth Steel Company Pty Ltd appear to have missed the fact that in New South Wales there are two fire services – Fire and Rescue NSW and the NSW Rural Fire Service.  They have seen a reference to Fire Brigades and fire fighter in Clause 13 of Schedule 1 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) and assumed that applied to a volunteer in the Rural Fire Service.  That was, in my view, an error.  If I am correct the mistake has corrupted the decision of the Workers Compensation Commission.  The arbitrator at first instance, and then the Deputy President on appeal, accepted the position of the lawyers and did not look at the operation of the Fire Brigades Act vis-à-vis the Rural Fires Act.  Again, if I’m correct, it means the decision in Hay v Commonwealth Steel Company Pty Ltd [2018] NSWWCCPD 31 was based on incorrect law.  That does not mean the outcome was wrong because the case turned on other issues and it may be that this issue ended up not being a critical factor in the final decision, but it is a matter of concern that a tribunal has made a decision, at least in part, on an incorrect application of law.

In United Firefighters Union of Australia v Metropolitan Fire and Emergency Services Board [2018] FCA 1161 the Metropolitan Fire and Emergency Services Board was ordered to pay a penalty of $25 000 for contravening the enterprise agreement (‘the EA’) that was in place between the Board and the Union.

The parties agreed on the facts. Very briefly the issue was that the Board significantly changed the way it would recruit firefighters but did so without consulting the union.  The EA said at clause 15:

Where the employer wishes to implement change in matters pertaining to the employment relationship in any of the workplaces covered by this agreement the provisions of clause 13 will apply.

Clause 13 said:

13. Consultative process

13.1 Consultation

Consultation means the full, meaningful and frank discussion of issues/proposals and the consideration of each party’s views, prior to any decision. Committees established for the purpose of implementing aspects of this agreement are part of the consultative process.

At [16] North J set out the changes that the MFB proposed to make. These were:

• Changes to the cut off mark required to pass the VST [the Vocational Selection Test] …
• The introduction of a cap on the numbers of applications to the recruit selection process, together with a specific quota of men and women to be considered for selection as recruit firefighters (the “Quota”)…
• The removal of the Mechanical Reasoning component of the VST…
• The removal of the Order of Merit…; and
• Removal of the three strikes policy ….

The ‘Order of merit’ was the process where the MFB ranked candidates and made offers to candidates according to their position in the Order.  A person’s position would change as candidates were added to or removed from the list.  The ‘three strikes policy’ was ‘a policy whereby the MFB gave each candidate three opportunities to pass each stage of the recruit selection process’.

The decisions to make these changes were made between July and November 2015 ([16].  At [19]-[20] the parties agreed that:

On or about 25 January 2016, the MFB announced on its website, inter alia, that “the Recruit Firefighter Selection Process is currently under review”.

The MFB had not informed the UFU of the Review prior to the time it was announced on the MFB’s website.

The UFU gave notice of an industrial dispute on the basis that there had been no consultation.  The MFB argued that there had been no breach as the EA did not apply to prospective employees (see [22]).

The matter was listed before the Fair Work Commission. On 29 January 2016, the MFB agreed to make no changes prior to a conference to be held at the Fair Work Commission to resolve the issues.   At [24]-[28] it is said:

On 1 February 2016, the MFB published on its website:

(a)          an invitation for 700 new applications for the MFB Selection Process, with a quota of 350 male and 350 female applicants.

(b)          information about the VST for the upcoming MFB Selection Process. That information did not include reference to the mechanical reasoning test, and stated that the cut off score for the VST would be 45.

By 2 February 2016, the MFB had received 350 applications from male applicants and closed applications to further male applicants. By the time applications closed at 5.00pm on 2 March 2016, 290 women had applied to participate in the MFB Selection Process. In 2013, 1310 applicants applied to participate in the MFB Selection Process, comprising 1206 men and 104 women.

A Consultative Committee meeting was held on 3 February 2016.  The MFB did not place the issue of the Changes on the agenda at that meeting. Consultative Committee meetings were also held on 4 February 2015, 4 March 2015, 1 April 2015, 6 May 2015, 3 June 2015, 1 July 2015, 5 July 2015, 2 September 2015, 7 October 2015, 4 November 2015, 2 December 2015 and 12 January 2016. The MFB did not place the issue of the Changes on the agenda at those meetings.

On 4 February 2016, the solicitors for the UFU sought an undertaking from the MFB that it would abide by the requirement in clause 19.4 of the Agreement that “the status quo must apply in accordance with the existing situation or practice that existed immediately prior to the subject matter of the grievance or dispute occurring”. On 5 February 2016, the MFB refused to provide such an undertaking.

As at 5 February 2016 the MFB had not consulted with the UFU in accordance with the procedure in clause 13 of the Agreement in relation to the Changes.

There were various dispute resolution processes and meetings to resolve the issues between the parties.   It appears that the outcome of the process was (at [49]-[52]):

In February 2016, the MFB implemented quotas on applications to participate in the MFB Selection Process (350 male and 350 female).

The VST administered by ACER on 12 and 13 March 2016 included the mechanical reasoning test, following a change in position by the MFB as a result of the discussions before Commissioner Roe.

ACER marked the VST, on the instructions of the MFB, using both the cut off score of 50 on the old scale and the cut off score of 45 on the new scale.

Candidates who passed the VST on either the cut off score of 50 on the old scale, or the cut off score of 45 on the new scale, proceeded to the next stage of the selection process. The MFB advised candidates who had met only one of the cut off scores of 50 on the old scale or 45 on the new scale that they had provisionally passed the VST, subject to the outcome of this proceeding. Of this group, two candidates passed the remaining stages of the selection process but none were selected for the July 2016 recruit training course.

The issue before the Court was not whether the changes to the recruitment process were good, bad or indifferent, but the failure to consult with the UFU as the MFB had agreed to do.  The MFB did agree that they had failed to cmply with the EA and the parties agreed that the appropriate remedy was the penalty of $25 000 to be paid to the UFU.  North J said (at [58]-[60] but incorrectly numbered in the judgment as [8]-[10]):

The aim of the imposition of the civil penalty is to act as a deterrent to the respondent and to other parties to enterprise agreements to fail to adhere to the terms of those agreements.  There is no evidence that the respondent has contravened the Act on any other occasion.

In setting the penalty, it is also significant that, except as to the gender quota issue, any harm which might otherwise have resulted from the respondent’s failure to consult was limited. The applicant was prompt to commence proceedings and obtained orders to prevent the respondent taking further action unless it complied with the provisions of the enterprise agreement.

The proposed penalty is about 50 per cent of the maximum penalty available. The agreement of the parties properly reflects the seriousness of the conduct of the respondent. The amount proposed is appropriate in all the circumstances. For those reasons, I will make the orders which the parties seek by consent.

Conclusion

Parties to an enterprise agreement are expected to meet the terms of their agreement.  See also Industrial Relations and asking the CFA to stick to its bargain (January 26, 2015).

Today’s question comes from a NSW volunteer firefighter who responded to a fire in rural local government area.   The Incident Controller (IC) requested a bulldozer and grader to ‘cut fire breaks so we could do backburning during the night to help contain the fire’.  The request was made at 3pm but the response was ‘The bulldozer would not be there until around 8.30 the next day and the grader would not be there until 11 am the next day.’  My correspondent says that he is aware that the relevant council, as well as neighbouring councils, had graders and bulldozers but these were not made available.  So, asks my correspondent:

What obligations do local governments have to supply heavy plant to the RFS to suppress bushfires?  Having read the Rural Fires Act and the Local Government Act I must say the law seems wishy washy on the obligations of local government when they clearly have the resources to help… This leads me to my other question; Do you think that the Rural Fires Act and/or the Local Government Act needs beefing up to put more onus on local government to assist the RFS?

There is no legal obligation on local government to supply heavy plant or other assistance to the RFS.

The Local Government Act 1993 (NSW) makes no specific mention of emergency management.  Although there are no specific emergency management provisions, the Act does say that ‘A council has the functions conferred or imposed on it by or under any other Act or law’ (Local Government Act 1993 (NSW) s 22). The table to s 22 lists some Acts that confer functions on local governments.  The table to s 22 identifies the following relevant Acts and functions:

• The Fire Brigades Act 1989 (NSW) imposes an obligation on councils to pay contributions toward the costs of maintaining the fire brigades.
• The Rural Fires Act 1997 (NSW) authorises council to issue of permits to light fires during bush fire danger periods and to furnish information to the Rural Fire Service Advisory Council and its Co-ordinating Committee.
• The State Emergency Service Act 1989 (NSW) requires council to recommend a person for appointment as the local SES controller; and
• The State Emergency and Rescue Management Act 1989 (NSW) requires a council to prepare for emergencies.

There is no power in the Rural Fires Act 19997 (NSW) to allow the RFS to commandeer assets or demand cooperation from a local government authority (or from anyone).

That there is no legal obligation under either the Local Government Act 1993 (NSW) or the Rural Fires Act 19997 (NSW) is not, however, the end of the matter.  The State Emergency and Rescue Management Act 1989 (NSW) s 28 establishes Local Emergency Management Committees (or LEMC).  The LEMC is made up of ‘the General Manager of the council of the relevant local government area, who is to be the Chairperson of the Committee’ as well as representatives from all agencies involved in emergency management within the council’s area including the Rural Fire Service.

The LEMC is required to prepare and review local emergency management plans. The Committee may (but is not required to; s 29(1A)(e)): ‘facilitate local level emergency management capability through inter-agency co-ordination, co-operation and information sharing arrangements’.

The conclusion is that arrangements for providing council plant to a request from the RFS (or SES, or F&RNSW or NSW Ambulance) is a matter that should be part of the local emergency management plan. What equipment is available, on what terms, when and how they are requested will vary from local government to local government hence it makes sense not to have prescriptive arrangements in the legislation.  Consistent with an approach of developing resilient communities (see Council of Australian Governments, National Strategy for Disaster Resilience (Commonwealth of Australia, 2011)) structures are in place to establish local arrangements.  It is those arrangements that will determine local responsibilities.

Do the Rural Fires Act and/or the Local Government Act need beefing up to put more onus on local government to assist the RFS?  That is not for me to say.  The allocation of responsibilities is a matter of policy, determined by government taking into account various issues.  Certainly the difference between councils and risks would suggest that mandating obligations at state level is unlikely to be effective and would be inconsistent with the notion that emergency response starts and should remain local.

Conclusion

My correspondent asked ‘What obligations do local governments have to supply heavy plant to the RFS to suppress bushfires?’ He referred to the Local Government Act 1993 (NSW) and the Rural Fires Act 19997 (NSW) and found no obligation. That is correct.  The obligation (if there is one) will be found in the Local, Regional and ultimately State Emergency Management Plans.  The first point to look would be the Local Emergency Management Plan for the local government area in which the fire occurred.

A member of a Queensland Rural Fire Brigade says:

… the volunteer members of the Brigade which is set up under the Fire and Emergency Services Act 1990 are members of an unincorporated association that conduct business as well as “fire and emergency” duties.

On Thursday, I was informed by a Regional Manager RFS that if an action was brought against my brigade or one of our members then as an unincorporated association, I and all members of the brigade would have to defend ourselves individually and QFES does not cover us.

His words were that I would lose my house and everything I own defending myself.

Also I was informed the QFES Act nor the Civil Liabilities Act would not protect me or a member from having claims against us and hence the cost of defence of such claims.

This is getting out of hand.

My regional manager specifically stated to me that as a Brigade Member I could lose everything in defence. Your comments would be appreciated; my only thought is that, similar to Queensland Justices of the Peace, an individual member might need professional indemnity insurance to cover these eventualities?

A question that springs to mind, but which I won’t attempt to answer, is why on earth would a JP need professional indemnity insurance? What on earth could a JP do that would expose them to liability? Those questions are rhetorical, I’m not really asking for answers nor am I going to try and provide any.

I have previously discussed what I think is the legal position of Queensland Rural Fire Brigades – see  Status of Queensland Rural Fire Brigades (September 10, 2014) and Revisiting the status of volunteer rural fire brigades in Queensland (March 9, 2018).

The problem as I see it as that the term Queensland Fire and Emergency Service is used in two contexts.  One it described the fire and emergency services that operate fire appliances and respond to emergencies, the service constituted by the Fire and Emergency Services Act 1990 (Qld) s 8 and refered to on the QFES website as “Fire and Rescue”.  QFES is also the name of the relevant government department.  As the QFES website says “Queensland Fire and Emergency Services (QFES) was established as a department on 1 November 2013 under the Public Service Act 2008. QFES reports to the Minister for Fire and Emergency Services”.

So QFES is the department, under the management of the Commissioner and answerable to the Minister (see Administrative Arrangements Order (No. 1) 2018 (Qld), p. 33) as well as the operational fire and rescue service. It’s true that members of the Rural Fire Brigades are not members of the Queensland Fire and Emergency Service (Fire and Emergency Services Act 1990 (Qld) s 8).  They do however fall under the management of the Department that is Queensland Fire and Emergency Services.  That is the Department name, and the Act title refer to ‘services’ (plural) whereas the Queensland fire and Emergency Service is a singular service, it is one of the three services that make up Queensland Fire and Emergency Services (the other two being the SES and the Rural Fire Brigades).

The Fire and Emergency Services Act provides for the formation of rural fire brigades but they are not a separate legal entity.   As they are not a legal entity a brigade cannot enter into contracts or sue or be sued in its own name.  I note also that the QFES Is also not a legal entity but no-one is going to sue members of the QFES.  Fire fighters are employed by the Commissioner (s 25), the Commissioner is the head of the government department and liability if any will belong to Queensland (see Queensland Fire and Rescue not liable after factory fire (October 3, 2014) and although the title of the post refers to Queensland Fire and Rescue, the defendant was the State of Queensland).

Just because a brigade does not have a separate legal existence, it does not follow that “if an action was brought against my brigade or one of our members then as an unincorporated association, I and all members of the brigade would have to defend ourselves individually and QFES does not cover us.”  First it’s not clear what sort of ‘action’ my correspondent has in mind.  It is, in my view, clear that the Rural Fire Brigades are an operational part of the department Queensland Fire and Emergency Services. Any action against the department would be brought against the State of Queensland.  Note too that Queensland Ambulance is not a separate legal entity but that did not stop the State of Queensland being the relevant defendant when a legal action was brought against the Ambulance Service – see State of Queensland STILL liable for paramedic negligence (October 25, 2017).  That liability was in part due to the fact that by virtue that the State of Queensland was the employer of Queensland ambulance officers.  The State of Queensland is not the employer of volunteer fire fighters (obviously) but it exercise such control over the operation of rural fire brigades and their officers that I have no doubt vicarious liability would also extend to protect any fire fighters (Hollis v Vabu [2001] HCA 44; Barclays Bank PLC v Various Claimants [2018] EWCA Civ 1670).

I fail to see why ‘the QFES Act nor the Civil Liabilities Act would not protect’ a firefighter.  Section 153B of the Fire and Emergency Services Act 1990 (Qld) says:

No liability attaches to any person for an act done, or omission made, honestly and without negligence under chapter 3.

The formation, function and powers of Rural Fire Brigades are all provided for in Chapter 3, Part 7 of the Act.

The Civil Liability Act 2003 (Qld) s 39 says:

A volunteer does not incur any personal civil liability in relation to any act or omission done or made by the volunteer in good faith when doing community work—

(a) organised by a community organisation; or

(b) as an office holder of a community organisation.

I have no doubt that the Queensland Fire and Emergency Services (ie the government department) is a community organisation (s 34) and I can’t see any reason why a volunteer with a rural fire brigade wouldn’t enjoy the protection offered by this section.

I note the advice that ‘QFES does not cover us’ is inconsistent with the advice of Deputy Commissioner Mike Wassing, Chief Officer Rural Fire Service and Chief Officer of the State Emergency Service (Letter from Deputy Commissioner Mike Wassing to all Rural Fire Service Volunteers, 11 May 2018, available at https://www.rfbaq.org/legalstatus).

Finally remember that people sue other people and entities for money.  No-one is going to sue the members of a fire brigade as it would be a pointless waste of time.  They want to sue the State of Queensland because the State of Queensland can afford it.

Being unincorporated is not unique to Queensland Rural Fire Brigades.  No government agency wants its fire brigades to be separate legal entities as that would cause untold confusion.  For related discussions see:

• Should a NSW RFS brigade retain its incorporated status? (February 16, 2018);
• Is an incorporated bush fire brigade a ‘bush fire brigade’ for the purposes of the Bush Fires Act 1954 (WA)? (May 5, 2017);
• RFS brigades entering into a contract (March 1, 2015);
• How autonomous are NSW Rural Fire Brigades? (February 25, 2015);
• Constitutions for NSW RFS brigades (May 21, 2014); and
• A further review of the Malone Inquiry into the Queensland Rural Fire Brigades (June 11, 2013).

My comments

I was asked to provide my comments in particular on the advice that:

… if an action was brought against my brigade or one of our members then as an unincorporated association, I and all members of the brigade would have to defend ourselves individually and QFES does not cover us.

…[neither] the QFES Act nor the Civil Liabilities Act would not protect me or a member from having claims against us and hence the cost of defence of such claims.

My comments are that that advice is rubbish, ill-informed and ridiculous (and I’m being polite! People who aren’t lawyers should stop giving legal advice and people should stop taking legal advice from people who aren’t lawyers, and yes, I’m assuming the Regional Manager is not a lawyer).   As for the suggestion that ‘an individual member might need professional indemnity insurance’ I can’t believe you’d be able to get that sort of insurance, not because the risk is too high but it’s so low who would bother to offer it?

The rural fire brigades are not a legal entity, they are however part of the Queensland Fire and Emergency Services ie the government department that operates Queensland’s fire and emergency services even if they are not part of the operational service that is the Queensland Fire and Emergency Service.  Do see again Revisiting the status of volunteer rural fire brigades in Queensland (March 9, 2018).

I really can’t see the issue.

Today’s question come from a NSW paramedic who has received the booklet ‘Paramedics: Welcome to the National Scheme’ published by the Paramedicine Board in July 2018. On p. 3 it says (emphasis added):

Check if you need to register. Anyone who works as or will use the title ‘paramedic’ (including people in non-clinical roles) must register with the Board. Students, medics, volunteer ambulance officers and emergency medical technicians (EMTs) do not need to apply for registration.

My correspondent says:

Previously, I had understood that the title paramedic will be restricted to those who are registered, and you have made references to people who would “hold themselves out to be” paramedics.

Further, in your blog of 10 June you said, at least regarding WA, “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. ”

In other words, it all turned on the use of the term, not the actual position held or work being done.

However, the line from the Paramedicine Board’s booklet now suggests that the restriction applies not only to one who would call himself or herself a paramedic but to anyone who performs the role.

I can imagine there will be some Ambulance Officers – perhaps those close to retirement – who want neither the status nor the cost of registration, but would like to keep doing their job, even though they would not be called a Registered Paramedic.

Given the statement in the booklet, do you think it will be possible for someone to continue employment with NSW Ambulance in a frontline clinical position (currently called a paramedic) without being a Registered Paramedic?  In other words, is it possible for a non paramedic-registered employee to perform the same clinical duties as a paramedic without being understood to “work as a paramedic”?

If your previous advice remains correct that ambulance services can operate using staff other than paramedics, then is the wording of the booklet misleading?

In my view the wording of the booklet is misleading. The Health Practitioner Regulation National Law (‘the National Law’) appears as the Schedule to the Health Practitioner Regulation National Law Act 2009 (Qld). That law has been adopted in all Australian states and territories to create the national scheme.

The National Law operates by the protection of title, so only a registered health practitioner can use the titles reserved for that profession (ss 113-120). The National Law has very little to say on scope of practice. It does say that there are some practices that only relevantly registered health practitioners may engage in (see s 121 ‘Restricted dental acts’; s 122 ‘Restriction on prescription of optical appliances’ and s 123 ‘Restriction on spinal manipulation’).  None of those are directly relevant to paramedicine.

There is no law that says what it is that paramedics do that distinguishes them from other people or other registered health professionals. Remember that ‘back in the day’ the term paramedic was reserved for intensive care paramedics. NSW Ambulance officers (at least) were given the title ‘paramedic’ at the stroke of an administrative pen (see NSW Ambulance ‘in the news’, 3 December 2007).

The Paramedicine Board is required ‘to decide the requirements for registration or endorsement of registration in the health profession…’ (National Law s 35(1)).  The Board could determine that the appropriate qualification for registration as a paramedic is a first aid certificate.  No doubt it will not do that because there is a common understanding that paramedics are something more than first aiders, but at this stage ‘paramedic’ remains undefined. With registration the term will mean ‘a person registered as a paramedic’ but that won’t add much context to distinguish between a paramedic and anyone else. It certainly means that today there is no clear indication of whether or not ‘medics, volunteer ambulance officers and emergency medical technicians (EMTs)’ are or could be paramedics (see Are St John volunteers paramedics? Should they be? (July 19, 2012)).

We can see that as the Board has endorsed some qualifications for admission – see http://www.paramedicineboard.gov.au/Education/Qualifications.aspx#approved-qualifications.  So we can begin to understand what paramedics do by reference to the curricula of those approved qualifications. What it does mean is that if you do not hold one of those qualifications it is not that, in the future, you don’t need to apply for registration, it’s that you won’t be accepted for registration.  We will begin to understand who is a paramedic by seeing who is not a paramedic.

The new rules also provide for grandfathering.  One way to get registered, during the transitional phase is for an applicant to demonstrate that he or she “has practised paramedicine during the 10 years before the participation day for a consecutive period of five years or for any periods which together amount to five years and satisfies the Board that they are competent to practise paramedicine.’  But what does practice paramedicine mean?  Again that’s not defined. But what the Board determines is ‘competent to practise paramedicine’ will give substance to the definition. As the registration processes continues it is the Board that will define what practice constitutes practice as a paramedic and therefore what essential skills paramedics, as opposed to first aiders and emergency medical technicians (whatever that might mean) have.

If it’s only protection of title, what’s the point?

The point and benefit of registration will come with time.  At the moment anyone can call themselves a paramedic and so anyone, including medics, volunteer ambulance officers and emergency medical technicians, could apply for registration as a paramedic.  The Paramedicine Board will accept some applications and reject others.  Provided they do that on a principled basis that will begin to define what or who is a paramedic – and that is key.

At the moment who is a paramedic is up to whoever wants to use the title.  With registration it is the profession, via the Paramedicine Board, that will determine who gets to join the club of ‘paramedics’.  If they do that with integrity and build and maintain public confidence in the paramedic profession, other regulators will follow. For example under current law paramedics can carry and use drugs because they are endorsed by their employer.  Under the Poisons and Therapeutic Goods Regulation 2008 (NSW), Appendix C, cl 7:

A person:

(a) who is employed in the Ambulance Service of NSW as an  ambulance  officer …, and

(b) who is approved for the time being by the Director-General for the purposes of this clause,

is authorised to possess and use any Schedule 2, 3 or 4 substance that is approved by the Director-General…

In the future health departments may decide to provide that ‘A paramedic’ can carry scheduled drugs ‘in the lawful practice of his or her profession’.  That is the sort of language that is applied to medical practitioners (see Poisons and Therapeutic Goods Act 1966 (NSW) s 10) so a medical practitioner can carry scheduled drugs by virtue of their registration. That is not the case with paramedics, but it may be one day. If the Board throws the net too wide on who can be registered as a paramedic then the confidence of the government and the public may not allow that sort of development.

On the question of practice as a paramedic (as currently understood) when registration comes into place people can still practice their skills.  An ambulance service could still employ people and still authorise them to practise as they do now.  In the long term that may not be defensible and the community will say they want paramedics in their ambulances in the same way they want doctors in the hospital emergency room and nurses in nursing homes.  As the status of the profession increases it will become harder for employer to engage non paramedics, even if they have the same training and skills, to do the work that becomes defined as paramedic work.

Registration is a first step in the developing professionalisation project.  It is up to the Paramedicine Board to manage that project to create a unique profession of paramedicine. For more detailed arguments see Ruth Townsend, The Role of Law in the Professionalisation of Paramedicine in Australia, Unpublished PhD thesis, ANU, 2018.

Conclusion

When paramedic registration comes into place only a registered paramedic can use the title ‘paramedic’.  Anyone who wants to use that title needs to register with the Paramedicine Board.  Because the National Law does not define scope of practice people who are not registered will still be able to practice as they do now, but they won’t be able to use the title ‘Paramedic’.

Anyone who currently works, or think they work as a paramedic could apply for registration and if granted they will be able to use the title paramedic. Anyone who currently uses the title ‘paramedic’ will need to apply for registration if they want to continue to use that title.

… Ambulance Officers – perhaps those close to retirement – who want neither the status nor the cost of registration, but would like to keep doing their job, even though they would not be called a Registered Paramedic

Don’t have to apply for registration; but whether their employer will continue to employ them is a matter for that service. No doubt there are many industrial issues to be worked through during the transition phase – see Paramedic registration and changing the terms of employment (February 16, 2018).

If the advice from the Board is that ‘after registration you want to continue to practice in a way that is understood to be paramedic practice then you need to register even if you are not using the title’ then that is incorrect.

That’s the title of an article that I wrote with my colleague Dr Ruth Townsend and which appears in the current issue of Response, the official journal of Paramedics Australasia.

Our argument is NOT that gaol terms for people who assault paramedics are not, and will not, be called for. Neither are we arguing that it is ok to intentionally assault paramedics. It’s not; and that’s why it’s illegal, as it should be.

Fundamentally our argument is that mandatory gaol terms will not decrease the risk of, or actual event of occupational violence directed toward paramedics and they may have adverse effects for paramedics. If we’re right we predict no significant downturn in violence due to the sort of changes proposed in Victoria, but we do predict more cases will be defended, more paramedics will have to give evidence in court and the conduct of the paramedics will be subject to closer scrutiny. Community trust in paramedicine may be diminished. These potential costs are achieved for the benefit of making paramedics think the government has done something for them; but it hasn’t, it’s only done something for itself. By offering mandatory sentencing the government is offering a placebo, a remedy ‘to humour or placate’ those calling for something to be done. No-one will hold the government to account when the policy fails to produce results, but the government can hope to ride a vote winning wave. The only winner from introducing mandatory sentences is the electoral appeal of the government. It’s a placebo – a procedure prescribed for the psychological benefit but that won’t address the cause of offending or reduce the risk of future offending.

You can read the full text of the paper (which includes references and some longer discussion that had to be deleted from the published version due to space restrictions) here.

 

On 30 July 2018, the United Kingdom Supreme Court handed down its decision in An NHS Trust and others v Y [2018] UKSC 46 (and thank you to Bill Madden’s Medical + health law blog for bringing this case to my attention). (The UK Supreme Court is the ultimate court of appeal in the UK so it sits in the court hierarchy where the Australian High Court sits in the Australian legal system).

The case involved a decision to withdraw clinically assisted nutrition and hydration from a patient suffering a prolonged disorder of consciousness and whether or not it was necessary, in all cases, to seek court approval before the nutrition and hydration or other life sustaining treatment was withdrawn. Given the nature of the treatment the case has no direct application to paramedics, and given it is an English decision and based on the Mental Capacity Act 2005 (UK) and the European Convention on Human Rights it has little direct application in Australia.

Having said that the Court did look at the common law pre the 2005 Act and the common law between Australia and the UK is at least linked, if not ‘common’. In light of my post More on a patient’s apparent refusal of consent – NSW (July 28, 2018) it is useful to draw something from this decision of the UK Supreme Court. At [21] Lady Black (with whom Lady Hale, Lord Mance, Lord Wilson and Lord Hodge agreed) identified:

… the following three points of importance that are found in the speeches [in Airedale NHS Trust v Bland [1992] UKHL 5] and have relevance not only to the decision in the Bland case, but also to subsequent decisions, including the present one:

i) As has already been seen from In re F (Mental Patient: Sterilisation) (supra), it is unlawful to administer medical treatment to an adult who is conscious and of sound mind, without his consent; to do so is both a tort and the crime of battery. Such an adult is at liberty to decline treatment even if that will result in his death, and the same applies where a person, in anticipation of entering into a condition such as PVS, has given clear instructions that in such an event he is not to be given medical care, including artificial feeding, designed to keep him alive.

ii) Where a person, due to accident or some other cause, becomes unconscious and thus unable to give or withhold consent, it is lawful for doctors to give such treatment as, in their informed opinion, is in the best interests of the patient. Where it is no longer in the best interests of the patient to provide treatment, it may, and ultimately should, be discontinued (see, for example, p 867 of Lord Goff’s speech, with which Lord Keith of Kinkel and Lord Lowry agreed).

iii) The argument that artificial feeding (in that case by nasogastric tube) was not medical treatment at all, but indistinguishable from normal feeding, was rejected. Regard had to be had to the whole regime which was keeping the patient alive, and in any event a medical technique was involved in the feeding.

(Airedale NHS Trust v Bland was a case arising from the 1989 Hillsborough football disaster. Anthony Bland was left in a persistent vegetative state and doctors sought to remove life sustaining treatment. Legal advice said they may be subject to criminal prosecution, so they sought advice and approval from the courts.  For posts on this blog making refernce to Bland’s case see https://emergencylaw.wordpress.com/?s=airedale.  I also note that I wrote my Master of Laws thesis – Euthanasia and Medical-end-of-life decisions in Australia (University of Newcastle, Australia) – on the application of Airedale’s case in Australian law.)

Point (iii) from the list above will have little application to paramedics but (i) and (ii) are relevant and can be summarised, relevantly, as:

• it is unlawful to administer medical treatment to an adult who is conscious and of sound mind, without his [or her] consent;
• Where a person, due to accident or some other cause, becomes … unable to give or withhold consent, it is lawful … to give such treatment as …is in the best interests of the patient.

The Mental Capacity Act 2005 (UK) was passed to fill gaps in the UK law about who could make decisions on behalf of people who were not competent to do so.  In a case dealing with provisions of that Act (Aintree University Hospitals NHS Foundation Trust v James [2013] UKSC 67).  In the UK Supreme Court:

Baroness Hale gave a judgment with which the other justices all agreed. She restated, now with reference to the provisions of the MCA 2005, the position as to invasive medical treatment of a patient. Although going over ground covered in the pre-MCA 2005 cases, it is worth setting out the relevant passages in full, since they establish the up-to-date legal context for the questions that arise in the present appeal. She said:

“19.     … Generally it is the patient’s consent which makes invasive medical treatment lawful. It is not lawful to treat a patient who has capacity and refuses that treatment. Nor is it lawful to treat a patient who lacks capacity if he has made a valid and applicable advance decision to refuse it: see the 2005 Act, sections 24 to 26. Nor is it lawful to treat such a patient if he has granted a lasting power of attorney (under section 10) or the court has appointed a deputy (under section 16) with the power to give or withhold consent to that treatment and that consent is withheld; but an attorney only has power to give or withhold consent to the carrying out or continuation of life- sustaining treatment if the instrument expressly so provides (section 11(8)) and a deputy cannot refuse consent to such treatment: section 20(5)…

Baroness Hale underlined further, in para 22, that the focus is on whether it is in the patient’s best interests to give the treatment, rather than whether it is in his best interests to withhold it or withdraw it. She continued:

“If the treatment is not in [the patient’s] best interests, the court will not be able to give its consent on his behalf and it will follow that it will be lawful to withhold or withdraw it. Indeed, it will follow that it will not be lawful to give it. It also follows that (provided of course that they have acted reasonably and without negligence) the clinical team will not be in breach of any duty towards the patient if they withhold or withdraw it.”

To the extent that these passages rely on the Mental Capacity Act 2005 (UK) they are not applicable in Australia, but they do give insight into relevant law.

First the basic requirements for the common law principle of necessity, as described by Lord Goff in In Re F [1990] 2 AC 1 are:

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

On this statement of principle, I wish to observe that officious intervention cannot be justified by the principle of necessity. So intervention cannot be … justified when it is contrary to the known wishes of the assisted person, to the extent that he is capable of rationally forming such a wish.

The common law, and the Mental Capacity Act 2005 (UK) provide that it is not ‘lawful to treat a patient who lacks capacity if he has made a valid and applicable advance decision to refuse it’. The common law in Australia as well as legislation such as the Medical Treatment Planning and Decisions Act 2016 (Vic), the Advance Care Directives Act 2013 (SA) is the same.  Treatment cannot be given where there is an informed prior refusal.

Legislation in all states and territories also provides for people to appointed to be able to consent on behalf of an incompetent person. In my post More on a patient’s apparent refusal of consent – NSW (July 28, 2018) I discussed the power of the ‘person responsible’ to make decisions and that was in the context of a person who ‘on any other day, displays capacity & competency however today he or she has an infection/affected by drugs/stroke that is causing acute confusion. Today they cannot display capacity or competency…’ This is an emergency condition and the person responsible will be unable to make an informed decision about treatment.  At the point that the paramedics are on scene the patient’s condition could not be properly identified or prognosis made nor could the steps set out in the Act to obtain the consent of the person responsible be followed.  Further, as noted in that post, it is my view that the Guardianship Act 1997 (NSW) is not intended to apply to care provided by paramedics but care provided by medical practitioners. It anticipates a situation such as that in An NHS Trust and others v Y where there has been time to assess the patient, form a diagnosis and prognosis and consider all the various treatment options when determining what treatment will, and will not be, in the person’s best interests.

Under the Guardianship Act 1997 (NSW) a person can appoint an enduring guardian and one of the guardian’s functions is to ‘decide the health care that the appointor is to receive’ (s 6E). The guardian can consent to health care (s 36).  There is no express power to refuse consent but it must be implied, if one can consent one can also refuse consent. A guardian who has been authorised by the NSW Civil and Administrative Tribunal to do so may ‘override the patient’s objection to the carrying out on the patient of major or minor treatment’ (s 46A).

The situation in that earlier discussion (More on a patient’s apparent refusal of consent – NSW (July 28, 2018)) would be different if the person had been under ongoing care for a particular condition and they were now at the end point of that process and either they had made a valid advance care directive (relying on either the common law or statutory provisions in their state or territory) or the ‘person responsible’ was an appointed guardian who in consultation with the treating medical team had made an informed decision for example that the patient was not for resuscitation. In that case the guardian is not so much refusing consent as communicating to paramedics that relevant medical decisions have been made.  This in turn will communicate that treatment which may otherwise be thought to be in the best interests of the patient are not in fact in the best interests of this patient.

Conclusion

The decision in An NHS Trust and others v Y [2018] UKSC 46 is a case from the United Kingdom and therefore not directly relevant in Australia.  Further it was about medical care not emergency care by paramedics so again it is of limited precedent value.  It does however serve to reinforce to fundamental principles of the common law, law that I would suggest is common to both the United Kingdom and Australia and that is:

• it is unlawful to administer medical treatment to an adult who is conscious and of sound mind, without his [or her] consent;
• Where a person, due to accident or some other cause, becomes … unable to give or withhold consent, it is lawful … to give such treatment as …is in the best interests of the patient.

With respect to third parties giving directions to paramedics who are responding to an emergency call they are not in a position to refuse consent on behalf of their loved ones.  They cannot be informed or know of the person’s condition or prognosis and cannot give (or withhold) consent as required by the Act.  That was the basis of my conclusion in More on a patient’s apparent refusal of consent – NSW (July 28, 2018).

The situation is different if the person has been appointed, either by the Tribunal or by the patient as an enduring guardian and in consultation with the treating medical team a decision has been made to withhold certain treatment.  Whether we see that as the person refusing consent on behalf of the patient or communicating an earlier refusal is irrelevant. If that prior decision has been made eg that the patient is not for resuscitation, then it should be honoured.