A correspondent writes:

I am a paramedic working for the Queensland Ambulance Service (QAS). When we attend a patient we are required to complete an electronic ambulance report form (aERF). This document contains patient details, our assessment findings, and subsequent management including medication administered and interventions performed. It includes past medical history, current medications, and importantly allergies.

The transition of a patient from our care, to that of the hospital includes the following the steps: providing verbal handover at triage, verbal bedside handover, then delivery of our printed records to the bedside. The electronic version is stored and may be downloaded for clinical governance purposes. This documentation may also be requested by external organisations including the police, the Office of the Coroner, OHO, and the patient.

Due to “operational demands” it has become an increasing occurrence that paramedics are being dispatched to other cases prior to their immediate completion of the eARF. In regions of high workload it may be many hours, and several other cases, before this documentation is completed. This means hospitals do not receive immediate, and sometimes never, documentation relating to the prior care of the patient. It also means that there are likely to be inaccuracies and potential omissions from the documentation.

As treating paramedics, what are our legal obligations when it comes to completing and providing timely documentation on a patient we have verbally handed over to hospital staff?  Without considering internal QAS policy on this matter, would a paramedic have a legal stance to refuse an order to attend a new case based on their belief they needed to complete important elements of their care of their current patient (such as medications administered and allergies)?

My concerns come from the findings of Coroner David O’Connell in the inquest into the death of Marcia Joyce Loveday (28 October 2013). The coroner seems to indicate his trust on the attending paramedic’s word based on their eARF completed prior to the paramedic’s knowledge a clinical incident had occurred. If we provide a verbal handover it seems we have no supporting evidence unless we also provide timely paperwork.

Without going into specifics, I am also aware of a situation where a hospital in our region placed a high degree of blame onto not identifying a rupturing Aortic Aneurysm on what they claimed was an insufficient verbal handover from the treating paramedic. My understanding is the paramedic’s documentation was used to support their version of events.

I appreciate if you are able to provide some clarity on this. I am concerned that operational needs or KPI’s, are overtaking the reason for our existence of providing a high standard of clinical care.

The Inquest into the death of Marcia Joy Loveday was held on 9-10 September 2013. The coroner’s findings were handed down on 28 October 2013.   Mrs Loveday was 74 years old. She had an extensive history with the Bundaberg base hospital.   In July 2010 she was taken to Bundaberg hospital by ambulance.   There she was given a penicillin injection even though she was allergic to penicillin. Her allergy was noted in the hospital records and she wore a medic-alert bracelet that also recorded her allergy (see ‘Ignoring a medic-alert bracelet’ July 19, 2015)). According to the coroner it was ‘… unclear whether she died as a result of the alleged anaphylaxis or her underlying conditions which caused her to present to the hospital’ [3]. The coroner’s task was to

… determine how and what caused her to die.

Central to these issues are the questions of how Mrs Loveday’s known allergy to penicillin was not made known to, or enquired about by, medical personnel in the Accident & Emergency Department … ([4]-[5])

On the day Mrs Loveday was taken to hospital she had rung 000 complaining of breathing difficulties.   The ambulance officers completed their eARF and it was noted that Mrs Loveday was allergic to ‘Penicillin; >> CECLOR, MINOMYCIN, KEFLEX’ [20].   The Emergency Department Clinical Record recorded under allergies – ‘CECLOR, MINAMYCIN, KEFLEX. Significantly, there is no reference to penicillin in this document’ [29].

An issue arose as to whether or not the paramedics had communicated that Mrs Loveday was allergic to penicillin. The triage nurse said that if they had said that it would have been recorded. The paramedic responsible for the hand over said that she did say it during the oral handover.   The patient was ‘handed over’ at 10.15am. The eARF was finished at 10.52am and ‘included penicillin in the known allergies’ [32]. The coroner said (at [34] emphasis added):

After viewing the ambulance officer and the nurse when giving evidence, I have formed a view that I accept the evidence of the ambulance officer that she told RN Blunt of the allergy to penicillin. I do this because the ambulance officer presented as a person who gave very straightforward evidence, could recall what occurred, and completed the reference to penicillin in her electronic report at about 10:52am that morning before she left the hospital. Of significance is that when the ambulance officer completed the electronic report (essentially as a contemporaneous note), she had no knowledge that Mrs Loveday had suffered a reaction due to her penicillin allergy.

A digression to the rules of evidence

Generally an out of court statement, like an eARF recorded, cannot be used to prove the truth of what it says because it is ‘hearsay’; that is evidence that someone said something is true is not proof that it is true. They have to come to court to give direct evidence of what they saw or heard. There are however exceptions to the hearsay rule. One exception is for business records (Evidence Act 1977 (Qld) s 92).   Business records are admissible on the assumption that they are created in the course of the undertaking in order to record the truth. They would not help the business if they are not accurate so it may be assumed or inferred that they are. Accordingly if the record records that something happened, that is evidence that it did happen; and if there is no record where one would expect one, that is evidence that the thing did not happen.

A patient case sheet is completed for a variety of reasons (see ‘First aid patient records – who and what are they for?’ (January 31, 2015)). The most important reason, in this context, is to ensure continuity of care.   The records would be useless if not correct so one can infer that they are intended to accurately record what happens. If the eARF records some action then that is evidence that the action occurred.

Putting the issue of admissibility aside, where a person has made a contemporaneous note of events they can, when giving evidence, use that note to remind themselves of what happened.   Here the note cannot be given in evidence but it can be used to refresh the witnesses memory. How close in time the writing has to be to be ‘contemporaneous’ would depend on all the circumstances.

These rules are important. It may mean that a paramedic may not need to go to court to given evidence as to what they saw or did as the court could just rely on the patient record. If they are required to give evidence they can use the record to refresh their memory as to what happened which will be important given the delay between the event and the day in court.

None of that is really relevant to my correspondent’s question other than to show that the court places faith in documents produced by ‘an undertaking’ (which would include a health service – see Albrighton v Royal Prince Alfred Hospital [1979] 2 NSWLR 165) and particularly when the notes are ‘contemporaneous’.

Further, it shows that regardless of the issues for continuity of care, accurate records completed at the time may well work in the paramedics own best interests.  As the coroner found, a report completed at the time and before anyone knows there is an adverse event is likely to be accepted over someone’s recollection of what was said or done.

Back to the question

As treating paramedics, what are our legal obligations when it comes to completing and providing timely documentation on a patient we have verbally handed over to hospital staff?  Without considering internal QAS policy on this matter, would a paramedic have a legal stance to refuse an order to attend a new case based on their belief they needed to complete important elements of their care of their current patient (such as medications administered and allergies)?

Paramedics and all health professionals have to act reasonably and in their patient’s best interests.   Current debates around paramedic professionalism include questions of whether paramedics need to transport everyone and whether or not they can leave patients at a hospital. For discussion on these issues see:

• Transport everyone or act as a professional? A question for paramedics (May 6, 2013);
• Do paramedics have to transport everyone? (February 3, 2014); and
• Paramedics leaving patients in casualty (January 24, 2015).

The issue in all these cases is a risk assessment. As I said in Paramedics leaving patients in casualty (January 24, 2015):

The question is always about duty and what does one’s duty require. A paramedic owes a duty of care to the person in their care, the ambulance service may owe a duty of care to a person that then rings triple zero but individual paramedics do not. How the reasonable ambulance service responds to that call requires consideration of the resources available, no emergency service can be resourced to meet every contingency so there will be occasions where demand exceeds supply. What this means is that there is a certain amount of ‘first come first served’.   Where a person is being treated by a paramedic that paramedic has a duty to act in their interest. They cannot just leave them because other people are ringing for an ambulance. There is no way of knowing whether the next patient is in a worse, or better, condition than the patient already being treated.

Because of that I would suggest that a blanket rule – leave your patient after 45 minutes, could not be reasonable. But a rule that says ‘you can leave your patient at the hospital if there is no value in staying in order to reasonably free up resources for others’ would be fine.

I would think the same applies with respect to the eARF. To use an example for that earlier post:

If … the person fell during sport and has been transported as there is a question mark over whether they have sprained or fractured their ankle, then one might make a clinical decision that they could wait on the waiting room chairs as well as on the stretcher and they don’t need a paramedic to talk to them and bring them a cup of tea, when other patients who have made their own way to hospital do not get such a service. In that case it may be reasonable to put the patient on the chair, let the triage nurse know and go.

And if there was no significant treatment to record on the eARF there may be little risk in leaving it if the paramedics are being asked to clear for an urgent task. On the other hand, if the patient has a life threatening condition and has received extensive treatment, including drug treatment from the paramedics, then ensuring that is recorded and handed over with the patient to allow their ongoing care is critical.   As noted above the ambulance service may owe a duty to get to other 000 callers as soon as possible, but the individual paramedic has a duty to continue to care for the person who is in their care.   Driving off without completing the eARF may be a remiss as simply dropping the patient at the door of A&E and driving away.

From a lawyer’s perspective, and ‘[w]ithout considering internal QAS policy on this matter’ I would suggest a paramedic has not only a ‘legal stance to refuse an order to attend a new case based on their belief they needed to complete important elements of their care of their current patient (such as medications administered and allergies)’ but an obligation to do so. Failure to do so would be a failure to properly care for his or her patient.

If that causes a delay for some other patient that would be an issue for the ambulance service. If it has a duty, it is a duty to take reasonable steps to manage its resources to provide appropriate patient care and if it fails to do that then any liability would belong to the service, not to a paramedic that was providing care to a patient. (It should be noted however that a person who has to wait for an ambulance cannot sue either the service or the government on the basis that more resources should be diverted to ambulance services and away from some other government priority (Civil Liability Act 2003 (Qld) s 35). The issue will always be did the service make reasonable use of the resources it had, not that the service should have had more resources).

If the paramedic thinks they can safely leave the person without finishing the eARF then they could do that and complete it later. That however creates a further risk. Assume that there is an adverse event – if the record is not ‘contemporaneous’ it will have less value and if there is a disagreement as to what happened, a court is not going to put much faith in a record completed at the end of a shift when a paramedic has seen multiple patients and is likely to forget details of those earlier cases. In that case omissions from the record may also be used to infer that there were omissions in patient care.

What if paramedics are registered?

One of the benefits of paramedic registration would be that paramedics would owe professional duties to their patients and their profession. These duties are independent of the duties they owe their employer. If paramedics were registered they would be in a stronger position to argue that they are not able to ‘clear’ for the next job as they have an independent, professional duty to complete the care for their current patient which must include ensuring an appropriate transfer of care. Part of that transfer must include accurate and complete documentation so that the treating health team have a complete picture of the patient’s history and treatment prior to arriving in hospital.

Conclusion

Paramedics are, or should be, regarded as health professionals. Their duty is not just to taxi people to hospital or provide a service their employer can charge for. Their duty is to provide care for the people they are called to treat as part of the complete health care team. To ensure that others can continue to provide the care that they start, they need to communicate with the health care team what they observed and the treatment already provided. In some cases an oral handover may be sufficient, in others detailed records will be required. It would be my view that a paramedic has a duty not to clear for a job until the handover, including the paperwork is complete, and their employer has a duty to allow them time to complete the paperwork.

The Richard Dawkins Foundation for Reason and Science is reporting, via Facebook. a study that shows ‘CPR is depicted on television medical dramas as significantly more successful than it is in reality…’ (see https://www.facebook.com/RichardDawkinsFoundation?fref=nf).   There are many comments to this research including

1. That it is not ‘new’ because it has been well know for a long time that success rates from CPR are low; and
2. That they should not publish the data as it may discourage people from attempting CPR and even if success rates are low, they’re better than nothing.

The report actually relates to a study by the University of California reported in Science Daily which reports that the survival rate for people who receive CPR is about 37% with only a 13% long term survival rate. The research was not, however, about survival rates from CPR, but survival rates as depicted on TV. The researchers watched episodes of medical dramas from 2010 and 2011 and found that on TV, 70 of patients who received CPR survived. The research was not reporting on survival rates of CPR but how CPR is depicted on TV.

There can be no argument that data on the survival rate of CPR or other treatment should not be published for fear of discouraging people.   Whatever the survival rates are, they should be identified. The issue for the researchers was that they fear that people who have no exposure to CPR other than via TV will have artificial expectations of what to expect if they are ever called upon to perform it. This may lead to people stopping CPR too early as the patient hasn’t coughed and recovered as they do on TV, or they may feel they have done something wrong if the patient doesn’t recover.

That brings me to my point and why this post is on an law blog. I speak to first aiders, fire fighters and paramedics and the question often arises ‘can I be liable if I attempt CPR but there’s a poor outcome?’   The answer is ‘no’.  As explained often enough, an action in negligence requires:

1. A duty to act
2. Failure to act as a ‘reasonable person’ and
3. The failure causes the damage.

Putting aside the question of whether or not there is a duty to act, let’s assume a person with a first aid certificate attempts CPR perhaps with some poor consequences, fractured ribs and the patient dies.   Even if the family could show that the responder’s technique was less than text book perfect, so what?

They would also have to prove, on the balance of probabilities or, to put that another way, that it is more likely than not, that had the CPR been performed in a text book manner, the outcome would have been different. If the survival rate is 37% then it is more likely than not that even with text book perfect CPR, the patient would not have survived. Any failing in technique did not cause the person to die, it was whatever that caused their heart to stop.

One Facebook commentator said:

As a beach Lifeguard we are told they are dead if you have to do CPR so don’t get your hopes up. I have revived many and not revived 1. It is all about team work and doing your best. What could the do sue you? OH WAIT!

The implication of ‘OH WAIT!” is that they could sue you. Speaking from Australia I remind my readers no-one has been sued for doing CPR and if anyone tries to sue in those circumstances, they’re not going to win.

People being trained in CPR should be given information on success rates so :

• They actually feel confident to have a go, knowing that doing CPR is better than doing nothing; but
• They should not have false expectations that CPR will save their patient’s life.

First aiders and others should be reassured that if the patient dies it is not their fault:

• Less than ideal technique will not be the cause of the person’s death; and
• The fact that the person died is not evidence that the first aider did not perform CPR appropriately.

The importance of this study is not to do with CPR or survival rates, but the artificial expectations that TV may create. First aid instructors, paramedics and nurses need to keep in mind that people may have unrealistic expectations and that could lead to feelings of guilt in the first aider and, for the surviving relatives, feelings that their loved one has been poorly cared for.

As the study authors conclude:

“The findings from this study emphasize the need for improved physician-patient communication and discussions around advance care planning decisions, such as CPR,” said Jaclyn Portanova, Davis School Ph.D. in Gerontology student and first author of the study. “Without these discussions, patients may rely on misinformation from TV in their decision-making.”

The same is true for first aid instructors who should communicate the reality to their students so they, to, don’t ‘rely on misinformation from TV in their decision-making’ and in their emotional response to the outcome.

This complex question comes from a NSW RFS brigade.  Without access to detailed financial manuals and delegations this answer must be very general and, as anyone who reads to the end will see, I cannot come to a conclusive answer.   My correspondent tells me that he or she is:

…  a member of a volunteer NSW RFS brigade and we are having issues with the brigade spending money on certain items/activities out of our accounts.

One particular event coming up is a significant brigade anniversary. This event includes the anniversary dinner, internal award presentations at this dinner as well as the invitation of dignitaries such as the RFS Commissioner, Members of government, RFS Senior management and District Management.

This dinner has a fee payable per head. The fee or charge includes a three course meal, non-alcoholic drinks and Coffee/Tea only. It does NOT include any alcohol at all. However there is a bar available if members wish to purchase other drinks themselves out of their own pocket.

We have three monetary accounts:

1. One which is for profit made from a soft drink fridge and foods
2. DGR Acc of which donated monies, profit from raffles etc as well as payment for services rendered such as assisting in local events
3. Investment Acc which consist of DGR monies and other monies that has been invested in term deposits

With  our brigade anniversary coming up soon and would like to use monies from either the DGR or Investment Accounts to partially subsidise the tickets for the members and their partners (50% subsidy), fully subsidise tickets for dignitaries and Life Members of the brigade.

We have been told by word of mouth from brigade senior management that ‘The brigade cannot spend money on such activities as it is public monies’. We have been referred to RFS Service Standard 1.1.16 quoting in particular:

“2.3 A member of the Service may not, under any circumstances, accept or receive any personal remuneration or reward for, or in relation to, any service they provide as a volunteer member of the Service or which are provided by a brigade.”

Another member, who is also the brigade accounts auditor (yearly audit) also refers to public monies not being able to be spent on social functions. However does not provide points of reference or a source further than above. Several of us had done some homework although only utilising the RFS Service Standards of which we found that two of these apply; SS 8.1.3 Ceremonies and Events (Issue date 13 June 2012)

1.2 Ceremonial events strengthen and develop a healthy service culture for members and their families. maintaining the correct ceremonial protocols and procedures sets a standard of respect, pride and acknowledgement necessary each time NSW RFS personnel come together.

2.1 A Ceremony or event may include, but is not limited to any of the following;

(b) Presentation of internally or externally awarded medals to service personnel

(c) Brigade Anniversaries or similar celebratory/appreciation events

(g) Any event where the Commissioner or a member of Parliament is either invited to attend or hosts.

So by our understanding this Anniversary dinner satisfies at least three of the points listed in the whole SS 8.1.3 as a Ceremony or Event listed by the RFS and therefore if it is classified as such would then become a part of an “associated” fire or emergency service activity.

SS 2.1.14 is Management of DGR …………

3.6          Tax legislation provides that tax deductible donations received by brigades can only be used in support of activities that are ASSOCIATED with the brigade’s volunteer-based fire and emergency services activities.

Our undertaking of this SS is that because it states “used in support of activities that are ASSOCIATED with the brigade’s volunteer-based fire and emergency services activities” and also because of the SS I have listed above that this anniversary dinner actually qualifies the brigade to spend DGR monies for such an event.

I would like to reiterate that:

• There will be no alcohol provided by the brigade or its accounts
• This Anniversary Dinner is an official brigade function as per the relevant SS

We would appreciate your professional opinion at your earliest convenience.

Service Standard 1.1.16 is headed ‘Fundraising Activities (Provision of Goods and Services)’. Paragraph [1.2] says:

This Service Standard applies to services that may be provided to a third party in the context of brigade fund raising activities.

It goes onto say (at [2.3]):

A member of the Service may not, under any circumstances, accept or receive any personal remuneration or reward for, or in relation to, any service they provide as a volunteer member of the Service or which are provided by a brigade.

In context it appears to me that the Service Standard is referring to a situation where a brigade may, for example, set up at a fete to make the fete more attractive for local children.  The fete organisers may, in return, give a donation to the brigade. That money must go to the brigade but not to the members who are there with the brigade’s appliance.  It is not applicable in this context as this is not a fund raising activity (though it is a fund expending activity).

Service Standard 2.1.14 refers to ‘Management of Deductible Gift Recipient Status for NSW RFS Brigades’.   Rural fire brigades can receive gifts that are tax deductible for the gift giver – that makes the brigade a Deductible Gift Recipient or DGR.  Tax deductible receipts can only be given

… for genuine gifts/donations (i.e. where the donor does not receive a benefit except for the tax deductible receipt). Proceeds of raffles, charity auctions, fund-raising dinners, sponsorships and commercial activities are not deductible gifts/donations.

If that is the case the DGR account should not have ‘profit from raffles etc as well as payment for services rendered such as assisting in local events’ as that income would not be a tax deductible gift.    A gift fund (the DGR account) must not receive any money other than a tax deductible gift (Income Tax Assessment Act 1997 (Cth) s 30.130(1)).

The Income Tax Assessment Act 1997 (Cth) says that money received as a tax deductible gift may be used ‘only for the principal purpose of the fund, authority or institution’ (ss 30.130(2) and 30.130(4)).   ‘Principal purpose’ is not defined but in a web based guide to the law, the ATO gives the following example (<Can you be endorsed as a DGR?> 20 July 2015, accessed 1 September 2015):

A local government council that is a DGR for the operation of its public library sets up a fund for donations towards the annual picnic for its library staff. The fund is not for the principal purpose of the public library and so cannot be a gift fund.

Notwithstanding this general provisions, there are specific provisions regarding donations to funds for fire and emergency services.  A donation is tax deductible if it is made to a fund maintained by a government agency (which must include the RFS; s 995.1 definition of ‘Australian Government Agency’) and:

(b) the principal activity of the entity is the provision of volunteer based emergency services that are regulated by a *State law or a *Territory law;

(c) the fund is established and maintained solely for the purpose of supporting the volunteer based emergency service activities of the entity (Income Tax Assessment Act 1997 (Cth) s 30.102(12A.1.3)).

Running a celebration for a rural fire brigade may not be the brigade’s ‘principal purpose’ but it is ‘in support of activities that are associated with the brigade’s volunteer-based fire and emergency service activities’ (Service Standard 2.1.14, [3.6]).  The brigade members are volunteers, not staff, so their service has to be recognised by means other than salary, and as the RFS recognises, ‘Ceremonial events strengthen and develop a healthy service culture for members and their families’; matters fundamental to maintaining a volunteer brigade (Service Standard 8.1.3, [1.2]).

Service Standard 8.1.3 is headed ‘Ceremonies and Events’ and is supplemented by SOP 8.1.3 – 1 ‘Conducting Ceremonies and Events’.  If the RFS is going to have a service standard and SOP on ceremonies, it stands to reason that it is expected that ceremonies will be held, and will be paid for.   Unfortunately neither the Service Standard nor its SOP make reference to how the events will be funded.

Application

The RFS accepts, even encourages, ceremonies such as a brigade anniversary celebration.  I can see no objection to spending brigade funds that have been raised by selling ‘from a soft drink fridge and foods’ or money raised by raffles or other approved fund raising activities provided it wasn’t said that the funds were being raised for a particular purpose.  If, for example, a raffle was run in order to ‘raise funds to buy a new pump’ then the funds should be spent only on that new pump.  If however the raffle is for the benefit of the Kickatinalong Rural Fire Brigade then the funds can be spent on any legitimate purposes of the brigade which must include a brigade celebration held in compliance with Service Standard 8.1.3.

If the money has been paid as a tax deductible donation then it must be spent ‘only for the principal purpose of the fund, authority or institution’.  The principal purpose of the RFS may be fire fighting but a legitimate purpose of a DGR fund includes ‘supporting the volunteer based emergency service activities’.  Minds may differ on what that means.  I would have no problem in saying that includes a celebration held in compliance with Service Standard 8.1.3 but others may take a different view.    If the money is spent on a celebration and someone alleges that is a breach of the tax laws they would have to satisfy a court that this activity was outside ‘activities that are associated with the brigades volunteer-based fire and emergency service activities’.   If the RFS wants to take a cautious view they can determine that those funds cannot be spent that way.    It may be that the RFS has direction from the Treasury which they too must comply with.

Conclusion

Without access to treasury and RFS financial policies and delegations I am not able to reach a definitive conclusion.  It would be my view however that:

1. Unless money has been solicited for a particular purpose, money raised by selling drinks and food from the station fridge, as well as money raised by raffles and other fund raising could be spent on a celebration that is conducted in accordance with Service Standard 8.1.3.
2. Money that has been received as a tax deductable donation, again assuming it was not given for a specific purpose, must be spent ‘for the principal purpose of the fund, authority or institution’.  I am unable to resolve whether that would extend to a ‘celebration’.  To answer that the RFS or the brigade would need to seek advice from a specialist tax lawyer or accountant.  Of course if the RFS has a policy position, the brigade would need to comply with that policy determination.

What’s to be done?

The members of the brigade should not rely on ‘word of mouth’.  No doubt there is a process to raise the matter with senior management and get a definitive ruling either from them or RFS head office as he RFS can, if need be, seek advice from its lawyers or financial managers.  Once an answer is obtained it must be honoured.

This question comes from a firefighter in Western Australia. I am asked

If you’re not an FCO and you are turned out to a report of smoke do you have to ask for permission before entering the property to investigate from the land owner if present? Section 44 states that you have to consult with the occupier, if he/she be present, but what does this mean in the real world? In the context does consulting mean asking for permission? The general consensus was that you do have to get permission, but I’m not so sure and I wonder whether there’s any legal basis from which to form this view. Any help would be very much appreciated.

An FCO is a Fire Control Officer appointed by a Local Government (Bush Fires Act 1954 (WA) s 38).

Section 44(1) says:

Subject to this Act … for the purpose of controlling and extinguishing or preventing the occurrence or spread or extension of a bush fire, or for any other prescribed purpose, the captain, or, in his absence, the next senior officer of a bush fire brigade, or in the absence of the captain and all other officers, any other member of the bush fire brigade, after consulting with the occupier of the land if he be present, has and may exercise all or any of the following powers and authorities, he may —

(a)         …

(b)         either alone or with others under his command or direction, enter on land or into premises which may be on fire or in the neighbourhood of a fire for the purpose of taking such steps as he deems necessary for the control or extinguishment or for the prevention of the spread or extension of the fire, or take or give directions for taking such apparatus required to be used at a fire into, through, or upon land or premises as he considers convenient for the purpose;

(c)         …

(d)         enter or give directions for entering land or premises, and take or cause to be taken water from any source whatsoever, other than that for use at a school or the domestic supply of an occupier contained in a tank at his dwelling-house, whether the water is upon private land or other land, and in all other respects, when and as often as in his opinion he deems it necessary or expedient to do so, exercise all the powers and authorities of a bush fire control officer under this Act;

(e)         either alone or with others under his command or direction enter a building which he believes to be on fire and take such steps as he considers necessary to extinguish such fire or prevent it from spreading.

‘Consult’ cannot mean ‘get permission’.  If it did that is what the legislature would have said and secondly, it would defeat the broad powers that are intended to be given.   According to the online Oxford dictionary defines ‘consult’ as, inter alia, ‘Have discussions with (someone), typically before undertaking a course of action’.

In Yallingup Residents Association (Inc) v State Administrative Tribunal & Ors [2006] WASC 162, Johnson J of the WA Supreme Court had to consider what ‘consult’ meant in the Town Planning and Development Act 1928 (WA).   He said (at [89] and [90]):

In Darling Casino Ltd v Minister for Planning (at 12), Pearlman J, in considering the meaning of the term “consultation” in the context of an environmental planning policy, referred to the following conclusion of Bucknill J in Rollo & Anor v Minister of Town and Country Planning [1948] 1 All ER 13 (at 17):

“A certain amount has been said as to what consultation means … it means that, on the one side, the Minister must supply sufficient information to the local authority to enable them to tender advice, and, on the other hand, a sufficient opportunity must be given to the local authority to tender that advice.”

It can be seen that this interpretation requires, as counsel for the Association noted, a two step process:

(a)          the provision of sufficient information; and

(b)          a sufficient opportunity to respond.

In TVW Enterprises Ltd v Duffy & Ors (No 2) (1985) 7 FCR 172 Toohey J (at 178 – 179) observed that, irrespective of the statutory context, the obligation to  consult  carries a responsibility to give those consulted an opportunity to be heard and express their views so they may be taken into account.

It seems axiomatic that an obligation to ‘consult’ with the occupier of the land would be to let the occupier know what the fire brigade want to do and ask the landowner for his or her advice or comments.   That makes sense.  First it invites the occupier to agree and may therefore reduce the need or threat of force or damage.  It may well reveal to the fire brigades things they don’t know such as ‘be careful of the bull in that paddock’.  It would allow the occupier to ask the brigade to consider the occupier’s interests eg the occupier may point out their prize rose garden and ask the brigade to minimise the impact of their operations there if that is possible.

Consulting with the occupier reflects that emergency management is not the sole responsibility of the fire service but involves cooperation with those involved, and people have rights and interests in land that need to be respected to the extent that they can be.  Consulting, however, does not equate to gaining consent and it may be that after consultation, the brigade has to act contrary to the person’s wishes.

As Johnson J noted (at [93]) ‘The extent of the obligation “to make reasonable endeavours to  consult ” must be construed by reference to the language of the Act viewed as a whole, including the regulations made under that Act’.  The obligation to consult under the Bush Fires Act where immediate action is required, will not be the same as the obligation under the Town Planning and Development Act 1928 (WA), as it was.  In a town planning decision a local government may be able to send out notices to affected landowners inviting them to comment on the plan and allowing a period for comments to be made.  A bush fire brigade does not have that luxury so consultation may be quite abridged.  Even so ‘the requirement of consultation is never to be treated perfunctorily or as a mere formality” ([91]).

Conclusion

In my view the duty to consult referred to in s 44 would mean that, to the extent possible taking into account the nature of the call out, a bush fire brigade would need to try to let the occupier know what they, the brigade, want to do and then take the occupier’s advice, concerns, requests or objections into account when formulating their incident action plan.

A class action over damages caused in the Blue Mountains (NSW) in 2013 has been commenced in the NSW Supreme Court. In NSW a ‘class action’ is an ‘opt out’ process.   A person who has been injured or suffered a loss can begin an action on behalf of the ‘class’ of people who suffered losses in the same event. Once that happens all members of the class are part of the litigation unless they ‘opt out’.   The idea is not to have multiple cases going over the same ground and the same facts. In this instance all the people who suffered losses shouldn’t have to sue the same defendant; if the representative plaintiff can prove that the defendant was negligent then everyone should get the benefit of that finding thereby reducing duplication and expense.

So it was that Mr Johnston instructed Maddens lawyers to commence a legal action against Endeavour Energy alleging that they were responsible, in negligence, for the fire that broke out on 17 October 2013 in Springwood.   Mr Johnston defined the class of plaintiffs broadly and as required by the rules various notices were sent out and published to bring the action to their attention so that they could exercise their rights to ‘opt out’.

Many of the people who had suffered a loss were insured by insurance companies owned by Insurance Australia Group Ltd (IAG). IAG owns NRMA Insurance, CGU Insurance and Wesfarmers Insurance which also traded as Coles Insurance and Lumley’s.   The various insurance companies had paid out on policies to 565 individuals and companies that were included in the class of plaintiff’s in Mr Johnston’s case.   IAG purported to exercise its rights as the insurer to act on behalf of those it had insured.

The rule is a rule of subrogation. Put simply it means that if an insurer has paid out on the policy it stands with all the rights of the insured and can sue, in the insured’s own name, to recover the amount it has paid out. What the IAG insurers want to do here was to also recover, on behalf of their policy holders, the uninsured losses. That is if an insured person had cover for $600 000 but the cost of rebuilding was $800 000 then they had an uninsured loss of $200 000. The IAG wanted to run the litigation to recover all the money; it would be entitled to keep what it had paid out and give the extra to the policy holder. To achieve that objective, two people commenced another class action. The insurers advised Mr Johnston that all the people who they insured were ‘opting out’ of that class action and would instead be in the class action that IAG was running.   But they never asked their policy holders if that is what they wanted …

So in Johnston v Endeavour Energy [2015] NSWSC 1117, Garling J had to decide who was in what ‘class’.   His Honour first looked at the law of subrogation and found it is not as simple as my description, above. In particular where a person was under insured or suffered uninsured as well as insured losses, they retained the right to bring their own action to recover damages. They would have an obligation to repay the insurer for any amount the insurer had paid under the policy, but the insurer was not able to commence proceedings in the name of the insured: ‘where the insurer’s payment to an insured does not cover the whole of the insured’s loss, an insured has and retains the right to recover his entire loss as the litigating plaintiff … without interference from the insurer’ [174].

An insurer could however litigate in the policy holders name if that was a term of the insurance contract. Here Garling J went through the various policies. Some did say that the insurer could conduct litigation to recover both the insured and uninsured losses and for people who had that policy, it was the end of the matter and the ‘opt out’ notices served by IAG were effective.

Other policies were not so worded.   Some said that IAG may seek to recover uninsured losses if they were asked to do so by the insured, some said that the insurer could seek to recover insured losses but made no mention of uninsured losses.   In those cases there was no right, under the contract, that would allow IAG insurance companies to conduct litigation on behalf of their policy holders to recover their uninsured losses.

It would appear that the driving issue was ‘priority’. If the claimants remained part of the Johnston class, then if they recovered they would get their uninsured losses, and any amount recovered above that would be repaid to their insurers. If they were part of the insurance company’s litigation, then it would be the insurers that would be paid first and any amount recovered in excess of the insured losses would go to the policy holders.   As Garling J said (at [145]) ‘one might be forgiven for thinking that the real issue is whether it is the insurer or the insured who will carry the shortfall on any sums recovered’.

Result

For some 30 claimants, their insurance policy gave to their insurance company the right to sue in their name to recover both their insured, and uninsured, losses. For those people the ‘opt out’ notice served by IAG was effective and they were removed from the Johnston class action with their rights to be determined by the class action that would be run by the insurers.

For the other 533 the ‘opt out’ notices were invalid as they were served by the insurer without proper authority.   Those claimants, who had not chosen to ‘opt out’ of the Johnston action, now remain part of that action in order to recover their uninsured losses. The insurance company’s do retain the right to stand in the shoes of their policy holder in order to recover any money paid under the insurance policy (ie the insured losses) and so the two actions will no doubt proceed in tandem.

On 4 August the NSW Health Minister, Mrs Jillian Skinner, introduced the Health Services Amendment (Ambulance Services) Bill 2015.

This Bill, if passed, will open the door to allow licensed providers of “supported non-emergency transport”.   The scheme will be based on the scheme already in place in Victoria. According to the Minister:

Organisations providing supported transport will be obliged to ensure that the vehicles used are equipped in a manner that ensures patient safety. They will also be required to ensure that clinical care and monitoring is provided in a manner that ensures patient safety. Similarly, hospitals, aged care facilities or other organisations that contract or engage service providers to supply supported transport will be obliged to take reasonable steps to assure themselves the transport provided is safe and appropriate.

These provisions follow developments in other states and make sense to ensure that emergency ambulance crews are not diverted to cases that do not require their specialised skills.

It should be noted that the Bill does not provide for a licensing scheme, that is an operator will not need to apply to the Department or Minister before setting up a transport service.   Provided the service meets the prescribed standards it can operate.  The Minister has the power to prohibit a person or entity from providing ‘supported non-emergency transport’ if they have previously operated in contravention of the standards and it is necessary to prohibit their future involvement ‘to protect the health or safety of members of the public’.

From my perspective, the more interesting aspect of this Bill are changes to the prohibition on the provision of ambulance services. The Health Services Act 1997 (NSW) s 67E currently says:

(1) A person must not:

(a) directly or indirectly provide or take part in the provision of transport for sick or injured persons for fee or reward, or

(b) conduct for fee or reward any operations similar to the operations carried on by the Health Secretary under this Chapter,

without the consent of the Health Secretary and except in accordance with such conditions (if any) as the Health Secretary may from time to time impose.

This section does not say that a person must not take part in the provision of transport to a hospital but other transport is OK. Even though it does not say that many providers of private ambulance services think it does. The idea that private providers can transport around an event, say from the site of injury to a medical centre, was put and rejected in Paramedical Services Pty Ltd v The Ambulance Service of New South Wales [1999] FCA 548. In that case, Justice Hely ‘concluded that the provision of event prehospital care and patient transport, even if that transport is limited to transportation around the event site, for example from a first aid post to a medical centre, was the provision of ambulance services and was, therefore, illegal without appropriate approval.’ (For a more complete discussion see Michael Eburn and Jason Bendall, ‘The provision of Ambulance Services in Australia: a legal argument for the national registration of paramedics’ (2012) 8(4) Australian Journal of Paramedicine, Article 4 <http://ro.ecu.edu.au/cgi/viewcontent.cgi?article=1380&context=jephc>).

Even so there has been a growth in private event first aid providers and, as Bendall and I noted:

Governments appear to tolerate these activities and many of the private sector providers have government authority to carry and administer medications that are used in prehospital care. The effect is that a number of people and organisations are authorised to carry and use medications for the provision of first aid or transport of the sick and injured even though the provision of those services (in NSW) is prohibited.

The 2015 Bill will change all that. If passed it will no longer ben an offence to ‘conduct … operations similar to the operations’ of NSW Ambulance, rather it will be an offence to provide ‘emergency ambulance services’.   ‘Emergency ambulance services’ will be defined to mean

… ambulance services that provide transport to sick and injured persons to or from hospitals:

(a) in response to requests for medical assistance for persons who may have injuries or illnesses that require immediate medical attention in order to save or maintain life or to alleviate suffering, and

(b) using staff who provide attention for the purpose of saving or maintaining life, or alleviating suffering, during transportation.

Ambulance services will continue to mean ‘services relating to the work of rendering first aid to, and the transport of, sick and injured persons’ (Health Services Act 1997 (NSW)).

What will be prohibited under the Bill is transport ‘to or from hospital’. Transport around an event site will not be prohibited.

Why is it about time?

It’s about time these changes came in because it is apparent that for years the prohibition contained in s 67E has been ignored.  Legislators should ensure that the law says what they mean it to say, and they say what they mean.  The law has said that there is a prohibition on providing ambulance services but clearly no-one really meant it.  Bringing the law into line with desired practice is a good idea, but this change may go too far.

Where does that leave event first aiders?

The obvious problem is that an organisation that wants to provide first aid or paramedic services at a community event may be even less regulated than they are now! If they are not providing ‘transport … to or from hospitals or other places where those persons can obtain medical services’ then they are not providing ‘supported non-emergency transport’ nor are they providing an emergency ambulance service.

There is in fact nothing to stop me setting up Eburn’s Paramedic Event Services and sending people out to provide first aid with nothing more than good intentions. If they injure a patient or mislead the event organisers into thinking the are getting a service they are not, then all the remedies will be private in nature, that is the patient or the event provider would have to sue me.   I would not be in breach of any provision of the ambulance service legislation and the government would have difficulty regulating my conduct.

If and when the Health Services Amendment (Paramedics) Bill 2015 (NSW) passed, my service could not use the title ‘paramedic’ but apart from that I could continue to operate.

The current prohibition was clearly not enforced on its terms, ie private providers were providing services ‘similar to the operations’ of the Ambulance Service of NSW but at least they needed consent or risked prosecution. Should this Bill become law, it will certainly be easier for event first aid providers to set up with less regulation. I’m sure that is not the intended outcome.

An alternative

I think a better method of regulation can be found in the Emergencies Act 2004 (ACT).  Under that Act it is an offence to provide an ’emergency service’, which includes an ambulance service, without the permission of the Minister (s 63).  The minister has however granted approvals and these are published on the ACT Legislation Register – see for example, http://www.legislation.act.gov.au/ni/2015-350/current/pdf/2015-350.pdf.   It is then possible to see who is approved and what services they can provide. Their services could be non-emergency patient transport, emergency patient transport or event first aid.  Requiring prior approval allows the Minister to be satisfied, before patients get treated, that the provider is meeting all the necessary standards as it is better to protect patient safety before, rather than after, they need patient care services.

Conclusion

It is about time that the NSW Government recognised both the need for private providers to help meet the demand for patient transport and to free up NSW Ambulance for emergency work.  That is a good step but it is a concern that prior approval is not required before private operators start their business.   Having the power to prohibit providers after they have failed to meet prescribed standards is not as secure as requiring them to satisfy the minster before they commence operations that they are meeting those standards.

Removing the blanket ban on the provision of ambulance services, and now having it for emergency ambulance services will also reflect the reality that there are private providers but it has gone so far that those that are providing event first aid, and not transport to and from a hospital, are now unregulated.  That may have gone too far.

This worrying story comes from a Victorian paramedic student who tells me that:

As part of the degree we undertake placements state wide and last week I was in a rural A & E department after bringing in a patient. Whilst there, one of the nurses approached us (the paramedics) and asked if we could help move a patient from their vehicle into the A&E as technically they (the hospital staff) are not allowed to deal with patients not already inside. The patient in question had been brought to the hospital by his friend, and not by an ambulance. When we walked out, his friend had already gotten him out of the car and onto a wheelchair so we didn’t end up needing to assist. He’d fallen from a tree and was in considerable pain in his neck and upper back, with tingling in his hands, and unable to stand without assistance and even then he couldn’t walk. Once inside, he was made to stand by the doctor (with help mainly from his friend and us) and sit onto the bed, obviously without spinal precautions such as a collar etc.

Later we heard that he had suffered fracture(s) to his vertebrae although I’m not sure of the extent of his injuries.

My question is: What are the implications had the fractures been unstable and he had suffered neurological injuries whilst getting out of the car after being told by the hospital staff that they couldn’t help him. And as paramedics who hadn’t been officially dispatched to the job, would the paramedics be at risk while helping him seeing as though they were specifically asked by hospital staff and were not officially attending?

This story is worrying, not only for implications of the patient, but because it shows some fundamental misunderstanding of the law in particular by the hospital.

Let us assume that the patient’s fractures were ‘unstable and he had suffered neurological injuries’. There are four critical time points when this may have happened:

1. when he fell out of the tree;
2. as he was being loaded into his friend’s car and driven to the hospital;
3. in the hospital carpark; or
4. in the hospital when directed by the doctor to move onto the bed without appropriate spinal precautions.

The incidents at (1) and (2) are not relevant to this discussion.

A hospital, particular one that operates an emergency department, is holding itself out as providing a service to anyone that comes to its doors (Barnett v Chelsea and Kensington Hospital Management Committee [1969] 1 QB 428). Even if there was no emergency department a hospital, like the occupier of any building, must owe a duty to people who are on its premises. Imagine, if you will, that a person comes to your house and knocks on the door and asks for assistance and then collapses. Although you in no way caused their injury and may not know the person you cannot just leave them lying at your doorstep, you have a duty to do something even if it is no more than a duty to call an ambulance.

One has to infer from this story that the friend had approached the A&E staff and been told that he had to bring his friend into the casually area. If that were not the case the nurses wouldn’t have known to approach the paramedics and would not have made the point that they ‘are not allowed to deal with patients not already inside’. Although it is not usual for lawyers to be definitive, particularly when considering short stories, I prepared to say with a firm degree of conviction the hospital that tells its A&E staff that they cannot treat people unless they are actually inside the casually room is opening its doors to a negligence action.

The hospital owes the duty to the patient not only because he is a person seeking their assistance, but also because he is on their grounds.    The nurses are stuck between a direction from the hospital and the patient’s needs.  The direction from the hospital does not however define what the hospital’s duty is – if they have a duty to respond, the direction to the staff is evidence of the hospital’s negligence rather than any sort of defence.

In Lowns v Woods (1996) Aust Torts Reports 81-376, Dr Lowns was found to have been negligent when he failed to respond to a call for assistance that was made to him when he was at his practice and where it was clear the patient was very nearby.   If that was the conclusion for a private practitioner how much clearer will the case be for a hospital A&E? A person approaches the A&E, he has made it onto the hospital grounds, the staff are there to provide an emergency service and they fail to attend.  A more clear-cut case of breach of duty of care is hard to imagine.

The nurses are stuck between a rock and a hard place.  On the one hand they have the direction from their employer, on the other the humanitarian impulse to assist and also their professional duty.  Remember in Dekker v Medical Board of Australia [2014] WASCA 216, Dr Dekker was found to be guilty of unsatisfactory professional conduct when she failed to assist at a car accident (see Further legal ruling affecting ‘Doctors as ‘good Samaritans’ – do I have to stop?’ (January 3, 2015)).   That finding was overturned due to the facts of the case, but in my correspondent’s story there is a person in the hospital car park approaching registered health professionals, who have an expertise in emergency medicine and who are at work in an emergency department.  It’s hard to see how refusing to attend would not be conduct ‘that is of a lesser standard than that which might reasonably be expected of the health practitioner by the public or the practitioner’s professional peers’ – ie ‘unprofessional conduct’ within the meaning of the Health Practitioner Regulation National Law (as set out in the Schedule to the Health Practitioner Regulation National Law Act 2009 (Qld) and adopted into the law of Victoria by the Health Practitioner Regulation National Law (Victoria) Act 2009 (Vic)).

The nurses may be concerned that if they act in the carpark, contrary to the directions of the hospital, they are ‘no longer covered by the hospital’s insurance’.    Many people use that sort of language, but it is wrong.  First what the ‘insurance’ covers does not determine what duty the hospital owes.  If actions are not covered by ‘insurance’ then the relevant defendant has to meet the liability from its own resources.  Here the nurses are employed by the hospital to work in its A&E and provide emergency medical services.  If, as I have argued above, the hospital owes a duty of care to people in its carpark as well as those who have crossed the threshold of the doors, then nurses who are at work, and who go outside to assist, are still acting in the course of their employment.  In the event of any negligence the hospital would be liable regardless of the alleged direction.

To return to the question – ‘What are the implications had the fractures been unstable and he had suffered neurological injuries whilst getting out of the car after being told by the hospital staff that they couldn’t help him?’  In my view the hospital would be liable in negligence for the aggravation of those injuries.

Does that mean hospital staff have to attend to every request?  The answer has to be yes, they have to respond but what the response is will vary with the circumstances.  If everyone is engaged treating a patient with life threating injuries they may not be able to leave.  If the person is outside the hospital grounds or even too far from A&E then it may be appropriate to call someone else, another doctor, nurse or the paramedics – either those in the hospital or to make a triple zero phone call.  In some cases the reasonable response would be to tell the person who is seeking assistance to call triple zero.

In this case we are told that the nurses approached the paramedics.  The fact that the paramedics were not ‘officially attending’ is irrelevant.  One assumes that means ‘had been directed to the task by the ambulance co-ord centre’ but what is that the only way to ‘officially’ attend.  Like Dr Lowns the paramedics were approached not just because they were someone there, but because they were paramedics.  They attended whilst at work and whilst wearing the uniform of their service.  What happened here is akin to paramedics seeing an accident occur in front of them or being approached either at their station or whilst sitting in their ambulance (see Failure to attend by NSW Police and Ambulance (December 18, 2013)).    When they approached the person in need of assistance they did not stop being paramedics or forget everything they knew just because they were in a hospital.  They approached the person in need of assistance and they did so because they were paramedics currently at work as paramedics.    I think it is axiomatic that they owed the person a duty of care but if it is not axiomatic, let us consider the ‘salient features’ that establish a duty of care.

This list comes from the decision of Allsop P of the NSW Court of Appeal in Caltex Refineries v Stavar (2009) 75 NSWLR 649.  Allsop P said (at [102]-[103]):

… If the circumstances fall within an accepted category of duty, little or no difficulty arises. If, however, the posited duty is a novel one, the proper approach is to undertake a close analysis of the facts bearing on the relationship between the plaintiff and the putative tortfeasor by references to the “salient features” or factors affecting the appropriateness of imputing a legal duty to take reasonable care to avoid harm or injury.

These salient features include:

(a)          the foreseeability of harm;

(b)          the nature of the harm alleged;

(c)           the degree and nature of control able to be exercised by the defendant to avoid harm;

(d)          the degree of vulnerability of the plaintiff to harm from the defendant’s conduct, including the capacity and reasonable expectation of a plaintiff to take steps to protect itself;

(e)          the degree of reliance by the plaintiff upon the defendant;

(f)           any assumption of responsibility by the defendant;

(g)          the proximity or nearness in a physical, temporal or relational sense of the plaintiff to the defendant;

(h)          the existence or otherwise of a category of relationship between the defendant and the plaintiff or a person closely connected with the plaintiff;

(i)            the nature of the activity undertaken by the defendant;

(j)           the nature or the degree of the hazard or danger liable to be caused by the defendant’s conduct or the activity or substance controlled by the defendant;

(k)          knowledge (either actual or constructive) by the defendant that the conduct will cause harm to the plaintiff;

(l)            any potential indeterminacy of liability;

(m)         the nature and consequences of any action that can be taken to avoid the harm to the plaintiff;

(n)          the extent of imposition on the autonomy or freedom of individuals, including the right to pursue one’s own interests;

(o)          the existence of conflicting duties arising from other principles of law or statute;

(p)          consistency with the terms, scope and purpose of any statute relevant to the existence of a duty; and

(q)          the desirability of, and in some circumstances, need for conformance and coherence in the structure and fabric of the common law.

It is clearly foreseeable that a person who has ‘fallen from a tree and was in considerable pain in his neck and upper back, with tingling in his hands, and unable to stand without assistance and even then he couldn’t walk’ would suffer more harm if not properly managed.  The nature of the harm that could occur is catastrophic.   The paramedics could do something to avoid that harm, in fact they are experts, they could have directed both the patient and his friend to stop moving, and then treated the patient in accordance with their clinical practice guidelines (CPG A0804 – Spinal Injury accessed 19 August 2015).  The fact that he was in a hospital carpark does not detract from the need to properly treat him particularly if the hospital staff weren’t prepared to come outside.   The patient (the potential plaintiff) was of course was vulnerable. He’s already been injured and one can infer from what he and his friend were doing, they did not know or appreciate the risks.   They came to hospital seeking care and although they may not yet have made it into A&E they are now being assisted by a Victoria Ambulance paramedic.  Neither the hospital or paramedics have ‘assumed responsibility’ but in this case that doesn’t suggest no duty of care, rather it suggests a breach – they should have because that is what they are there for and that is what the person in need of care is seeking – professional medical assistance.   Proximity is self-evident, the person is in the hospital carpark so is proximate to the hospital, and within arm’s length of the paramedics.  One could go through the rest of the list and I think it would be clear that the paramedics owed a relevant duty of care.

To return to the question – ‘would the paramedics be at risk while helping him seeing as though they were specifically asked by hospital staff and were not officially attending?’ The paramedics are not risk for attending; him that is what they do so they would be performing their duty.  I would suggest that they are at risk in not attending or, if they attend, not treating the person in an appropriate manner using their professional skills and training.  The fact that he’s in a hospital carpark is irrelevant – see Victorian Paramedics treating patients inside the A+E (June 12, 2015).

The issue

The ultimate issue, if this person’s ‘fractures [had] been unstable and he had suffered neurological injuries whilst getting out of the car’ would be exactly when did the injuries occur?  If they happened in the car park the hospital may claim that it met its duty of care by directing the paramedics to the scene and that they could have, and should have, managed the situation at that point.  That is, asking the paramedics to attend met their duty of care.

If however the injuries were sustained when the fellow was getting out of the car and before the paramedics got there, the allegation would be that it was negligent of the nursing staff not to attend or at least not to say ‘leave him in the car, we’ll get someone to you’.

If the injury occurred in A&E where the patient ‘was made to stand by the doctor (with help mainly from his friend and us) and sit onto the bed, obviously without spinal precautions such as a collar’ then the focus would be on the doctor’s conduct but also on the paramedics.  Did they say ‘hang on doctor, this guy’s reporting ‘pain in his neck and upper back, with tingling in his hands, he’s unable to stand without assistance and even then he can’t walk’.  If not, then the doctor doesn’t have the relevant history even though there’s someone there (the paramedic) who could intervene and give that information.

Conclusion

First of all let me stress I have only my correspondent’s version of events and at that only one paragraph.  No doubt there are more subtleties including issues of what was going on in A&E and whether or not the report that ‘… (the hospital staff) are not allowed to deal with patients not already inside’ was accurate – a point that may be denied by the hospital.  So this is not definitive advice on a real case; it’s a discussion on the limited facts given above.

Given those limited facts I would have no difficultly arguing:

1. That the hospital owes a duty of care to persons who arrive seeking assistance, even if they don’t make it into the doors. A direction that hospital staff are not to deal with patients other than those in the building would be convincing evidence of a breach of that duty.
2. Where there is a duty of care, it may not require personal intervention, sending someone to assist, such as a paramedic, may be sufficient.
3. The paramedics owe a duty of care to anyone they come to assist regardless of whether the calls come via the triple zero call centre or not. These paramedics were on duty, approached in their capacity as paramedics, to assist a person in need of urgent medical help.  They would owe a duty of care.  That duty would be to act as a reasonable paramedic which must require treatment in accordance with the Clinical Practice Guidelines, taking into account that they are in fact in the hospital car park.  That might mean not doing everything that one normally does before transport but that would be a matter for clinical judgment.
4. In my view, and given the limited facts, had this person’s ‘fractures been unstable and he had suffered neurological injuries whilst getting out of the car’ he would have a good cause of action against the hospital.
5. If the neurological injuries were sustained after the paramedics arrived, that is after he was in the wheel chair and during his transfer into A&E, he would have a good cause of action against both the hospital and Ambulance Victoria. Where and how liability would be shared would depend on much more evidence about who did and said what.

Readers of this blog, in fact everyone, is concerned that their well-intentioned actions could be the subject of scrutiny in legal proceedings. Whether a person is being sued (civil), prosecuted (criminal) or appearing as a witness to explain their conduct, the process and potential outcomes are frightening.   But the upside is that the legal processes can reveal shortcomings and lead to improved practices.   Employees may well be aware of the shortcomings in their workplace but cannot get change- but legal proceedings, or fear of them, may cause the employer to take action where the employees could not.

This blog is going to report on two recent stories and the reaction to them on social media. Neither of these events have yet lead to legal consequences but they are likely to; but staff and first responders should not fear those proceedings.

The first event happened in Sydney, Australia. A man went to Royal North Shore hospital for an appointment. He went to the toilet where he collapsed. He was located some 21 hours later and subsequently died.

• ‘Stroke victim left unattended in toilet for 21 hours dies‘ http://www.9news.com.au/national/2015/08/12/18/29/elderly-patient-left-undiscovered-in-sydney-hospital-toilet-for-21-hours#24wdYA3m6SMG8QkK.99
• ‘Coroner to investigate patient who died after 20 hours in hospital toilets” http://www.smh.com.au/nsw/coroner-to-investigate-patient-who-died-after-20-hours-in-hospital-toilets-20150814-giznr5.html#ixzz3irL6XJay
• ‘Man dies after being found unconscious in toilet cubicle at Sydney’s Royal North Shore Hospital’ http://www.abc.net.au/news/2015-08-15/hospital-stroke-victim-found-toilet-cubicle-dies/6699682
• ‘Sydney’s Royal North Shore Hospital amends protocols after man spent 20 hours unconscious in toilet’ http://www.abc.net.au/news/2015-08-12/man-spent-20-hours-unconscious-in-sydney-hospital-toilet/6693260

What concerns me is the reaction on social media – comments like “Last time I checked ‘checking public toilets’ was not in a nurses role description, good job blaming nurses once again” and “Response from the hospital, nurses did not check the toilets!”   None of those articles blame the staff – they do say:

Dr Montague said nurses did not check the toilets when they closed up each day. That job was normally reserved for cleaners, but the toilets were not checked that evening.

That does not say the nurses should have checked the toilets- that was the cleaners work not the nurses.   Neither do any of the articles claim that the outcome would have been different had he been discovered earlier but one has to infer that it may well have been as he only died some time after he was discovered.

Let us assume there is legal consequences here, a coroner will investigate and there may be civil action. A coroner may make recommendations regarding staffing, staff training for cleaning staff, perhaps a redesign of the toilets so doors and walls don’t go all the way to the floor.

If there is civil action the plaintiffs would have to prove the outcome would have been better had there been different procedures and that it would have been ‘reasonable’ to have them. Again the social media has debates about what or would not have been a viable alterative but should it go to court, then those matters will be calmly considered.

My point is that the community seems so indoctrinated to fear of blame that it is perceived that blame is being attributed here when that is not the case. Further already people are rushing to defend the ‘nurses’ and perceive ‘buck shifting’ when again there is no evidence of that.   This is a tragic case and it does seem incongruous that a person was not discovered for 21 hours and the building was not properly secured when it was closed up.   Rather than fear the legal outcomes, people and in particular the nurses and security staff, should welcome the inevitable coronial investigation.   That may well make recommendations regarding staffing, training and toilet design to try to avoid a repetition rather than immediately see reporting of such an event as a complaint.

On a similar note is another case this time from the United States – ‘NTSB Criticizes Emergency Response in Tracy Morgan Crash’ (http://www.firefighternation.com/article/news-2/ntsb-criticizes-emergency-response-tracy-morgan-crash).   The story relates to an investigation into a fatal motor vehicle accident on June 17, 2014. The NTSB (National Transport Safety Board) noted that the truck driver involved had not slept for 28 hours and that the passengers of the limousine were not wearing seat belts.   The Board was also ‘sharply critical of the emergency response to it and are urging the state [of New Jersey] to establish minimum standards’.

So then there are comments like ‘So they don,t put on seat belts and blame EMS and Firefighters for their injuries . Bullshit!’ and ‘… must have someone to blame, but, not themselves. Volunteer some time in their local fire or ambulance.’

Again I fail to see any blame in this story. The deceased failed to wear seat belts and that contributed to their fatal injuries when the car they were in was struck by a truck. But the NTSB isn’t confined to finding only one causal factor, and if they find that there were “missteps on scene due to poor communication, lack of oversight, and nonstandard patient care practices” and to then recommend “the state Department of Health establish minimum training and practice standards for all the organizations that respond to emergencies” that does not involve blaming the responders.  If it does reveal systemic errors, why should they not be identified and reported to bring pressure on the state to at least consider what, if anything they should do?

The Governor:

… called the [proposed] legislation well-intentioned and indicated it could help create a more coherent emergency response structure but ultimately said it would cost the state and towns millions of dollars. He also called for a comprehensive review of how the changes might affect taxes and volunteerism among emergency responders.

The NTSB can make recommendations (as can a coroner or Royal Commission) but it is up to the political leaders to balance the various competing factors to determine what to do.

Commentary

Often enough I’ve argued that litigation can appear to be a futile waste of time and money and we should all be cautious of blaming individuals for outcomes that are the product of systemic failures. Fear of developing a litigation culture is all well and good, but we don’t want to go too far the other way.

Reporting, and investigating adverse events is important but merely reporting an event does not equate to criticism or blame of those involved.   Investigating an event may well reveal shortcomings in practice, procedure or culture that can be addressed. Identifying those shortcomings is again not necessarily to blame nor to deny that actual outcomes may not have been caused by those shortcomings, the people in both these cases may have died with the best practice in the world, but that doesn’t mean there was best practice.

My concern is that we have created such a blame sensitive culture that people see blame being allocated where that is not the case, at least not in any of the articles cited. And a legitimate concern about the nature of legal proceedings has become an immediate adverse reaction to any suggestion that an event will be investigated.   A middle ground has to be found.

This question came as an email comment on my earlier post ‘NSW workers compensation and when is an employee a firefighter? or a paramedic?‘ (July 30, 2015).  Even though it was sent as a comment I thought it warranted its own post:

It has come to my attention that there may be an interesting gap in workers compensation coverage which was not anticipated in drafting the current NSW arrangements which you have recently discussed.

My question relates to NSW Ambulance volunteers who are neither paid employees of the service, nor are they strictly paramedics.

These officers include Community First Responders and Volunteer Ambulance Officers (previously described as “Honorary” officers), they perform many of the same functions as paid Ambulance Paramedics including responding in normal ambulance operational uniform, driving ambulance vehicles under ‘urgent duty or R1’ conditions, assessing treating and in some instances transporting patients according to the relevant protocols and pharmacologies.

From my reading of both the Workers Compensation (Bush Fire, Emergency and Rescue Services) Act 1987 (NSW) and also the Work Health and Safety Act 2011 (NSW) whilst being considered volunteers and therefore workers for the purposes of the more recent legislation’s scope, the earlier legislation is silent in relation to the broader position of these officers – perhaps it was reasonably assumed at the time that they would be considered ‘Ambulance Officers” for the purposes of workers compensation arrangements.

My question is – are these officers afforded the more generous protections of the earlier workers compensation arrangements as are their paid paramedic and Firefighter CFR colleagues.

There is a difference between Community First Responders and Volunteer Ambulance Officers.  This is what NSW Ambulance says about Community First Responders:

Community First Responders are accredited and operate under NSW Ambulance governance and training. The majority of volunteers respond under a formal Memorandum of Understanding with the State Emergency Service, the Rural Fire Service, or the NSW Fire Brigades. Community first responders do not operate from a NSW Ambulance or health facility, do not have a ambulance vehicle and do not transport patients.

Community First Responders who are volunteering or responding in their capacity as an SES or RFS volunteer or FRNSW retained firefighter will be entitled to compensation under the scheme that applies to their agency.  RFS and FRNSW firefighters are, by definition, firefighters so the 2012 amendments won’t apply to them.  SES volunteers are not fire fighters but in line with the decision in both In Ware v NSW Rural Fire Service [2014] NSWWCCPD 33 and New South Wales v Stockwell [2015] NSWWCCPD 9 they could argue that if they are injured whilst providing ‘specialist primary care to the injured or sick’ they were at that time a ‘paramedic’ (in the same way that Mr Ware would have been considered a firefighter when working at the fire ground) and so the amendments do not apply to them.

Volunteer Ambulance Officers (or as they were called ‘in my day’, Honorary Ambulance Officers – I served as an Honorary at Coonamble Station in 1989 and 1990) directly volunteer to the Ambulance Service.   According to the Ambulance Service:

Volunteers [sic] Ambulance Officers are accredited, trained and administered under the direct jurisdiction of NSW Ambulance. Volunteers may be attached to a station, a hospital or operate through an established volunteer station with assistance from neighbouring stations. Volunteers ambulance officers respond in an ambulance vehicles and can transport patients.

Their compensation rights are not determined by the Workers Compensation (Bush Fire, Emergency and Rescue Services) Act 1987 (NSW) but by the Workplace Injury Management and Workers Compensation Act 1998 (NSW).  Schedule 1 to that Act ‘deems’ certain people to be employees and one class of deemed employees is ‘Voluntary ambulance workers’ (cl 16).   The definition of a voluntary ambulance worker is ‘A person who (without remuneration or reward) voluntarily and without obligation engages in any ambulance work with the consent of or under the authority and supervision of or in co-operation with the Health Administration Corporation …’  That could include community first responders so an SES volunteer may want to argue that this provision, rather than the  Workers Compensation (Bush Fire, Emergency and Rescue Services) Act 1987 (NSW) applies as it may be more generous.

For Voluntary Ambulance Officers this is clearly the governing provision.  They are deemed employees and so the question would become ‘are they deemed paramedics?’  The answer, in my view, would be ‘yes’.   They are volunteering to provide ‘specialist primary care to the injured or sick’ (and the care they are providing is ‘specialist’ even if it is not at the level of an intensive care paramedic).  They are not volunteering to provide mechanical repairs or work in the office but to respond to emergency calls and if necessary transport patients.  It would be my view that they should, and would, be regarded as ‘paramedics’ and the 2012 rules would not apply.   You can see from Stockwell’s case however, that the insurer may not always agree with what seems obvious and dare I say it, right, so they may well want to argue that the exemption for paramedics does not apply to volunteers.  If that were the case a volunteer may end up arguing the point before the Commission.  In my view, and consistent with these earlier cases, the exemption from the 2012 amendments would extend to volunteer ambulance officers.

In December 2014 the then Queensland Premier, the Minister for Police, Fire and Emergency Services and the Rural Fire Brigades Association of Queensland (the RFBAQ) announced that the Queensland Parliament would consider ‘legislation to ensure that volunteer firefighters who contract certain cancers will be entitled to compensation without having to prove a direct link between their firefighting and the illness’ (see ‘Landmark legislation to protect [Queensland] firefighters’ (December 11, 2014))

Today there are two Bills before the Queensland Parliament.  The Workers’ Compensation and Rehabilitation (Protecting Firefighters) Amendment Bill 2015 is a Private Members Bill introduced by the Member for Kawana on 3 June 2015.  The Workers’ Compensation and Rehabilitation and Other Legislation Amendment Bill 2015 was introduced by the Treasurer, Minister for Employment and Industrial Relations and Minister for Aboriginal and Torres Strait Islander Partnerships on 15 July 2015.

A correspondent has written to me asking if I ‘might be able to offer an opinion that summarises these bills and the respective impacts to legislative outcomes in simple English? The volunteer association is heavily petitioning volunteers, media and political members in Queensland in favour of Bill 2 which only deals specifically with the presumption for specified cancers, whereas the other bill  (Bill 1) provides this and other unrelated amendments to the act in question and others’.

My correspondent’s email is long so I will give my interpretation of the Bills and deal with the issues raised without reproducing the email and questions in full.

Workers’ Compensation and Rehabilitation (Protecting Firefighters) Amendment Bill 2015

This is a short Bill that would, if passed, amend the Workers’ Compensation and Rehabilitation Act 2003 (Qld) by providing that if a person develops a disease listed in column 1 of the table and the person is, or has been, employed as a firefighter for the relevant number of years listed in column 2, then the disease is presumed to have been caused by the employment.

The table from the Bill is reproduced below:

Column 1 Column 2 Disease Minimum number of years as firefighter primary site brain cancer 5 years primary site bladder cancer 15 years primary site kidney cancer 15 years primary non-Hodgkin lymphoma 15 years primary leukemia 5 years primary site breast cancer 10 years primary site testicular cancer 10 years multiple myeloma 15 years primary site prostate cancer 15 years primary site ureter cancer 15 years primary site colorectal cancer 15 years primary site oesophageal cancer 25 years

The Bill refers to ‘employment as a volunteer’ (s 32A(3)(b) and 32A(4)).  Employment is said to include ‘engagement’ (s 32A(7)).

The first problem is that volunteers are not employed.  There is no deeming provision in the Bill.  The Workers’ Compensation and Rehabilitation Act 2003 provides for compensation for volunteers including volunteer firefighters.  It says (at ss 14 and 15) that WorkCover may enter into contracts of insurance to cover volunteer firefighters but a person is only entitled to compensation ‘while performing duties, including being trained, as a member of the rural fire brigade’ or as a volunteer fire fighter or volunteer fire warden.  Under that contract ‘the activity covered by the contract is taken to be the person’s employment; and (b) the party with whom WorkCover enters the contract is taken to be the person’s employer’ (s 12(3)).  One can infer that a court asked to apply the Bill (should it become an Act) would infer an intention to deem volunteer firefighters as employees.

Who is to be counted as a fire fighter is not clear.  A person can join a fire brigade and undertake an ancillary role, such as communications or catering or office manager – are they are a firefighter?  My correspondent does ask:

In your opinion, does Bill 2 prevent persons from joining a brigade to obtain cancer compensation without active participation?

The answer is ‘not clearly’.  One could join a brigade and serve for 15 years and claim to be eligible for compensation if they develop prostate cancer even if they have never been to a fire.  One can imagine that if one’s volunteer duties had been limited to working in the office, the insurer would argue that the volunteer was not a volunteer firefighter but that would be difficult if they have done the basic training and received a uniform.  This would raise the sort of issues that NSW has faced ((See see ‘Who is a firefighter in NSW?’ (November 30, 2012) and NSW workers compensation and when is an employee a firefighter? or a paramedic? (July 30, 2015)) so it would be up to a court to determine who is a firefighter.  If the volunteer is found to be a volunteer firefighter they would be eligible regardless of the number of fires they attended over the course of their volunteering.

Workers’ Compensation and Rehabilitation and Other Legislation Amendment Bill 2015

The second Bill is much more comprehensive which no doubt reflects its standing as a government Bill drafted, no doubt, by experienced Parliamentary Counsel.  Relevantly this Bill would, if passed, introduce a new Subdivision 3B dealing with injuries sustained by firefighters.   ‘Firefighter’ will be defined to include members of a rural fire brigade and ‘a volunteer fire fighter or volunteer fire warden engaged by the authority responsible for the management of the State’s fire services’ (s 36B).    It will be clear who is a volunteer fire warden, defining who is a volunteer fire fighter will again raise issues of what their key role is.   A person may, presumably, be a member of a fire brigade without ever intending to actually fight a fire as they may take on ancillary roles within the brigade.

The Bill will amend the various provisions dealing with volunteers to provide that volunteers are unable to get damages.  Damages are defined as ‘damages for injury sustained by a worker in circumstances creating, independently of this Act, a legal liability in the worker’s employer’ (Workers’ Compensation and Rehabilitation Act 2003 (Qld) s 10).  That is an injured worker is entitled to compensation under the Act, if they can show that for some other legal reason their employer would be liable to pay damages (what we really mean here is if they can establish the employer was negligent) they can also recover damages.  The Bill, if passed, would mean a volunteer can recover workers compensation but cannot sue the organisation for which they volunteer for damages (see Workers’ Compensation and Rehabilitation and Other Legislation Amendment Bill 2015 cl 14) but this would not extend to volunteer firefighters who could sue for damages if they develop one of the diseases listed in the table.  The table in this Bill is the same as the table in the Workers’ Compensation and Rehabilitation (Protecting Firefighters) Amendment Bill 2015 and reproduced above.

Apart from being a firefighter or member, there will be other qualifying conditions.  For employed firefighters they must have been employed for the number of years shown in column 2, above.  A volunteer firefighter must have attended at least 150 exposure incidents that is a fire where the firefighter ‘participates in extinguishing, controlling or preventing the spread of the fire’.  The Bill provides that in calculating the years of employment, only ‘periods during which the person is required, as part of the person’s employment as a firefighter, to attend exposure incidents’ are to be counted.  Employment as a firefighter but away from firefighting duties eg in community education or senior management, do not count if the employee is not require to attend fires.

The Bill contains relevant deeming provisions to ensure that the protection is extended to volunteers even if they are not employed.

Interestingly the presumption that the disease is caused by work as a firefighter is rebuttable in the second Bill.  That is if the first Bill were to become law and a firefighter met the qualifying conditions then the disease was caused by their firefighting career.  If the second Bill were to become law the disease is presumed to have been caused by their firefighting exposure unless it is shown that it was not so caused (s 36D(3)).

The Bill will not be retrospective that is it will not apply to firefighters diagnosed with a relevant disease before the Act commences operation (s 712).

My correspondent does say;

A key concern for me is that most of the propaganda at present includes references that Bill 1 contains a 10 year limitation to make claims for volunteers which I cannot derive from reading this instrument.

I too can’t see a 10 year limitation in the Bill but that may be a detail hidden in the Workers’ Compensation and Rehabilitation Act 2003 (Qld) or some statute of limitations hidden somewhere.  if there is such a limit it does not appear in this Bill.

Summary

The Government Bill is much more comprehensive and makes appropriate provision to ensure that volunteer firefighters are covered in the scheme.  Whilst it is clear they are meant to be dealt with in the Private Members Bill the reference to employment is ambiguous.  On the other hand, the Government Bill creates a rebuttable presumption that the listed disease is caused by a person’s exposure as a firefighter whilst the Private Members Bill determines the issue conclusively.    The Government Bill is much clearer in imposing requirements that a person is actually exposed to fire and not merely a member of a brigade in roles that may not include actual firefighting.    Limitations could be implied into the Private Members Bill by reference to the word ‘firefighter’ rather than ‘a member of a brigade’ but those limitations would have to be implied and would not doubt require a test case, such as those seen in NSW.

The reality is that a private members Bill is unlikely to see the light of day, so one would assume that is the government Bill, if either of them, that will become law.

This question is important because back in June 2012 the NSW Workers Compensation laws were changed to make it harder to qualify for compensation.  Police officers, firefighters and paramedics were exempt from the changed rules (see ‘Fire fighters and paramedics exempted from workers compensation changes’ (June 22, 2012).   It is important, therefore, for all parties to know whether an employee is a firefighter or paramedic as that makes a significant difference to their compensation rights. On 29 November 2012 the NSW Industrial Relations Commission gave a ruling in the context of an industrial dispute (see ‘Who is a firefighter in NSW?’ (November 30, 2012)).

The issue has now arisen in two compensation claims, both heard by Deputy President Roche of the Workers compensation Commission.  In Ware v NSW Rural Fire Service [2014] NSWWCCPD 33 (3 June 2014) he had to determine whether an employee of the RFS was a ‘firefighter’ and in State of New South Wales v Stockwell [2015] NSWWCCPD 9 (10 February 2015) he had to determine whether or not the employee was a paramedic.

Firefighter – Ware v NSW Rural Fire Service [2014] NSWWCCPD 33

Mr Ware was employed by the RFS as a mechanic.  Mostly he worked in the RFS workshops but on occasion he would have to be at the fire front to maintain the firefighting appliances: ‘When he attended the fire front, he was often as close to the fires as “the people holding the fire hoses”. Since 2001, he attended the fire front, to carry out emergency repairs on fire-fighting equipment, on about 31 occasions” [7].   As a result of his work he suffered industrial deafness.  With the 2012 amendments he would no longer be eligible for compensation as he did not meet a statutory threshold of a whole of person impairment of 10%. If he was a firefighter, that threshold did not apply.

The Deputy President found that Mr Ware was not a firefighter.  He said (at [42]-[46], [58]):

I have concluded that the legal meaning of firefighter corresponds with its normal grammatical (dictionary) meaning and there is nothing in the context, purpose or policy … that leads to a different conclusion. It follows that firefighter means “someone whose activity or employment is to extinguish fires, especially bushfires”.  As Mr Ware was employed as a mechanic, not a firefighter, he is only a firefighter … when he is engaged in providing support at the fire front during a fire.

The interpretation urged by Mr McManamey extends the meaning of firefighter from “someone whose activity or employment is to extinguish fires” to include someone “involved in the task of extinguishing fires”, however remote and indirect that involvement may be. Such an interpretation would result in the respondent’s receptionist being a firefighter. That is an artificial extension of the meaning of firefighter that is not justified by the words used, or by the context in which they appear [in cl 25 of Pt 19H of Sch 6 to the Workers Compensation Act 1987].

The argument that cl 25 directs attention to the type of employment, not the individual duties being carried out at the time of injury, does not assist Mr Ware. Mr Ware’s “type of employment” was that of a mechanic: he maintained and repaired equipment for use in fighting fires. Though it may be accepted that the maintenance of that equipment is necessary for the efficient operation of the respondent’s activities, that does not change the essential character or “type” of Mr Ware’s employment. He was and is a mechanic and, plainly, not a firefighter.

The argument that police officers are exempt, regardless of the activity in which they are engaged, does not advance Mr Ware’s position. The term police officer is defined in s 3 of the Police Act 1990 to mean “a member of the NSW Police Force holding a position which is designated under this Act as a position to be held by a police officer”. It follows that a person who meets that definition is exempt from the amendments, regardless of the activity in which he or she is engaged at the time of injury… There is no similar definition of a firefighter… there is no support for the argument that a person employed as a mechanic should, while working as a mechanic in a workshop, be considered a firefighter.

The Deputy President did agree that Mr Ware would be considered a firefighter ‘when he was repairing equipment at the fire front, which was an integral part of the job of extinguishing fires. If, at those times, workers such as Mr Ware were injured they would be exempt from the amendments and entitled to compensation according to the terms of the applicable legislation’ [64].  With industrial deafness however, it was not a specific injury that could be attributed to the work on the fire ground nor did the Act allow for there to be a finding as to what part was caused when firefighting ad what part was caused in the workshops.

Conclusion

Even though employed as a mechanic, when working on the fire ground ‘an integral part of the job of extinguishing fires’ Mr Ware would be considered a firefighter.   That would affect his compensation rights if injured on that fire ground but did not assist in this case because of the nature of industrial deafness.  The fact that he was employed by a fire service and would, on occasions, undertake firefighting duties did not change the substantive nature of his employment from ‘mechanic’ to ‘firefighter’.

Paramedic – State of New South Wales v Stockwell [2015] NSWWCCPD 9

Mr Stockwell was employed as a paramedic when he joined NSW Ambulance in 1996.   In 2000 he received a ‘Diploma Paramedic Science (Pre-hospital Care)’ [sic].  By the start of 2001 Mr Stockwell’s employment changed and he moved into the Northern New South Wales Operations Centre at Newcastle.  Deputy President Roche summed up relevant facts at [7]-[8]:

Mr Stockwell’s primary role as an operations centre officer was to co-ordinate emergency and routine response for ambulance officers and patient transport officers in a given geographic area. He gave evidence that, relying on his skills and knowledge as a paramedic, he gave medical advice to emergency service workers and members of the public.

As a result of his work as an operations centre officer, Mr Stockwell suffered a psychological injury, with a deemed date of injury of 31 January 2007, which was (presumably) the date of his incapacity and the date on which he stopped working. Mr Stockwell ceased employment with the appellant on 10 August 2007.

On 14 November 2012 the workers compensation insurer (and note that it was the insurer, not the Ambulance Service) advised Mr Stockwell that as he was not a paramedic at the time of his injuries, his future entitlement to compensation would be determined by the ‘new’ (2012) rule.  So the question for the Commission was ‘At the time of his injury, 2007, was Mr Stockwell still a ‘paramedic’?’    The insurer argued that ‘As Mr Stockwell was not “rostered on-road and not performing ‘in the field’ emergency/casualty response duties”, he was not “an operational paramedic”.’ [25]

The matter was originally heard by an arbitrator who determined that ‘Mr Stockwell was a paramedic employed by the appellant and that he was doing the work of a paramedic, which included giving advice in emergency situations to injured members of the public, emergency services personnel and others. [The arbitrator] did not consider it necessary that, to be a paramedic, Mr Stockwell be at the scene of an emergency’ [29].  The insurer appealed.

The arbitrator had found that ‘[Mr Stockwell’s] employment required him to be a qualified paramedic”’ [87].   Deputy President Roche held that this was not what the evidence showed.   The Award only required that a person in this position ‘holds a first aid certificate, with re-certification every three years for non-uniformed employees’.  Mr Stockwell did maintain his paramedic qualifications but it was not necessary for him to do so as part of his work.   As the Deputy President said (at [88]):

Mr Stockwell’s evidence does not establish that the terms of his employment required him to be a qualified paramedic, at least while he worked in the operations centre. His evidence was merely to the effect that, to renew his “paramedical qualifications”, he was required to do a re-certification “as a paramedic every two to three years”. This evidence was merely that Mr Stockwell did in fact maintain his qualifications. It did not justify a conclusion that it was a term of Mr Stockwell’s employment, at the operations centre, that he be a qualified paramedic. This conclusion is reached independently of the evidence in the Position Description, but is consistent with it.

Mr Stockwell argued that he ‘was classified as an “ambulance officer operations centre grade 2 (with intensive care paramedic qualifications)”, and was therefore a paramedic’.  He relied on his payslips to support that claim.   Mr Stockwell had been employed as an Ambulance Officer Grade 2 and had that been his classification at the time of his injury ‘there seems little doubt that he would have been entitled to be described as a paramedic and would be exempt from the consequences of the amendments introduced by the 2012 amending Act. This would follow regardless of the duties he actually performed’ [93].  The problem was that job classifications had changed.  There were two classifications “Ambulance Operations Centre – Non Paramedic” and “Ambulance Operations Centre Paramedic”.   The evidence provided did not describe Mr Stockwelll in either of those terms. The arbitrator had said that Mr Stockwell was ‘clearly a paramedic employed by the [appellant], that being the description on his pay slips’.  The Deputy President found that this was an error.  The error was not finding that he was employed as a paramedic, but it was an error to say that this was the description on his payslip.

The arbitrator found that Mr Stockwell’s duties of giving ‘… advice, in emergency situations, to members of the public, emergency services personnel and others’. He said (at [32]) that the fact that Mr Stockwell was not physically present at the scene was immaterial and it was:

“readily apparent that [the] procedure would have been that [Mr Stockwell] would have been advised of the victim’s condition, injuries and vital signs, and that he would have given advice as to the appropriate treatment, directed [the] person to whom he was talking as to how to actually administer the treatment and how to evaluate its effectiveness. All of this was done in real time. It involved coordinating the appropriate diagnosis and treatment of critically injured people, and [Mr Stockwell] was an integral and most important part of this process.”

The Arbitrator added (at [33]) that Mr Stockwell’s “employment as a paramedic is congruent with the context and wording of clause 25 and [Mr Stockwell’s] substantive position was that of a paramedic”. ([99]-[100]).

It should be noted that the issue was not whether Mr Stockwell was performing paramedic type duties, but whether he was employed as a paramedic.   The Deputy President looked at the relevant award that did contain a definition of ‘paramedic’ and said (at 125):

It follows that a paramedic who meets the definition of a paramedic in the Ambulance Officers’ Award, and who works in the operations centre, is a paramedic … regardless of the nature of the duties he or she performs. The question of whether Mr Stockwell gave clinical advice, as a paramedic, or merely directed ambulances to specific places does not arise. The issue is whether Mr Stockwell was, at the time of his injury, employed as a paramedic.

If the definition of paramedic in the award was not the relevant definition, then according to Deputy President Roche, the normal meaning of the word applied.  He said (at [132]-[134]):

The Macquarie Dictionary defines a paramedic as “a person who provides specialist primary care to the injured or sick” and “a person who performs paramedical services”. Paramedical is defined to mean “of or relating to healthcare workers other than doctors, dentists, nurses, etc., who have special training in the performance of supportive health treatments”.

A worker can provide specialist primary care to the injured or sick without having to be “in the field” or directly “hands on”. Provided they are qualified to give such advice, a person who provides the advice over the phone is just as much a paramedic as the person at the scene of the particular incident where the care is being provided.

Therefore, if Mr Stockwell gave the kind of advice that he gave evidence of at the arbitration, and if it is found that, at the time of his injury, he was qualified to give that advice, that is, if he had a “clinical certificate to practice” as a paramedic, he is a paramedic..

The problem in the Operations Centre was that the award anticipates that there are both paramedics and non-paramedics working together.  The insurer had argued that it didn’t matter if a person was qualified as a paramedic before they commenced in the operations centre, once there it was not a paramedic job because, if it was ‘… it would be unnatural and unrealistic for two workers working side-by-side in the same role, to have different entitlements depending on their qualifications “prior” to their employment’ [126].

According to the Deputy President this argument ‘… ignored the Ambulance Officers’ Award, which defines “paramedic” and makes express provision for a paramedic to work in the operations centre and to be paid an additional allowance while doing so’ [126].  Thus, the Ambulance Officers’ Award expressly acknowledges that two workers, with different qualifications, working side-by-side in the same role, will receive different remuneration. It is consistent and appropriate that such workers also come under different workers’ compensation regimes.

Outcome

The appeal was successful because the arbitrator had made errors.  The arbitrator had determined that Paramedic qualifications were an essential requirement of Mr Stockwell’s employment in the coordination centre and that his payslips showed he had been employed as a ‘paramedic’.  The Deputy President said those findings were not supported by the evidence so the matter had to be re-determined.

The Deputy President did not say that Mr Stockwell was not a paramedic, only that the arbitrator had misunderstood the evidence. The essential question for the Deputy President was ‘Was Mr Stockwell employed as a paramedic?” If the answer to that question was ‘yes’ then it did not matter whether his injuries were sustained when performing traditional paramedic duties of providing health care to the sick and injured.   If he was employed as a paramedic, as defined in the award or just in the dictionary, then the 2012 amendments do not apply to his claim.

Is this inconsistent with Ware?

This decision is not inconsistent with Ware, discussed above.  If Mr Ware had been employed as a firefighter the 2012 amendments would not have applied to him, regardless of the duties he was performing at the time of his injury. As Deputy President Roche said [in Ware at [53]) ‘a member of the NSW Fire Brigade is a firefighter. Such a person would be a firefighter whether injured fighting a fire or in some other work situation away from a fire. However, Mr Ware is not such a person. Looking at his substantive position … he is plainly not a firefighter’.

In Mr Ware’s case he was not employed as a firefighter so the exemption from the 2012 amendments would only apply if he was actually engaged in firefighting that is maintaining the equipment on the fire ground as an essential contribution to the firefighting effort.   If Mr Stockwell was employed as a paramedic then he was a paramedic and it would not matter whether he was injured when providing emergency medical care or some other duty.  The critical issue in both cases was the substantive nature of the persons employment rather than the actual duties performed.

Would registration have helped?

The answer here is ‘no’.  Mr Stockwell could have been a registered paramedic (if such a position existed) but that would not have answered the question of his current employment.  A registered paramedic could be employed as a cleaner but their registration won’t change their compensation entitlements.  If there was paramedic registration the issue would be resolved if being a registered paramedic was an essential requirement for the particular job.

On 29 March 2010, Commissioner Deegan of the Commonwealth’s Fair Work Australia ordered that ACT paramedics be reclassified ‘from Technical Officers to Health Professionals’ (‘ACT ICP’s recognised as Health Professionals’, Paramedics Australasia, 19 April 2010).  Significantly, I am told, that change brought with it ‘significant pay increases to ACT paramedics, I believe the average increase was in the vicinity of 21% on base rate’.  Presumably this change in status was intended to reflect on the increased skill and independence that was being demonstrated by paramedics. (See also the decision of the NSW Industrial Relations Commission in Operational Ambulance Officers (State) Award [2015] NSWIRComm 17 which has determined that there should be a new employment classification of ‘Critical Care Paramedic (Aeromedical)’ (with a higher pay scale) to reflect ‘the changed work, and the skills and responsibility’ of ‘paramedics performing work in the Aeromedical Retrieval Services of the Ambulance Service of NSW’.)

So what I hear you ask? Or at least that is what my correspondent from the ACT asks. He says:

The change occurred with little change in work practice for the paramedics and with no clear definition of changes that may exist under law or its obligations with relation to the individuals responsibilities and that of on organisations responsibilities in relation to say a claim of negligence.

In essence, does the recognition change who is liable for any negligence? The answer is ‘no it doesn’t’.

Vicarious liability, where an employer is liable for the negligent performance of an employee is a function of the employment relationship, or a relationship where the person is so closely involved in the employers business that the employer should be liable, even if strictly speaking, the negligent defendant is an independent contractor (see Albrighton v RPA [1980] 2 NSWLR 542, Stevens v Bodribb Sawmilling (1986) 160 CLR 16, Ellis v Wallsend District Hospital (1989) 17 NSWLR 553, Hollis v Vabu, (2001) 207 CLR 21).

What does it mean to be a professional? Some would say that a professional as someone who gets paid as opposed to an amateur or volunteer but that is, of course, insulting to the many volunteers who provide a very professional service.

Traditionally professions were distinguished from ‘trades’ but I’m sure there are many electricians and plumbers who would regard themselves as professional both because it’s their job, unlike home handypersons, and because they do it well and with regard to their clients best interests.

There are iconic professions in particular the legal and medical professions and they have been joined by many others. What are the defining characteristics of a ‘profession’?

In Profession of Medicine: A Study of the Sociology of Applied Knowledge (University of Chicago Press 1988, pp 3-4) Eliot Freidson says:

… it is difficult to find very much agreement on a definition of the word “profession”. This is so for a number of reasons. First, the word is evaluative as well as descriptive. Virtually all self-conscious occupational groups apply to themselves at one time or another to flatter themselves or to try to persuade others of their importance. Occupations to which the word has been applied are thus so varied as to have nothing in common save a hunger for prestige. This state of affairs has led Becker, for one, to claim that it is hopeless to expect the word to refer to more than a social symbol which people attach to some occupations but not to others.

Matthews (Jennifer H. Matthews, ‘Role of Professional Organizations in Advocating for the Nursing Profession’, Online J Issues Nurs. 2012;17(1) ) writing more recently, says:

… the following characteristics have come to characterize a profession (Bucher & Strauss, 1961; Cogan, 1955; Hillman, 2005; Merton, 1958):

• a basis in systematic theory – a distinct way of viewing phenomena surrounding the knowledge base of the profession
• specialized competencies and practitioners who are effective in practicing the professional role
• dedication to raise the standards of the profession’s education and practice
• availability of professional education as a life-long process and mechanisms to advance the education of professionals established by the profession
• the presence within the profession of individuals with varied identities and values forming groupings and coalitions that coalesce into unified segments – known as specialties with specific missions
• authority recognized by society and the clientele of the profession
• approval of the authority sanctioned by a broader community or society
• a code of ethics to regulate the relationships between professionals and clients
• self-regulation that protects practitioners and supports disciplinary criteria and actions to censure, suspend, or remove code violators
• a professional culture sustained by formal professional associations, such that the membership may develop a biased perspective through their profession’s lenses.

Paramedicine may be moving toward professional status with the growth of the university training which involves the development and application of a systematic theory and specialised competencies as well as the development of research to allow the ‘profession’ to take responsibility for the education of new professionals, but paramedicine does not yet demonstrate may essential features of a profession. In particular, paramedics do not have a separate ‘code of ethics’ nor are they responsible for self regulation. Paramedics are paramedics only when they are employed.  It is their employer that determines their scope of practice and that is responsible for their professional discipline.

If paramedics were registered like doctors, nurses, chiropractors or any of the other 14 registered health professionals there would be a Paramedic Board that would set standards of practice. The paramedics right to practice would be determined by the Board and regardless of legal liability, it would be the Paramedic Board that would determine whether or not a paramedic was fit to practise.   A professional paramedic would have duties and obligations to his or her patient above and perhaps in conflict with duties to his or her employer. That is not the case at the moment.

I am unable to access the decision of Commissioner Deegan from May 2010 so I’m not sure in what context he was using the term ‘profession’ or what it meant for the purposes of the relevant award, but it did nothing to change the legal status of paramedics.

Conclusion

Paramedics are employees and whilst they are employees their employer is vicariously liable should they perform their duties negligently. Nothing in the changes of nomenclature in the award would or could change that.

Even if paramedics were registered health professionals, their employer would remain vicariously liable for their negligence, just as employers are liable for the negligence of doctors and nurses. What would be different is that regardless of civil liability, the relevant professional board can discipline a registered health professional if their conduct falls below acceptable professional standards. For paramedics their professional standing is, at the moment, determined solely by their employer.   Again nothing in the change of title in the award affects that.

So in answer to my correspondent’s question, did the change of tile affect ‘the individuals responsibilities and that of on organisations responsibilities in relation to say a claim of negligence?’ the answer is ‘no’.   And I regret to say that in my view, although paramedics are professional, in the absence of professional registration they are not members of a profession.

For those that are interested, I will be addressing these issues in a presentation at the Australian and New Zealand College of Paramedicine (ironically formerly the Australian College of Ambulance Professionals) Annual Conference in Sydney on 15 August. 2015

Paramedics and Confidentiality number 1 (posted on March 26, 2015) can be found here.

The first post under this heading involved questions of transmissible diseases and whether a paramedic treating a person from a fight or MVA of the disease status of another person involved in the same incident. Today’s question involves evidence of crime and comes from a Victorian paramedic:

If in the discharge of my duties as a paramedic, I become aware that a patient for whom I have direct care, is or may have recently committed a criminal offence, and my knowledge of this act is solely based upon my interactions with this person as my patient, does confidentially/privacy provisions apply? This question was raised with me relating to a specific example relating to alleged immigration offences (Visa Overstay/Working without appropriate Visa). I don’t think anyone would have an issue with the reporting of a case of suspected Terrorist activity, domestic violence or suspected Child abuse (Paramedics in Victoria are not covered by “compulsory reporting” laws).  However am I breeching any laws (Privacy Act etc) by contacting the appropriate authorities relating to this offence, or other offences?

I think the starting point is to remember the reason for patient confidentiality. People need to be encouraged to tell their health care professionals, including paramedics, an honest history in order to get the appropriate treatment.   They will be unwilling to do so if the disclosure is likely to be used against them. If paramedics start reporting all the criminal conduct they suspect it would terrible damage to the trust that paramedics enjoy and the health care they can provide.

Where a state agency, like Ambulance Victoria, collects personal information about a person then that information must be protected and used only for the purposes for which it was obtained (Privacy And Data Protection Act 2014 (Vic)).   A person who discloses to a paramedic that they have taken an overdose of illegal drugs is providing that information in order to get effective treatment. It would be both unnecessary and unhelpful to report that to police; but other information will be in different categories.

• A paramedic may simply observe evidence of a crime, rather than have it disclosed. For example a paramedic may be called to a person with chest pain and whilst attending them see that there is child pornography displayed on the person’s computer screen. The person is not ‘giving’ confidential information to the paramedic, in a way that a person who discloses their history is, this is just something the paramedic observes.
• A paramedic may be treating someone who discloses a serious crime as part of her history. For example they may be called to assist a woman who reveals, in confidence that she has been kept in sexual servitude (contrary to the Crimes Act 1958 (Vic) s 60AB). This history is relevant to explain the nature of her injuries and aids in both diagnosis and treatment but the woman asks that the paramedic not tell anyone for fear of repercussions.
• A paramedic may suspect that a person is, as my correspondent suggests, guilty of some ‘immigration offences (Visa Overstay/Working without appropriate Visa)’.

Subject to the discussion below, there is no obligation to report a crime to Victoria Police. The Crimes Act 1958 (Vic) s 326 says

Where a person has committed a serious indictable offence, any other person who, knowing or believing that the offence, or some other serious indictable offence, has been committed and that he has information which might be of material assistance in securing the prosecution or conviction of an offender for it, accepts any benefit for not disclosing that information shall be guilty of a summary offence and liable to level 8 imprisonment (1 year maximum).

A paramedic who is paid not to disclose an offence that has been revealed by the patient would be guilty of this offence; but a paramedic who doesn’t disclose an offence because the patient has asked him or her not to, or because he or she believes it would not be in the patient’s interests would not be.

A ‘serious indictable offence’ is an offence that has a maximum penalty of 5 years imprisonment, or more (s 325).

Compare the Victorian section to the Crimes Act 1900 (NSW) s 316 which says

If a person has committed a serious indictable offence and another person who knows or believes that the offence has been committed and that he or she has information which might be of material assistance in securing the apprehension of the offender or the prosecution or conviction of the offender for it fails without reasonable excuse to bring that information to the attention of a member of the Police Force or other appropriate authority, that other person is liable to imprisonment for 2 years.

No issue of ‘benefit’ there, though if the person does accept a benefit to withhold the information, the maximum penalty increases to 5 years. I would anticipate however that a paramedic that receives information ‘in confidence’ would have a reasonable excuse for withholding the relevant information should he or she wish to do so.

There is an old fashioned offence of ‘misprision of a felony’. That most authoritative source of legal knowledge, Wikipedia, says:

Misprision of felony was an offence under the common law of England… It consisted of failing to report knowledge of a felony to the appropriate authorities… With the development of the modern law, this crime has been discarded in many jurisdictions,

I’m not going to try and discover whether misprision of a felony remains an offence in Victoria (or any other Australian state) but given that the distinction between felony and misdemeanour has been abolished (Crimes Act 1958 (Vic) s 322B) and Victoria has specific provisions regarding disclosing crimes (ss 326-330) I’m going to accept that this ancient common law offence is not relevant.

My correspondent did says that ‘Paramedics in Victoria are not covered by “compulsory reporting” laws’. This refers to laws that impose an obligation on health professionals and others to report concerns about children at risk; but there is (since 27 October 2014) a general obligation on every adult to report child sexual assault in Victoria. The Crimes Act 1958 (Vic) s 327(2) says:

… a person of or over the age of 18 years (whether in Victoria or elsewhere) who has information that leads the person to form a reasonable belief that a sexual offence has been committed in Victoria against a child under the age of 16 years by another person of or over the age of 18 years must disclose that information to a police officer as soon as it is practicable to do so, unless the person has a reasonable excuse for not doing so.

All of this discussion talks about the obligation (or lack of obligation) to report offences, but what of the question ‘am I breeching any laws (Privacy Act etc) by contacting the appropriate authorities relating to this offence, or other offences?’ I’ve already mentioned the Privacy And Data Protection Act 2014 (Vic) which incorporates the national privacy principles into Victorian law. Those principles govern the collection, use and storage of private information, but release of that information is not contrary to the principles where

… the organisation has reason to suspect that unlawful activity has been, is being or may be engaged in, and uses or discloses the personal information as a necessary part of … reporting its concerns to relevant persons or authorities (Information Privacy Principle 2, [2.1(e)]).

So where does that leave the (Victorian) paramedic?

1. There is no obligation to report one’s suspicions unless those suspicions are that a person over the age of 18 has committed a sexual offence against a person under the age of 16. That suspicion could come from the patient who may be either the offender, or the victim, or from what is observed at the scene. In any event those suspicions should be reported to police.
2. For other offences it’s a difficult balance of harm v benefit. Consider who is being harmed? If the only person being harmed is the patient (eg if they admit to taking drugs) why would you disclose that? If, on the other hand, there is a risk to others, one has to consider how serious the risk? Is the person supplying drugs to their friends, running a drug ring or planning a terrorist offence? Clearly the more serious the threat, the more the balance swings in favour of disclosure.
3. Paramedics report things they observe all the time, for example if a paramedic went to a house and found the patient had died in unexpected circumstances they would call the police regardless of other people’s objections. Equally fire fighters call the police when they attend an explosion and discover a meth lab. If a paramedic walks in on an obvious crime scene they should call the police and are not disclosing material revealed in confidence.
4. Where the material really is revealed in confidence as part of the treatment but reveals the commission of a serious offence, particularly where the person making the disclosure is disclosing they are a victim of crime but do not want it reported, I would suggest that the paramedic should record that information on their patient record, bring it to the attention of a senior officer. It is the ‘organisation’ that must ensure it uses and maintains the records in accordance with the Privacy Principles and it is the organisation that may disclose that data to police under Principle 2.1(e).
5. Putting all that aside, if a paramedic formed the view that there was an immediate and imminent risk of serious harm or serious offending, if someone’s life is at risk (whether you can identify the someone or not) ring the police.   No privacy principle or principle of confidentiality is going to allow a person to ‘hide’ if what is being revealed are serious criminal offences such as sexual assault, murder, terrorism, drug manufacturing etc.

A correspondent from Queensland wrote:

I read your post about the liability being found against the NSW Ambulance [see “Liability for motor vehicle accident – NSW ambulance on urgent duty” (July 6, 2015)] at 5:43 pm, and it reminded me of a matter a colleague told me about.

There was a minor traffic crash between a Police Vehicle and a civilian car, where the police vehicle has commenced a u-turn, and the civilian vehicle has hit the side of the police vehicle at low speed, leaving a dent.

The driver of the police vehicle has stated they were doing the u-turn to pull over another vehicle to administer a RBT, therefore providing them protection under the Transport Operations (Road Use Management) Act 1995 (Qld) s 144 (I assume that this is the section that applied as the Transport Operations (Road Use Management—Road Rules) Regulation 2009 are a regulation under this Act).

The officer that was the driver was then issued a traffic infringement by the QPS, apparently following a magistrate’s court decision that the defence did not apply in the case of a potential offender.

My question is are you aware of the details of this predecessor case, and would the implications be that the Police effectively are unable to intercept any vehicles unless they are seen committing an offence? Would this then remove the random breath testing power and return to the probable cause requirement?

Section 144 of the Transport Operations (Road Use Management) Act 1995 (Qld) says:

Provisions of this Act about offences (other than section 79 and 80) do not apply to a police officer while exercising a power, or performing a function, under this or another Act.

Sections 79 and 80 relate to driving and alcohol and are not relevant. There are many provisions in this Act the create offences these tend to be more significant offences rather than the daily driving matters. The Australian Road rules are incorporated into Queensland wall by the Transport Operations (Road Use Management—Road Rules) Regulation 2009 (Qld). Rule 38 says:

A driver making a U-turn must give way to all vehicles and pedestrians.

Rule 305 as the traditional and familiar exemption for police. It says:

(1) A provision of this regulation does not apply to the driver of a police vehicle if—

(a) in the circumstances—

(i) the driver is taking reasonable care; and

(ii) it is reasonable that the provision should not apply; and

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

(2) Subsection (1)(b) does not apply to the driver if, in the circumstances, it is reasonable—

(a) not to display the light or sound the alarm; or

(b) for the vehicle not to be fitted or equipped with a blue or red flashing light or an alarm.

Given the police were doing a U-turn in order to perform random breath test this hard to believe that they were displaying “a blue or red flashing light or sounding an alarm”. I can understand why a magistrate would hold that it is not reasonable for rule 305 to apply when police are not seeking to arrest an offender or otherwise engage in urgent duty. A genuine random breath test when there is no cause to suspect that the driver is affected by alcohol would not seem to warrant the application of rule 305.

As to the assumption that the exemption in section 144 applies, this cannot be the case. If it was there would be no work for rule 305 to do and give police a blanket exemption from all the road rules in all circumstances. That is clearly not Parliament’s intention. Section 144 will apply to offences that are set out in the Act whereas rule 305 will apply to offences set out in the regulations.

The implication is not that police “are unable to intercept any vehicles unless they are seen committing an offence” rather they are not allowed to unreasonably breach the Road rules in order to stop a driver for the purposes of random breath testing. The power to require a person to undergo a breath test is found in the Transport Operations (Road Use Management) Act 1995 (Qld) s 80. The power to require a person to stop the vehicle in order to undergo a breath test is found in the Police Powers and Responsibilities Act 2000 (Qld) s 60.

Please do often have to breach the road rules to set up random breath testing stations but they may close a lane, park their vehicles in what would otherwise be illegal situations and do other things. It should be noted that rule 305 requires them to take reasonable care and that the relevant provision should not apply in circumstances. It is almost axiomatic that if there is an accident the driver was not taking reasonable care. It is also open for a magistrate find that it is not reasonable to exempt a police vehicle from the rule requiring to give way when doing a U-turn’s but at the same time allow that the rule against stopping or parking on a motorway should not apply while performing RBT.

Conclusion

I don’t think too much to be read into this. A police officer who does a U-turn in order to conduct a random breath test and is involved in a collision can’t quite reasonably expect to receive a Traffic Infringement Notice.  Equally a police officer who does a U-turn in order to conduct a random breath test but was not involved in a collision could quite reasonably expect not to receive a Traffic Infringement Notice. A decision of a magistrate does not create a binding precedent and without knowing the earlier case an assertion by magistrate that will create five did not provide an exemption in a particular case would be limited to the facts of that case. Even so I can understand why a magistrate would find that it was not reasonable for rule 305 to apply with the driver of a police vehicle exposed others to danger when not seeking to apprehend an offender. If that did not apply police to do a U-turn at any point just because it was more convenient than proceeding by some other route.

Police are able to proceed with random breath testing but must take reasonable care when doing so and if their actions are in breach of the road rules they must take reasonable care when doing so. As with all emergency workers the ultimate decision of whether or not it is reasonable to exempt the police from particular road rule lies with the court.

This question comes from a member of the NSW State Emergency Service.

I have been made aware that current Workers Compensation Legislation may discriminate against volunteers in terms of entitlements compared to paid workers. For example volunteers are not entitled to reimbursement of re training costs, they are not eligible for workers compensation benefits until liability is determined (i.e no provisional liability provisions apply) and there is no obligation or mechanism for an employer to provide the volunteer with suitable duties when they are certified as fit for suitable duties whilst they are recovering.  This potentially leaves volunteers who are injured in their work with the volunteer organisation out of pocket and exposed to considerable personal expenses and costs whilst their claim is being assessed.

Would you be able to confirm, clarify this anomaly which I find perplexing considering the new WHS legislation was designed to ensure all ‘workers’ had the same protections and obligations ?

We all know by now that the Work Health and Safety Act 2011 (NSW) and its equivalent in most other states and territories has expanded the definition of worker to include volunteers. The important point to note however, is that the Work Health and Safety Act and workers compensation are not the same thing. The inclusion of volunteers in the definition of worker in the Work Health and Safety Act only applies to that Act (see “What does it mean to be a ‘worker’” February 19, 2015, )

In New South Wales workers compensation is governed by the Workers Compensation Act 1987 (NSW) and the Workplace Injury Management and Workers Compensation Act 1998 (NSW). These Acts provide for compensation for people injured in the course of their employment. For volunteer firefighters and emergency service workers the Workers Compensation (Bush Fire, Emergency and Rescue Services) Act 1987 (NSW) extends some of the workers compensation provisions to volunteers even though they are not employees of the fire or emergency service for which they volunteer.

Sections 10 (for firefighters) and 26 (for emergency service and rescue association workers) say that a volunteer firefighter, emergency service worker or rescue association worker:

… who has received an injury (and, in the case of …[their death, their dependants]) shall be entitled to receive compensation as follows:

(a) where death results from the injury-the compensation payments prescribed by paragraphs (a) and (b) of section 25 (1) of the Principal Act,

(b) where total or partial incapacity for work results from the injury-the weekly payments of compensation prescribed by Division 2 of Part 3 of the Principal Act,

(c) where medical or related treatment, hospital treatment, occupational rehabilitation service or ambulance service becomes necessary as a result of the injury-the benefits prescribed by Division 3 of Part 3 of the Principal Act,

(d) where the worker receives an injury mentioned in the Table to Division 4 of Part 3 of the Principal Act-the compensation prescribed by that Division (including compensation for any pain and suffering resulting from that injury).

The ‘Principal Act’ is the Workers Compensation Act 1987 (NSW) (see Workers Compensation (Bush Fire, Emergency and Rescue Services) Act 1987 (NSW) s 3, definition of ‘Principal Act’).

• Section 25 of the Principal Act provides for lump-sum payments for the death of a worker.
• Division 2 of Part 3 of the Principal Act provides for ‘Weekly compensation by way of income support’.
• Division 3 of Part 3 of the Principal Act provides for ‘Compensation for medical, hospital and rehabilitation expenses etc’.
• Division 4 of Part 3 of the Principal Act deals with ‘Compensation for non-economic loss’ (ie awards to reflect the pain and discomfort caused by injuries).

Let me return to the original question where my correspondent said that, as he understands it, volunteers are:

• not entitled to reimbursement of re training costs,
• not eligible for workers compensation benefits until liability is determined (i.e no provisional liability provisions apply) and
• there is no obligation or mechanism for an employer to provide the volunteer with suitable duties when they are certified as fit for suitable duties whilst they are recovering.

Training costs

Volunteers are entitled to compensation for rehabilitation expenses under ‘Division 3 of Part 3 of the Principal Act’ (Workers Compensation (Bush Fire, Emergency and Rescue Services) Act 1987 (NSW) ss 10(c) and 26(c)).  Division 3 of Part 3 says (at s 60) the ‘employer’ (in this case WorkCover as the insurer for their emergency service) is to ‘pay, in addition to any other compensation under this Act, the cost’ of a necessary workplace rehabilitation scheme which is

a return-to-work program with respect to policies and procedures for the rehabilitation (and, if necessary, vocational re-education) of any injured workers of the employer. An employer’s return-to-work program must not be inconsistent with the injury management program of the employer’s insurer and is of no effect to the extent of any such inconsistency’ (Workers Compensation (Bush Fire, Emergency and Rescue Services) Act 1987 (NSW) ss 10(c) and 26(c), Workers Compensation Act 1987 (NSW) ss 59 and 60 and the Workplace Injury Management and Workers Compensation Act 1998 (NSW) s 52).

These provisions would cover ‘training costs’ if they were necessary as part of a return to work program.

Provisional Liability

This is governed by the Workplace Injury Management and Workers Compensation Act 1998 (NSW).  Under that Act a workers compensation insurer has to commence weekly payments to an injured worker within 7 days of receiving the claim (ss 267, 274 and 275). The insurer can also accept provisional liability for medical expenses up to $5000 (s 280).  Do these provisions apply to a volunteer emergency service worker?

Both the Workers Compensation (Bush Fire, Emergency and Rescue Services) Act 1987 (NSW) and the Workers Compensation Act 1987 (NSW) set out entitlement to compensation, but not the process of making a claim.  The claims process is provided for in the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (see Workers Compensation (Bush Fire, Emergency and Rescue Services) Act 1987 (NSW) s 29).  It follows that Chapter 7 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW), dealing with claims and including the provisions on provisional liability must also apply to claims under the Workers Compensation (Bush Fire, Emergency and Rescue Services) Act 1987.

Suitable duties

The obligation upon an employer to provide suitable duties for an employee is found in the Workplace Injury Management and Workers Compensation Act 1998 (NSW) s 49.  That section says:

If a worker who has been totally or partially incapacitated for work as a result of an injury is able to return to work (whether on a full-time or part-time basis and whether or not to his or her previous employment), the employer liable to pay compensation to the worker under this Act in respect of the injury must at the request of the worker provide suitable employment for the worker.

This section is not picked up by the Workers Compensation (Bush Fire, Emergency and Rescue Services) Act 1987 presumably because the fire or emergency service is not the volunteer’s employer and could not provide that alternative work.   I do note however that WorkCover, administering the compensation scheme for volunteers, does have to provide workplace rehabilitation services (as discussed, above) and would have to make up the loss of income (subject to the various weekly limits in the 1998 Act).

Given that the volunteer is not injured by their employer, the employer could not be bound by s 49 so could, presumably move to dismiss the employee/volunteer if they are no longer able to do their work. If, however, the employees retraining costs and/or lost income are being met by the Emergency and Rescue Workers Compensation Fund, the employee may have grounds to allege that such action constitutes an ‘unfair dismissal’ (Fair Work Act 2009 (Cth) ss 379-405).  That is something that would have to be considered on a case-by-case basis.

Conclusion

My correspondent wrote and said

I have been made aware that current Workers Compensation Legislation may discriminate against volunteers in terms of entitlements compared to paid workers. For example volunteers are not entitled to reimbursement of re training costs, they are not eligible for workers compensation benefits until liability is determined (i.e no provisional liability provisions apply) and there is no obligation or mechanism for an employer to provide the volunteer with suitable duties when they are certified as fit for suitable duties whilst they are recovering.

It is my opinion that volunteers

1. Are entitled to have WorkCover pay for ‘necessary workplace rehabilitation’ which could include retraining;
2. The provisional liability provisions of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) do apply to claims for compensation under the Workers Compensation (Bush Fire, Emergency and Rescue Services) Act 1987 (NSW); and
3. There is no obligation upon the employer, WorkCover or the emergency service for which the member volunteers to provide ‘suitable employment’ for the injured volunteer/worker.

Warning and disclaimer

No-one should ever rely on the general discussion that takes place on this blog in lieu of particular advice on their particular circumstances.  That is particularly true in the context of personal injuries claims that are complex (as this answer shows) and depend very much on the facts of each case. Volunteers seeking compensation under the Workers Compensation (Bush Fire, Emergency and Rescue Services) Act 1987 (NSW) should understand that the determination of compensation is not a matter for their service but WorkCover. WorkCover will, like any insurer, seek to apply the law and ensure that it pays only that which it is required to pay. Accordingly any volunteer who is dissatisfied with a decision of WorkCover should seek independent legal advice. There are many solicitor firms that specialise in workers compensation and personal injuries compensation. Most of these firms offer a free first consultation and also operate on a ‘no win no fee’ basis. Any volunteer has been injured should consider consulting one of these firms for specific advice on their rights and entitlements and to ensure they comply with these time limits and processes must be met in making a claim.

This question came to me for a paramedic who, given his profession, was clearly asking just a matter of intellectual interest rather than practical application. My correspondent wanted to know who is the combat agency for responding to a fire on a boat moored in Sydney Harbour; is it Fire and Rescue New South Wales or the Port Authority of New South Wales?

New South Wales Fire and rescue is responsible for providing firefighting services within a fire district. A fire district has to be proclaimed and generally follows local government boundaries. A map showing the boundaries for Sydney City Council (http://www.cityofsydney.nsw.gov.au/council/our-responsibilities/areas-of-service) shows that the Council boundaries do not extend into the harbour with perhaps some exception at the Finger Wharf at Woolloomooloo Bay. The Fire Brigades Act 1989 (NSW) does not however say that the fire service is to be the combat agency for fires in those areas (compare that to the State Emergency Service Act 1989 (NSW) s 8).

The Maritime Services Act 1935 (NSW) s 13S says:

“The Board may provide and maintain such plant, apparatus and things as it deems necessary for the rescue and resuscitation of drowning or apparently drowned persons and for the recovery of drowned persons and for the extinguishing of any fire on vessels or on any property vested in it or under its control or management and may employ such persons as it deems necessary for the proper operation and use thereof.”

That says the board may have the equipment and certainly doesn’t use language like combat agency to identify that the Maritime Services Board (as it was) is to take control of firefighting on a vessel.

As with most emergencies it is not the legislation that identifies who is the combat agency but the relevant plans made under the State Emergency and Rescue Management Act 1989 (NSW).  There are two relevant sub plans to the State Emergency Management Plan. They are:

The Sydney Harbour Marine Emergency Sub Plan; and

The NSW State Waters Marine Oil and Chemical Spill Contingency Plan.

The Sydney Harbour Marine Emergency Sub Plan says, at page 20, that the Sydney Ports Corporation is to act as combat agency for ‘Fires aboard vessels within port limits, in conjunction with FRNSW’.   Fire and Rescue NSW is ‘Upon receiving a call to a fire, respond with SPC and take charge of the firefighting operations where FRNSW personnel and equipment are committed’ (p 16).

One might think that the NSW State Waters Marine Oil and Chemical Spill Contingency Plan is not relevant to firefighting, but appendix 17 to that plan provides ‘Guidelines for Responding to a Fire on a Vessel’.  Those ‘guidelines’ say, at p 85

Fire on a vessel in port will normally be responded to according to the port’s local incident response contingency plan. A vessel when in a port including moored at a wharf is in State waters and under the NSW emergency management arrangements the port owner (a Port Corporation or Roads and Maritime Services) is the combat agency for the response unless control is handed to Fire & Rescue NSW. It is preferable that the port is in control of the response and work closely with Fire & Rescue NSW using an MAICT approach.

The relevant agency for Sydney Harbour is identified as the Sydney Ports Corporation.

The Port Authority of New South Wales is the successor to the Maritime Services Board and Sydney Ports Corporation (http://www.sydneyports.com.au/corporation/About_Us/history) so regardless of the titles used in the plans and the Maritime Services Act 1935, it is now the relevant authority.

Conclusion

Typically fire and emergency service legislation does not determine which agency is the combat agency for a particular event (the State Emergency Service Act 1989 (NSW) is the exception).  Rather the legislation establishes the relevant agency and empowers them but given they multitude of hazards and the need to reflect local conditions, determining how the response is managed is a matter for the agencies working through the State, Region and Local Emergency Management Committees.

In this case the SEMC has established relevant plans that identify for a fire on a vessel, including a vessel in port in Sydney Harbour, it is the Port Authority of New South Wales that is the combat agency.  They should appoint the Incident Controller who will set the controller’s intent for the response. Fire and Rescue may well take charge of firefighting operations but that doesn’t deny that the Ports Corporation is the combat agency, in the same way that in other emergencies particular agencies have specialised roles but it is the role of the IC to take overall control of the response.

This question comes from a member of the NSW Rural Fire Service, that is someone who is clearly a firefighter, but he’s concerned about others.

I recently attended a Group Captains forum where it was said that the RFS would only cover people who were current members of a brigade that may be injured at a fire or callout.  Therefore any person not a member of a brigade, who is injured on a callout is not covered unless they have their own personal insurance or can claim workers compensation from their employer.

In my experience at a larger fire there would be quite a few people who didn’t fall into any of these categories and under the commissioner’s interpretation I would assume that they are not covered in the event of being injured.

I find it difficult to accept this is the case and would appreciate if you could clarify the situation.  I have always been of the understanding that if a person was acting under the guidance of the officer in charge of the incident and dressed appropriately they would be covered.

The answer is that it is not up to the RFS to decide who is, or is not covered, that decision lies with the WorkCover Authority.  But before I get to that let’s look at who is a member of the RFS.  According to the Rural Fires Act 1997 (NSW) s 8(2), the RFS is made up of

(a) the Commissioner and other staff of the Service,

(c) volunteer rural fire fighters.

(That’s not a typo, there is no paragraph (b); presumably there was one once but it’s now been removed so we have paragraph (a) and (c)).  Who are the volunteer rural firefighters?  They are, according to s 8(3):

(a) officers and other members of rural fire brigades, and

(b) any person other than a member of a rural fire brigade who, without remuneration or reward, voluntarily and without obligation engages in fighting (or in activities associated with fighting) a fire with the consent of or under the authority and supervision of an officer of a rural fire brigade.

So it cannot be true that the RFS would only cover (if the RFS covered anyone) ‘current members of a brigade’ because those people who fit the definition in s 8(3)(b), above, are also part of the Rural Fire Service.

We can now turn to the really substantial Act and that is the Workers Compensation (Bush Fire, Emergency and Rescue Services) Act 1987 (NSW).  That Act requires the WorkCover Authority of NSW to provide workers compensation type remedies for volunteer fire firefighters, and others, injured in the course of their duties.  For the purposes of that Act, a fire fighter is:

(a) an official fire fighter, being the captain, deputy captain or any member of a rural fire brigade or the group captain or deputy group captain of any rural fire brigades,

(b) any person who, without remuneration or reward, voluntarily and without obligation engages in fighting a bush fire:

(i) with the consent of or under the authority and supervision of the captain, or deputy captain of a rural fire brigade or the group captain or deputy group captain of any rural fire brigades, or

(ii) in conjunction with any civil authority, and

(c) any person who, without remuneration or reward, voluntarily and without obligation engages in fighting a bush fire and who, in the opinion of the Authority having regard to all the circumstances, should be deemed to be a fire fighter. (Workers Compensation (Bush Fire, Emergency and Rescue Services) Act 1987 (NSW) s 5, definition of ‘fire fighter’).

Neither the Rural Fires Act nor the Workers Compensation (Bush Fire, Emergency and Rescue Services) Act makes any reference to the person being dressed ‘appropriately’.    There standard of dress is irrelevant to the issue of workers type compensation  (though it may not be in relation to duties and obligations under the Work Health and Safety Act 2011 (NSW)).

Conclusion

It follows that the assertion that ‘the RFS would only cover people who were current members of a brigade that may be injured at a fire’ must be wrong.   A person acting under the direction of the RFS officer in charge is part of the RFS (even if they are not a recognized member of a Brigade) and it is the WorkCover Authority (not the RFS) that must provide the workers compensation remedies should they be injured in the course of their duties.

This issue was raised on the Facebook page of the Paramedic Observer but I’m taking the liberty of commenting on it here.

The question asked was ‘What liability is there to respond to MedicAlert?’ (though it may be better to phrase it as ‘What obligation is there to respond to MedicAlert?’)  The post then linked to two New Zealand articles:

• Death ‘may have opened a Pandora’s Box’ of complaints, Voxy.co.nz 16 July 2015; and
• Cate Broughton, MedicAlert bracelets often ‘ignored’, stuff.co.nz, 15 July 2015

The articles relate two cases where a medic alert warning was ignored.  In one a child is reported to have had a life threatening condition that was recorded on the medic-alert bracelet that was ‘ignored’; another involved a patient with a known allergy to an antibiotic that was administered even though the allergy was recorded on the medic alert bracelet.  The story does say that the 80 year old patient ‘died six days later’ but it’s not clear if that was due to the allergic reaction or some other condition or complication.

According to the website of the Medic-Alert Foundation (Australia) they offer a number of services.  Apart from the familiar medic-alert jewellery that can record relevant conditions they also provide, amongst other things, a ‘24/7 hotline for emergency services and healthcare personnel to call’ and a ‘Wallet sized emergency health card’.

So what is the obligation upon health professionals, paramedics, nurses and doctors, to take account of this information?

The answer is quite simple.  The whole point of patient or health care is to advance the interests of the person in need of care.  Respect for the principle of autonomy means that the person, first and foremost who knows what is in the person’s best interests is the person themselves.    It is for this reason that people must be involved, to the extent that they can be, in their health care decision making and why ‘except in cases of emergency or necessity, all medical treatment is preceded by the patient’s choice to undergo it’ (Rogers v Whitaker (1992) 175 CLR 479, [14] (Mason CJ, Brennan, Dawson, Toohey and McHugh JJ)).   The principle of necessity justifies treatment that is necessary and in the patient’s best interests when the patient cannot consent, but not where treatment is contrary to the known wishes of the person (In Re F  [1990] 2 AC 1).

When deciding what treatment is reasonably necessary and in a patient’s best interests, the patient’s history is clearly relevant.   Whether it’s to determine what treatment they want or what treatment is indicated, or contra-indicated, in the particular circumstances.

A bracelet or necklace, whether it’s provided by Medic-Alert or just something they’ve had engraved at the local jeweller’s is one way of communicating that history.   In Malette v Shulman [1990] 67 D.L.R. (4th) 321, the plaintiff carried a card that said she did not want a blood transfusion under any circumstances.    The card was ‘the only way possible to notify doctors and other providers of health care, should she be unconscious or otherwise unable to convey her wishes (p 428)’ and via the card she ‘She gave notice to the doctor and the hospital, in the only practical way open to her’ of her wishes (p 431).  (See also ‘Medical tattoos offer important health information’ March 3, 2012  )

A medic-alert bracelet may have advance directives (like Do Not Resuscitate) or something else such as recording a prior condition or allergy.  In any case, like Ms Malette’s card, it is the only way to communicate with health care professionals if the patient cannot speak for themselves.    There can be no justification for ignoring it.   A doctor who needs to treat a person could not ignore their advice that they are allergic to a particular drug, regardless of whether that information is given verbally or via a bracelet.  A doctor or paramedic who is faced with a semi-conscious patient and who has to try to determine what is the cause of their symptoms cannot sensibly ignore a bracelet that reports the person is epileptic, or diabetic or has any other condition that might be relevant.   That of course won’t say that the reason for their current condition is that pre-existing illness but in forming a diagnosis and treatment plan, the health professional should at least consider it.

All of this assumes the medic-alert bracelet is located.  If it is not found and there is no negligence in not finding it, eg it’s in the person’s pocket rather than on their wrist so a ‘noes-to-toes’ examination does not turn it up, then of course it can’t be considered. Where it is being worn however, at some point it should be located and once that is done it can’t sensibly be ignored.

If the information is ignored, so the patient receives treatment that is contra-indicated but which would have been avoided if the information on the bracelet had been acted upon, or if diagnosis is delayed again because the information is ignored and if the wrong or delayed treatment can be shown to have made the patient’s long term outcome worse, then there could be liability in negligence.    For registered health professionals there could also be issues of professional discipline because one would have to ask whether it is satisfactory professional conduct to ignore the patient’s advice and history when the person has gone to significant lengths to attempt to communicate that relevant information to their health care professionals.

This question comes from a NSW Paramedic and fire fighter.  My correspondent says:

I am a part time NSW Ambulance paramedic who also works as a paid fire fighter with Fire & Rescue NSW. In my role as a fire fighter I often end up attending to patients at an incident. I have had various people give me different advice about what I can and cannot do in terms of treating a patient whilst working as a firefighter. The consensus seems to be that I am limited to providing basic first aid treatment no higher than the level of training provided by the fire brigade, despite my paramedic training and skills.

My question relates to where I would stand in terms of performing patient assessment and treatment that was part of my paramedic scope, whilst working as a fire fighter (bearing in mind that I am limited only to the equipment carried on a fire truck and obviously not including administering drugs)?

Would I be negligent in providing or not providing treatment that I was trained in as a paramedic, whilst working as a fire fighter?

I’ve written before about doctors, paramedics and nurses using their professional skills outside work and when acting as a volunteer – see:

• Doctor as volunteer Life Saver and scope of practice (February 6, 2015)
• Nursing standards and assisting in an emergency (May 22, 2014)
• ALS Paramedic as volunteer with St John (WA) (April 5, 2014).
• ‘Just Ridiculous’? When is a MICA Paramedic a MICA Paramedic? (March 28, 2013)
• Volunteer nurses and their skills (December 12, 2012)

What distinguishes all those posts from this one is that the health professional was acting as a volunteer for a health service –a doctor working with Surf Lifesaving is part of the beach first aid service; a paramedic volunteering for St John or working an overtime shift at a country, non-MICA station.  Here however, the paramedic is working for a fire brigade – is that different?

Let me start with the example of the doctor and surf lifesaving.  Putting aside the actual process of getting someone out of the water, one of the roles is to provide first aid and, in the scenario given in the discussion (Doctor as volunteer Life Saver and scope of practice (February 6, 2015)) the doctor was doing CPR.   So here is a situation where someone may come to the lifesavers (or St John in ALS Paramedic as volunteer with St John (WA) (April 5, 2014)) for health care so the volunteer has a duty to provide health care that is reasonable in the circumstances and required in the patient’s best interests.  They can’t deny or turn off the fact that they are a doctor (or paramedic).    Further if they don’t do something that they are competent to do and know is required in the patient’s best interests, and the reason they don’t do it is because they have been instructed not to or worse, simply think that they must limit their care to some lower standard else they will be ‘liable’ or ‘not insured’, then they are not acting in the patient’s best interests. Rather what they are doing is acting in their own best interests.  This is not only unethical it would not be acting ‘in good faith’ so protections under volunteer protection and good Samaritan legislation could be lost.  This would be consistent with the motivation behind those laws; that is they are designed to encourage, not discourage action (see also Good Samaritan legislation and scope of practice (March 27, 2015)).

But a fire brigade is different.  A fire brigade (or at least a brigade from NSW Fire and Rescue) is there to ‘to take all practicable measures 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 fire brigades are not (yet) an emergency medical service (Fire fighters as EMS providers (January 31, 2013)).  People may expect a fire fighter to provide first aid to a person affected by a fire or hazardous material service but the fire brigades, and fire fighter’s primary concern will be the fire or the hazardous materials.  Fire fighters would and should pass the patient over to the ambulance service or depending on the nature of the event (eg a major bushfire) a support agency like St John Ambulance.

Whilst a fire brigade, and therefore a fire fighter, will have a duty to provide reasonable care to a person who is injured, it will not be to the same extent as an ambulance service or I would suggest, NSW Ambulance, St John Ambulance or Surf Lifesaving. The focus of those agencies is on the person, the focus of the fire brigades is the fire or hazard. (Compare the decisions in Capital and Counties v Hampshire Council [1997] QB 2004 (fire brigades do not owe a duty to individuals) and Kent v Griffiths [2001] QB 36 (London ambulance service does owe a duty to 999 caller) – both of which are discussed in multiple posts on this blog).

Let us now return to the scenario.  My correspondent is on duty with NSW Fire and Rescue, he may be at a motor vehicle accident, a fire or a hazardous materials incident (or any other type of incident) but let us assume the ambulance service is not yet there.  Let us also accept that my correspondent is ‘limited only to the equipment carried on a fire truck and obviously not including administering drugs)’.  I’m not sure but my knowledge of what’s in a standard appliance would cause me to think there is probably a first aid kit and medical oxygen.   It must follow that if a person is being treated by a fire fighter they could expect that if not every firefighter, at least one firefighter travelling on that appliance can use that equipment.  They would reasonably expect to get care that involved basic first aid and, if necessary, oxygen therapy.  A paramedic can administer that treatment without issue.

So what else can a paramedic do? My correspondent talks of ‘performing patient assessment and treatment that was part of my paramedic scope’.    Patient assessment cannot be an issue.  Let us assume that the person has come out of the fire and is assessed by a fire fighter who says ‘you seem ok mate’ but my correspondent – a paramedic – thinks ‘I’m not so sure’ and stops to do a more thorough assessment. Again I’m assuming he’s limited to what’s on the fire appliance so no sphygmomanometer, stethoscope or other tool, but perhaps more thorough questioning and just knowing what to look for is helpful.

How could there be any liability for doing that?  It still the case that one can’t just pretend you don’t know what you do in fact know.  Doing that assessment cannot harm the person but not doing it could if, for example, they’re allowed to go home when they should be referred to an ambulance crew for even more thorough assessment.

What of a treatment?  Here let us assume that the patient is suffering from asthma (not unlikely at a fire) and my correspondent decides to administer ‘expiratory assistance’ (Ambulance Service of NSW, Protocol M4: Asthma, January 2011).  I’m no longer a clinician but we used to do external chest thrusts so let me assume that is still what is meant by ‘expiratory assistance’ (I’m sure one of the paramedics who follows this blog will correct me if I’m wrong on that).  Let me also assume this technique is not taught to firefighters (again I’m happy to be corrected by any of the firefighters on the blog).    What could happen?  Well I suppose one could fracture the patient’s ribs.  Now if the procedure is performed competently, and if this is a known risk, and if the patient benefits there can be no liability so let me assume the procedure is done negligently.

Who could the patient sue?  They could sue the Fire Brigades.  The person doing the treatment was clearly a fire fighter acting in the course of his or her duties (they’re at the fire, in uniform). The fact that they performed a treatment negligently is what vicarious liability is all about; an employer is liable for the negligent acts of its employees, not the non-negligent ones.  In this case the paramedic/firefighter may have performed beyond the skills of a firefighter but that does not mean the fire service would escape liability. In CML (1931) 46 CLR 41, Gavan Duffy CJ and Starke J said (at 64): “It is not necessary that the particular act [‘expiratory assistance’] should have been authorized: it is enough that the agent should have been put in a position to do the class of acts complained of.”  Here the employee fire fighter is there to perform his or her duties which must include giving first aid to those injured by the event so the action is in the ‘class’ of authorised acts.

For the fire service to escape liability they would have to show that the employee fire fighter was engaged in ‘frolic of their own’.  That might be the case if the paramedic carried on the appliance a personal drug kit and advanced life support equipment but that is not the scenario described here.   Here my correspondent is limited to the kit carried on the appliance.  He or she is not doing something for his or her benefit, they are trying to help a person, in need of assistance, at an incident to which they have been called.  Remember that the brigade is to ‘‘to take all practicable measures for … saving life’.   I would be certain that any liability would still lie with the fire service.

What if the paramedic doesn’t do anything?  Assume first that the person is being cared for by another fire fighter.  In that case you have a person getting first aid but who could benefit from the extra knowledge and experience of the paramedic fire fighter.  The patient, assuming they could prove the outcome would have been different had they been treated by the paramedic/fire fighter, would have trouble suing the Fire Brigade.  The fire service is not under a duty to provide advanced life support or anything other than basic first aid.  They don’t hold themselves out as an EMS service, they are a fire service.  All that might be expected form a fire service is whatever they teach their fire fighters to do and that is the care the person was receiving.

Could the fire fighter/paramedic be sued?  I don’t think so. He or she is there as a fire fighter, to impose a duty to provide some higher level of care, even any level of care, could distract the fire fighter from his or her duties.   Assume a person is pulled from the fire and needs first aid, my correspondent may well leave the person with another fire fighter as his current duty requires him to attend to the fire.   There can’t be any obligation either upon the fire service or my correspondent to be in charge of anyone injured in the fire because he or she is the best qualified.  That would deny the fact that, at this moment, they are a fire fighter.

The situation would be different if the person was not being attended to by anyone and the paramedic/fire fighter refused to step in.  Then the fire service would again be liable (if it made a difference to the outcome) as the fire service would owe some duty to a person pulled from the fire as the fire brigade is there to there to ‘to take all practicable measures for … saving life …’ (Fire Brigades Act 1989 (NSW) s 6) so the service has to ensure that some care is provided, though not by a paramedic.    A failure by all fire fighters at the scene, including my paramedic correspondent, to act would be a failure by the brigade.

Conclusion

My conclusions are:

1. If my correspondent undertakes a ‘patient assessment and treatment that was part of my paramedic scope, whilst working as a fire fighter (bearing in mind that I am limited only to the equipment carried on a fire truck and obviously not including administering drugs)’ and benefits the patient; all well and good.
2. If he or she harms the patient, then in my opinion, the fire service would be vicariously liable.
3. If my correspondent does not provide patient care because he or she is engaged with other duties to do with the fire or incident response then neither my correspondent nor the fire brigades would be liable as neither are under a duty to provide paramedic care at the fire. This would be the case even if the patient can show that they would have had a better outcome if that care had been provided.
4. Provided another fire fighter is looking after the patient, then if my correspondent does not provide patient care because he or she is concerned with protecting his or her own interests, that is they are scared of liability, then that action would be unethical and I would suggest not in good faith, but I still don’t think that could lead to liability as the person is getting the care of a reasonable fire service.
5. If no-one is looking after the person and my correspondent is not otherwise engaged in firefighting tasks, then the fire service could be liable if he or she refuses to treat the person. If that refusal is motivated by a fear that of liability then that would be both unethical and not acting ‘in good faith’.   The fire service would owe a duty to provide some care and if the only available fire fighter fails to act, the fire service would be liable for not ensuring that the relevant care is provided.

A correspondent has brought to my attention the decision of the NSW Supreme Court in Health Administration Corporation v CJL Haulage Pty Limited [2015] NSWSC 858 (1 July 2015).  This case arose out of a motor vehicle accident on 25 July 2008 (nearly 7 years ago – justice moves slowly).

At the time the ambulance was being driven on ‘urgent duty’ in response to a call to a motor vehicle accident.  Due to traffic ahead the ambulance was being driven on the wrong side of the road.  The plaintiff was driving a truck; he turned right across the path of the ambulance and a collision occurred.  Although it’s not clear the inference is that both ambulance officers and the truck driver suffered injuries.  My understanding of the situation is summarised in my drawing attached. (Do note this is not to scale, does not represent the actual road layout etc.  I’ve just read the judge’s description of what happened in paragraphs 4-6 and this is how I’ve visualised it for my benefit).

The issue became who was negligent?  The matter was heard in the Local Court where the Magistrate, Stapleton LCM, found that the ambulance driver was negligent and the truck driver was not.   The Health Administration Corporation (being the legal entity responsible for the ambulance service (see Health Administration Act 1982 (NSW) ss 9-13A)) appealed.  An appeal from the decision of a Magistrate is heard by a single judge in the Supreme Court, in this case Mr Justice Button.  Button J dismissed the appeal so the Magistrate’s findings and conclusions were affirmed.

This was an action in negligence.  In negligence the plaintiff has to prove that the defendant was negligent that is that the defendant owed the plaintiff a duty of care, that they failed to exercise reasonable care and that as a result the plaintiff was injured.  Button J said (at [37]) ‘it is noteworthy that the judgment says little, if anything, about the elements of the tort of negligence at common law, as modified by the provisions of the Civil Liability Act 2002 (NSW).’  That is, the Magistrate did not deal with the issues of duty, breach and damage, but that was because, said Button J, of the way the parties ran the case.

A court is an adversarial place where the judge or magistrate is asked to rule on the issues put before them.  This case was run on the basis that the Australian Road Rules would determine the matter.  This was unusual.  The Australian Road Rules define driver’s obligations and these are enforced by way of criminal penalty, that is the rules set up criminal offences.  Rule 306 that provides an exception for ambulance officers and others is providing a criminal defence.  Compliance (or not) with the rules does not determine whether or not there has been negligence.  As Meagher JA (with whom Gleeson and Sackville AJA agreed) said in Verryt v Schoupp [2015] NSWCA 128 at [4] ‘the determination of what reasonable care requires in any given case is not resolved by asking whether the relevant conduct was or was not prohibited by one of those rules’.

In this case however, the parties did run the case on the basis that compliance with the road rules should determine where liability lay.   The appellant Health Administration Corporation argued that the ambulance driver had the benefit of rule 306 and the truck driver was obliged by rules 78 and 79 to give way to the ambulance.     The respondent trucking company (that was suing, no doubt, via its workers compensation insurer that would have met the liability to the injured driver) argued that in the circumstances these rules did not apply and so if the ambulance was not exempt then driving down the wrong side of the road at 80km/h meant that the ambulance driver was negligent.

So what was the arguments?  The appellants’ argument was straight-forward.  Rule 306 says

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

(a) in the circumstances:

(i) the driver is taking reasonable care, and

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

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

They said those criteria were met and so the truck driver was required to remain where he was, not turn right across the path of the ambulance.

The truck driver’s argument was that there was no siren sounding and that the speed that the ambulance was travelling meant that the driver was not taking reasonable care.

Was the siren sounding?  No-one could say, with certainty that it was.  The truck driver said he didn’t hear it.  The two ambulance officers, and an independent witness, said it was sounding some time before the accident but the ambulance officers had no recollection of the actual accident and the independent witness ‘was unable to say with certainty that the siren was activated at the time of the collision’ ([13]).    The magistrate had the benefit of seeing the witnesses, including the truck driver, and accepted his evidence that if the siren was on he would have heard it.    Button J said (at [61]) ‘Whilst I respectfully consider that the finding that the siren was not operating at the time of the collision is a surprising one, to my mind it was open to the evaluation of her Honour’.  That is he might not have reached the same conclusion but an appellate court is not there to simply rehear the matter. The court’s job is to ask whether the lower court made an error of law.  Just because the lower court came to a different conclusion on the evidence does not meant that error was wrong, and that is the conclusion Button J reached.

The Magistrate also found that the ambulance driver was not taking reasonable care.  She found (at [29]) that ‘the driving by the ambulance driver at a speed of 80 km/h on the wrong side of the road was, in all the prevailing circumstances, not reasonable, not prudent, and recklessly fast’.   Further the driver was not paying sufficient attention to the vehicles on the left and did not at any stage consider whether she should move back to the ‘correct’ side of the road.

One interesting issue is that the Magistrate said (at [51] of Button J’s judgement):

It seems to me that a further part of the assessment of whether it was reasonable that the rules should not apply, is how serious was the emergency she was attending. I accept that it was a lights and siren emergency which is a class of emergency where drivers are required to put on their lights and sirens so as to require, pursuant to the relevant rules, 78 or 79 I think it was, that vehicles move out of the way. But, to my mind, there must be a range of emergencies within that rule and there’s no evidence about what she was going to attend to. So there was no way to balance up whether the risk created by driving in the wrong direction on Newbridge road with the risk that drivers might turn right off it because they wouldn’t see it coming from behind, was a reasonable risk to take in the circumstances so that the rules should not apply. There was just no evidence in the defence case about it.

It was argued that this represented an error but Button J said ‘that was a statement that was objectively correct: there was indeed no evidence in the hearing about the details of the particular emergency to which the ambulance driver was travelling. Immediately before the impugned clause in the same paragraph, her Honour referred explicitly to the fact that it was a “lights and siren” emergency, and implicitly to the fact that it was a “class one” emergency’.

With respect to both their Honours I would disagree that ‘there was indeed no evidence in the hearing about the details of the particular emergency’.    The evidence of the driver’s partner (at [10]) was that they ‘were tasked to attend a motor vehicle accident (‘MVA’) at the tollgates of the South Western Motorway’.  That was the emergency, a motor vehicle accident.  As I’ve argued before, they can’t know before they get there, regardless of what’s been reported, what the actual nature of a person’s injuries are or whether their injuries warranted an urgent response or not; see “‘Response’ driving with NSW RFS” (February 2, 2015).   Evidence from ambulance crews that did make it, either that people were critically injured or that they were not, could not be relevant to a consideration by this driver as to what was required.  As noted this was a ‘class one’ emergency – that was the details of the emergency they were attending.

Even so Button J could find no error of law, even if the Magistrate’s finding that the siren was not was ‘surprising’ and so the appeal was dismissed.

Legal lessons

It is hard to generalise from one case based as it is on the facts, not legal principle. On the facts it would tell counsel that it may be prudent in a future case to lead more detailed evidence as to the nature of the call, but as argued above I don’t think that actually makes sense.

Specific evidence as to the use of lights and sirens may be relevant but reading the case it’s hard to know what other evidence could be called.  As even Button J said, the finding that the sire was not on was ‘surprising’.

A ‘black box’ type recorder that could record speed and whether lights and sirens were on could be useful but hardly worth the expense.

This leads to my most significant observation.  The big issue is not whether the ambulance driver was or was not negligent.  The bigger issue is the whole administration of tort law.    The ambulance officers were at work and would have been entitled to Workers Compensation under the Workers Compensation Act 1987 (NSW).  The truck driver was also at work and would have received workers compensation.   Depending on the nature of their injuries they would have also had rights under the Motor Accidents Compensation Act 1999 (NSW) but the injuries have to be very significant before it becomes worth trying to claim over and above any no fault workers compensation.

Given that all the people would have been entitled to workers compensation and give that the case was between the Health Administration Corporation and CJL Haulage Pty Limited rather than in their own name, one can infer that this was really a dispute between insurance companies.      Even if it was not, even if the issue was whether or not the parties were entitled to common law damages above the workers compensation, they were both driving registered vehicles in the course of their employment.  Neither the truck driver nor the ambulance driver would be personally liable.

So, there is a slight chance that this was about the damages to the parties but I think a much stronger inference is that this was between the insurance companies fighting over who had to pay.  And it took 7 years to work it out (assuming there are no further appeals).  And it took taxpayers to pay the judge and for the court.   And the parties had to pay all their solicitors and counsel.  And remember there was no chance that any driver was going to be personally liable and they were all going to get at least workers compensation regardless of the outcome.

Installing a ‘black box’ or leading different evidence wasn’t going to have any significant impact on the people involved in the accident.  It may have just resolved some issues with more certainty for the benefit of one insurer or the other.  You do have to wonder why the taxpayers of NSW (and Australia) continue to fund such a ridiculous, slow system for insurance companies to try to settle arguments over who pays what to each other’s shareholders.