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Discussion on the law that applies to or affects Australia's emergency services and emergency management, by Michael Eburn, PhD, Australian Lawyer. Email: meburn@australianemergencylaw.com
Updated: 10 hours 38 min ago

Transporting drugs

3 April, 2023 - 21:09

Today’s correspondent has a regarding the transport of s4 and s8 drugs. They work:

… for a Private Ambulance Service which operates on a number of sites in NSW within a fairly close proximity, with one site being larger than the rest and which has a large clinic staffed with a Doctor and Nurse along with a paramedic. The current practice when the other clinics require S4 and S8 medications to replenish their stock is to place the S4 & S8’s in to a plain unmarked box and hand it to the bus driver (a contractor to the client) and have them transport the medications to the other sites. is this Legal for the bus driver to be delivering these scheduled medications?

Prescribed restricted substances

For the purpose of the Act and its Regulations, the term ‘prescribed restricted substance’ means the substances listed in Appendix D (Poisons and Therapeutic Goods Regulation 2008 (NSW)r 61). 

A person does not commit an offence if he or she obtains possession of a prescribed restricted substance ‘for the purpose of delivering it: (a) to a medical practitioner, nurse practitioner, midwife practitioner, pharmacist, dentist, optometrist, podiatrist or veterinary practitioner…’ (Poisons and Therapeutic Goods Act 1966 (NSW) s 16(5)).

Regulation 64 of the Poisons and Therapeutic Goods Regulation 2008 (NSW)says (emphasis added):

A carrier is authorised to be in possession of a package containing a prescribed restricted substance, but for the purpose only of delivering it to the person to whom it is addressed.

Drugs of Addiction (s 8)

A carrier is also authorised ‘to be in possession of a package containing a drug of addiction, but for the purpose only of delivering it to the person to whom it is addressed’ (r 108). The term ‘drug of addiction’ means a drug listed in schedule 8 (Poisons and Therapeutic Goods Act 1966 (NSW) s 4).  Drugs of addiction may also be sent by registered post (r 107).  A schedule 8 drug must be (r 108(2)):

(a) … contained in a package that has at least one opaque covering, and

(c) the package contains a document–

(i) listing the contents of the package, and

(ii) bearing the words “SCHEDULE EIGHT–CHECK CAREFULLY” in bold face sans serif capital letters with a letter height of at least 12.5 millimetres, and

(d) the outside of the package does not indicate that it contains a drug of addiction, and

(e) the package is properly addressed to the person to whom the drug is being supplied.

The term ‘carrier’ is not defined but presumably the bus driver would fit that definition so can carry the drugs if they are s 8 or listed in Appendix D and are appropriately packaged.

Meaning of possession

There is an issue of what possession means. When looking at possession when it comes to prohibited drugs, the courts have said that a person can only be ‘in possession’ if they know they are in possession.

The words …  “has in his  possession ” – in their ordinary sense connote a state of mind, in particular some awareness of the existence of the thing that was in fact in the possessor’s physical control. (He Kaw Teh (1985) 157 CLR 523, (Gibbs CJ, [20]).

That may help explain why a s 8 drug has to be in a package that does not indicate what is in it.  We would not expect a postal delivery worker would be guilty of possessing drugs or a firearm if someone posted them even though at some point the drugs or weapon are in the motorcycle saddlebags and so the postal worker has physical control over them.  A South Australian Code of Practice for the Storage and Transport of Drugs of Dependence (2012) says, with respect to air transport ‘The contents of parcels must not be revealed unnecessarily to airline employees’.  All of this is consistent with the idea that this ensures that the staff are not themselves ‘in possession’ of the items even if they are in possession of the package itself. If that analysis is correct, then it is arguable that putting drugs ‘in to a plain unmarked box and hand it to the bus driver’ without telling the driver what is in the package may be sufficient to mean the driver is not in possession of those drugs.  That of course does not deal with whether the on-site pharmacist or health practitioner is meeting their obligation to secure the medication.

The Service’s drug authority

The final issue would be the terms of any authority that allows the ‘Private Ambulance Service’ to possess the drugs. The permit may allow the service, and anyone authorised by the service, to have the drugs in their possession so it may well be that the service is able to authorise the bus driver to be in possession for the purposes of the delivery between sites.

Conclusion

It’s impossible to answer the question without more details but I would suggest that it is probably lawful ‘to place the S4 & S8’s in to a plain unmarked box and hand it to the bus driver (a contractor to the client) and have them transport the medications to the other sites’.  If the drugs are either a prescribed restricted substance or s 8,then it’s justified by the Poisons and Therapeutic Goods Regulation 2008 (NSW) rr 64 or 108 respectively. In other cases I would anticipate it’s covered by the relevant authority that a private ambulance company operates under.

This blog is made possible with generous financial support from the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), Natural Hazards Research Australia, NSW Rural Fire Service Association and the NSW SES Volunteers Association. I am responsible for the content in this post including any errors or omissions. Any opinions expressed are mine, and do not necessarily reflect the opinion or understanding of the donors.

Categories: Researchers

Scheduled drugs for a ‘community-run non-profit organisation’

30 March, 2023 - 21:56

Today’s correspondent writes:

… to inquire about the process that needs to be implemented in order for our community-run non-profit organisation (Based in NSW) to enable our Registered Nurses to carry and administer medications such as IM Glucagon, IM Midazolam, IM Ondansetron, GTN, and IV crystalloid fluids during emergency situations at communal events.

We currently have a Medical Advisory Committee in place, which oversees our clinical governance, including policies and procedures. However, we would like to know what steps we need to take to enable our nurses to administer the aforementioned medications to patients during emergencies.

We are wondering whether a standing order could be used to authorize our nurses to administer these medications, or if there are any other methods that we should consider.

The starting point is that you cannot have a ‘standing order’ from a doctor to authorise others to carry scheduled drugs to give out to as yet unidentified patients with as yet unknown diagnosis. Doctors cannot authorise others to carry drugs; if they could there would be no need for the restrictions in the drugs legislation (see Doctors delegating authority to carry drugs (August 20, 2014)).  Take for example Appendix C to the Poisons and Therapeutic Goods Regulation 2008 (NSW) which provides details of ‘Persons authorised to possess and use substances’.  If a ‘medical advisory committee’ or some such could write a standing order to authorise others to carry scheduled drugs there would be no need for most of Appendix C as a doctor employed on a mine site (cl 11) or on the board of the ski patrol (cl 14) could give the relevant authorities.

My correspondent says the relevant staff are nurses and the drugs in question are in the first column below. The second column identifies which schedule of the Poisons Standard (February 2023) the drugs are listed in;

DrugScheduleGlucagon3Midazolam4Ondansetron4GTN (Glyceryl trinitrate)Schedule 3 when in preparations for oral or rectal use; otherwise Schedule 4Crystalloid fluidsDo not appear to be scheduled – see for example the Public Summary for Hartmann’s solution.  Specific solutions maybe scheduled but without more information I cannot determine that so I assume they are not scheduled.

We are therefore talking about non-scheduled medication, schedule 3 and 4 drugs. No authority is required to possess or supply a non-scheduled drug. In this context what is important is the practitioner knows what the drug is for, when and how to use it – see Non-scheduled drugs (July 27, 2022).

The Poisons and Therapeutic Goods Act 1996 (NSW) s 4 says the word ‘poison’ means any substance listed in schedules 1, 2, 3, 5, 6 or 7.  The term ‘restricted substance’ means a substances listed in schedule 4. Section 17A(1) says

A nurse is authorised to possess, use, supply or prescribe a poison, restricted substance or drug of addiction for the purposes of the practice of nursing, if:

(a) the nurse ‘s registration has an endorsement of a kind referred to in section 94 of the Health Practitioner Regulation National Law (NSW) that qualifies the nurse to possess, use, supply or prescribe that poison, restricted substance or drug of addiction, or

(b) the nurse is a nurse practitioner who is authorised in writing by the Secretary to possess, use, supply or prescribe that poison, restricted substance or drug of addiction.

A nurse may administer a drug on the direction of a medical or nurse practitioner (Poisons and Therapeutic Goods Regulation 2008 (NSW) r 68C) but that does not mean some general standing order to treat an as yet unidentified patient. A medical or nurse practitioner can only give that sort of direction if they have ‘personally reviewed the patient in person or by audiovisual link’ (s 68B).  This is the clause that allows a doctor to examine the patient and direct a nurse to administer a drug as part of their treatment.

A nurse in charge of a ward also has authority and responsibility for the storage of drugs but that is not relevant in this context.

Conclusion

In the absence of specific permission in either the Poisons and Therapeutic Goods Act or Regulations the community-run non-profit organisation would need to ensure that the nurses on staff are endorsed nurse practitioners, or they would need to apply to the Secretary of Health for an authorisation pursuant to section 17A of the Poisons and Therapeutic Goods Act 1996 (NSW).

This blog is made possible with generous financial support from the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), Natural Hazards Research Australia, NSW Rural Fire Service Association and the NSW SES Volunteers Association. I am responsible for the content in this post including any errors or omissions. Any opinions expressed are mine, and do not necessarily reflect the opinion or understanding of the donors.

Categories: Researchers

Issuing Naloxone to Victorian council workers

27 March, 2023 - 11:17

Today’s question relates to the use of Naloxone in Victoria. My correspondent works:

… for a council in Victoria across two venues which open to the public, one of which is within a nightlife hub. The council area has no legal injecting sites and local pharmacies do not ready stock Naloxone. I’ve raised the issue, suggesting we add Naloxone to the first aid kits in both venues as a means of filling this void and preparing our workplace for any emergencies that may arise in accommodating members of the public. This has been met with concerns regarding the legal repercussions of employees administering medication to the public and broad recommendations that medications be kept out of first aid kits. As there are already exceptions made for asthma medication and epi-pens I’m wondering whether there may still be argument for the inclusion of Naloxone in our workplace kit. Would employees (non-health related occupations) be covered under the good Samaritan Act? Would the council be at any risk in providing the naloxone?

What is naloxone?

The Alcohol and Drug Foundation says:

What is naloxone?

Naloxone hydrochloride (brand names Prenoxad, Nyxoid) is a drug that can temporarily reverse opioid overdose. Naloxone works by blocking opioid drugs, such as heroin and oxycodone, from attaching to opioid receptors in the brain.

How is it used?

Naloxone can be injected intramuscularly (into a muscle) or delivered by intranasal spray. It may be administered by medical professionals, such as paramedics, as well as family, friends, or bystanders in an emergency where someone is experiencing an overdose.

Best practice is to provide a person who might be administering naloxone with training. See the bottom of this page for information on where to find training providers.

Naloxone, when used for the treatment of opioid overdose, appears in Schedule 3 of the Poisons Standard. Schedule 3 drugs are ‘Pharmacist only medicine’ ie ‘Substances, the safe use of which requires professional advice but which should be available to the public from a pharmacist without a prescription.’ (Therapeutic Goods (Poisons Standard—February 2023) Instrument 2023).

Any substance listed in any of the poisons schedules is a ‘poison or controlled substance’ (Drugs, Poisons and Controlled Substances Act 1981 (Vic) s 4).

The Take Home Naloxone program

The Federal Department of Health and Aged Care says:

The Take Home Naloxone program is for:

  • people who are at risk of an opioid overdose or adverse reaction, their carers, friends and family members
  • approved providers such as community pharmacists, dispensing doctors and hospital pharmacists
  • authorised alternative suppliers such as needle and syringe programs, alcohol and other drug treatment centres and outreach services. 

This scheme is provided for in the Drugs, Poisons and Controlled Substances Act 1981 (Vic) and the Drugs, Poisons and Controlled Substances Regulations 2017 (Vic). The Regulations say that approved naloxone providers, and employed approved naloxone workers can obtain, possess and supply naloxone (rr 133F, 133G, 161D and 161E). Where an approved naloxone worker has supplied the drug to someone, that person may then supply the drug to anyone else who needs it for treatment of a drug overdose (r 133H). In short, the plan is that  someone who is a drug user, or has a family member who is a drug user, can obtain naloxone from a naloxone worker and can then use it to assist their friends or other drug users in the event of an emergency. 

It could be argued that the council workers are people who in the course of their work may ‘witness, an opioid overdose or adverse reaction’ (Federal Department of Health and Aged Care) in which case they could get the drug from an approved naloxone worker but I don’t think that is the intention of the scheme and I don’t think ‘alternative suppliers such as needle and syringe programs, alcohol and other drug treatment centres and outreach services’ would want to supply naloxone to the council. Rather if the council wanted to put naloxone in the first aid kits the council would need to become an approved naloxone provider and then have relevant employees approved as naloxone workers.

The first conclusion therefore is unless the council is an approved naloxone supplier, and the staff are either registered nurses (Nurses, naloxone and emergencies (April 23, 2019)), doctors or approved naloxone workers, then they are not authorised to have naloxone in the first aid kit.

The Compliance Code: First Aid in the Workplace

The Compliance Code: First Aid in the Workplace (2021) is published by WorkSafe Victoria under the Occupational Health and Safety Act 2004 (Vic).  According to WorkSafe Victoria:

The purpose of this code is to guide employers on how to provide adequate workplace facilities, in particular first aid facilities, for the welfare of employees…

While the guidance provided in the code is not mandatory, a duty holder who complies with the code will – to the extent it deals with their duties or obligations under the OHS Act and OHS Regulations – be considered to have complied with those duties or obligations.

With respect to medication the Code says

138. Employers should consider including an asthma-relieving inhaler and a spacer to treat asthma attacks and adrenaline (epinephrine) auto-injector for the treatment of anaphylaxis (commonly known as an EpiPen)…

141. In general, administering scheduled medications needs to be managed by a registered health professional. However, in providing first aid, it may be appropriate for a first aid officer in certain circumstances to:

• assist a patient with taking their medication (such as an asthma inhaler)

• assist a patient to take, or administer a medicine to a patient, in line with their first aid training or on the instruction of a registered health professional or Ambulance Victoria (for example, giving an adrenaline (epinephrine) auto-injector in anaphylaxis).

That Code is not ‘binding’ so the fact that it only mentions ‘an asthma-relieving inhaler … and adrenaline’ does not mean that only those drugs should be considered. The issue requires a risk assessment for the employer to determine what issues are likely to be encountered at the workplace. But the Code does not authorise who can carry or use drugs.

The Good Samaritan Act

There is no such thing as a ‘good Samaritan Act’ but this colloquial expression refers to provisions in legislation in all states and territories. In Victoria the Wrongs Act 1958 (Vic) s 31B says:

(1) A good samaritan is an individual who provides assistance, advice or care to another person in relation to an emergency or accident in circumstances in which—

(a) he or she expects no money or other financial reward for providing the assistance, advice or care; and

(b) as a result of the emergency or accident the person to whom, or in relation to whom, the assistance, advice or care is provided is at risk of death or injury, is injured, is apparently at risk of death or injury, or is apparently injured.

(2) A good samaritan is not liable in any civil proceeding for anything done, or not done, by him or her in good faith—

(a) in providing assistance, advice or care at the scene of the emergency or accident; or

(b) in providing advice by telephone or by another means of communication to a person at the scene of the emergency or accident.

An employee whose duties include providing first aid and in particular if they get paid a first aid allowance is not a good Samaritan. But that hardly matters. If the person is an employee and if they are negligent their employer – the council – will be vicariously liable for any negligence.

Conclusion

If the council conducted a risk assessment as required by the Occupational Health and Safety Act 2004 (Vic) and determined that it was appropriate to put naloxone in a first aid kit they should to seek authority to become an approved naloxone provider and identify workers as approved naloxone workers to take responsibility for the supply of the drug to someone suffering a drug overdose.

If they did that the risk of legal liability for having the drug, and using it in accordance with relevant training as an approved worker, would be very low.  

Failing that it would not be appropriate to try to buy naloxone from a pharmacist to put in the first aid kit without ensuring that there were adequately trained and authorised staff on hand to manage the supply and administration of the drug.

This blog is made possible with generous financial support from the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), Natural Hazards Research Australia, NSW Rural Fire Service Association and the NSW SES Volunteers Association. I am responsible for the content in this post including any errors or omissions. Any opinions expressed are mine, and do not necessarily reflect the opinion or understanding of the donors.

Categories: Researchers

Application of presumptive cancer legislation – SA

21 March, 2023 - 17:34

A correspondent who is a ‘regional duty officer working as a staff member for the SA Country Fire Service’ was diagnosed with breast cancer. She continues:

As you are aware, the presumptive legislation has been in place for some time – and with no rejected claims in SA as far as I can ascertain.

The SAFECOM claims manager advised me recently that I am not covered under the legislation in SA as it covers MFS fire fighters and CFS volunteers – but not CFS Staff. I am disappointed CFS staff are not covered – and feel that many other staff of fire fighting organisations are not aware of this.

I am wishing to appeal the decision and wondered on the best approach – obviously need to seek legal advice and representation but unsure who would be the subject matter experts in this area?

Also interested as to whether you have heard of any other such claims being rejected?

As I’ve said before this is not the place for legal advice. As to who would be the subject matter experts, I cannot make any recommendations but would suggest that there are firms specialising in occupationally acquired cancers and workers compensation.  Often the best source of referral is the relevant trade union. I have no knowledge of claims being made or rejected. What I can do is look at the relevant law.

Presumptive legislation has become a common feature of firefighting legislation providing that firefighters who acquire certain cancers are presumed, without further proof, to have acquired them in the course of their duties and so are eligible for relevant workers and volunteer compensation. In South Australia the relevant provisions are found in the Return to Work Act 2014 (SA) Schedule 3.  Clause 1(1) says:

If—

(a) a worker suffers an injury of a kind referred to in the first column of the table in this Schedule; and

(b) the injury occurred on or after 1 July 2013; and

(c) before the injury occurred, the worker was employed by SAMFS as a firefighter for the qualifying period referred to in the second column of the table opposite the injury; and

(d) during that period, the worker was exposed to the hazards of a fire scene (including exposure to a hazard of the fire that occurred away from the scene),

the worker’s injury is presumed, in the absence of proof to the contrary, to have arisen from employment by SAMFS.

Clauses 3(b) and (c ) say:

 (b) a worker who was so employed for 2 or more periods that add up to or exceed the qualifying period is taken to have been employed for the qualifying period; and


(c)         the qualifying period may include a period or periods that commenced or occurred before 1 July 2013.

Clause 2 makes similar provisions for CFS firefighters. Clause 3(a) says ‘a worker is taken to have been employed as a firefighter if firefighting duties made up a substantial portion of his or her duties’.  For Primary site breast cancer the qualifying period is 10 years.

In this case my correspondent reports a long period as a volunteer and an active firefighter between 1988 and 1997, that is 9 to 10 years depending on the dates. As a regional duty officer, she’s attended active fires ‘to liaise and assist the fire investigators or other emergency services personnel’ and walk through structure fires as part of the investigation without appropriate PPE. Clause 3 tells us that the qualifying period (10 years) includes service before 2013 and where there are two periods they are a added together. According to my correspondent she had not less than 9 years as an active firefighter; so she just needs to find another year where her work has been firefighting duties and exposure to ‘the hazards of a fire scene’ to get the benefit of the legislation.

What constitutes ‘firefighting’ and ‘firefighting duties’ is not defined though they may be defined in a relevant award or agreement.

What follows is that my correspondent would argue that she meets the test of 10 years as a firefighter going back to the start of her service. If she does not have 10 years in that period the question would be whether in the later period she was ‘exposed to the hazards of a fire scene’ and whether whether her duties constitute firefighting duties. If a relevant court accepts that the duties described (but not detailed here) are firefighting duties and when added to her service as a volunteer reaches the 10 year threshold, then she would be entitled to the benefit of the section.  If, on the other hand, the applicant does not meet that criteria, then the presumptive legislation does not apply.  That does not mean that she cannot obtain compensation, rather she will have to go through the process of leading evidence to prove the connection between any exposure and the development of the cancer.

Conclusion

The test is not a simple one. The concept of firefighting duties is not defined so it may be a matter that has to be tested in the South Australian Employment Tribunal. As noted what is required is expert legal advice and again, I would suggest the first stop would be the relevant industrial union.

This blog is made possible with generous financial support from the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), Natural Hazards Research Australia, NSW Rural Fire Service Association and the NSW SES Volunteers Association. I am responsible for the content in this post including any errors or omissions. Any opinions expressed are mine, and do not necessarily reflect the opinion or understanding of the donors.

Categories: Researchers

Paramedic disagrees with an Inpatient Treatment Order (South Australia)

16 March, 2023 - 11:42

Today’s correspondent is an Intensive Care Paramedic from South Australia who:

… was asked to assist an ambulance officer crew with an elderly patient they were attending. In SA, ambulance officers hold a Cert IV qualification and are not registered paramedics, do not have the ability to sedate nor are they delegated authorised officers by the SAAS CEO with reference to the Mental Health Act 2009 (SA). [For a related discussion see Paramedics are not authorised officers under the Mental Health Act 2009 (SA)(August 18, 2022)].

This crew attended after SAAS was called by a geriatrician and a nurse who had visited the patient at their home, …

The crew arrived and performed an assessment, the patient did not want to go to hospital. The crew determined he had capacity to make this decision and followed appropriate SAAS policy pertaining to this. … As they were about to leave, the geriatrician approached them and stated they had decided to place the patient under a level one inpatient treatment order (I believe relevant legislation is sections 20-23 of MH Act 2009) because they felt he was at risk of falling/not safe at home. The crew did not think this was appropriate, however the doctor insisted that the patient would be conveyed through any means necessary. I was then involved, as sedation of people >65 is within my scope of practice. 

My assessment of the patient was consistent with the crew, an elderly man who was able to tell me the exact date, what car he drove, where he went to the shops, why we were there, how we became involved through his relative etc. He appeared in good spirits. 

When I asked the geriatrician which mental illness the patient had, she replied “he may have dementia.” At no point did the patient make any threats to harm himself, others, or damage property. 

In over ten years of ambulance work, I have never had a geriatrician ITO a patient, nor have I needed to remove a healthy elderly person with capacity from their home. … in my opinion, he did not meet the criteria for an ITO. However, I do not have the legislated capacity to initiate or withdraw an ITO.  

My questions are therefore as follows:

  • Given I am a registered paramedic, what legal ramifications are there for following an ITO that may not be valid?
  • Thankfully, after a number of hours, the patient decided to come to hospital, therefore not requiring physical restraint nor sedation. If I were to provide either restraint and/or sedation to an ITO that is invalid, what are the issues with this? Would this then be considered an assault, for example?

The advice I received from more senior staff was that we can’t do anything if an ITO is put in place and that we are a transport mechanism only. However, in the era of registration, I’m uncertain how this works.

The Law

The Mental Health Act 2009 (SA) s 20 says:

(1) A medical practitioner or authorised mental health professional may make an order that a person receive treatment as an inpatient in a treatment centre (a “level 1 inpatient treatment order”) if it appears to the medical practitioner or authorised mental health professional, after examining the person, that—

(a) the person has a mental illness; and

(b) because of the mental illness, the person requires treatment for the person’s own protection from harm (whether physical or mental, and including harm involved in the continuation or deterioration of the person’s condition) or for the protection of others from harm; and

(ba)  the person has impaired decision-making capacity relating to appropriate treatment of the person’s mental illness; and

(c) there is no less restrictive means than an inpatient treatment order of ensuring appropriate treatment of the person’s illness.

(2) In considering whether there is no less restrictive means than an inpatient treatment order of ensuring appropriate treatment of the person’s illness, consideration must be given, amongst other things, to the prospects of the person receiving all treatment of the illness necessary for the protection of the person and others on a voluntary basis or in compliance with a community treatment order.

According the Act (s 3), mental illness means ‘means any illness or disorder of the mind’.  That is a very broad definition and gives little assistance. The Diagnostic and Statistical Manual of Mental Disorders 5 (American Psychiatric Association Publishing, 2022) says

Dementia is subsumed under the newly named entity major neurocognitive disorder …

… the major NCD definition is somewhat broader than the term dementia, in that a diagnosis of major NCD can be made if there is a significant cognitive decline in only one cognitive domain, whereas a diagnosis of dementia in ICD-10 and ICD-11 (and formerly in DSM-IV) requires multiple cognitive deficits…

This is not the place for a clinical discussion suffice to say that a ‘major neurocognitive disorder …’ (which includes dementia) is a mental illness.

The Mental Health Act s 5A says this about capacity:

For the purposes of this Act, a person will be taken to have impaired decision-making capacity in respect of a particular decision if—

(a) the person is not capable of—

(i) understanding any information that may be relevant to the decision (including information relating to the consequences of making a particular decision); or

(ii) retaining such information; or

(iii) using such information in the course of making the decision; or

(iv) communicating his or her decision in any manner;…

(d)  a person’s decision-making capacity will not be taken to be impaired merely because a decision made by the person results, or may result, in an adverse outcome for the person.

A person may have capacity and still have a mental illness.  What the Act requires is (s 21(1)(ba); emphasis added) is ‘impaired decision-making capacity relating to appropriate treatment of the person’s mental illness’.  The person may be orientated as to time and place, they may have capacity to make some decisions, but may not have capacity to understand etc the information relating to their mental illness.

Finally, before making the order ‘consideration must be given …to the prospects of the person receiving all treatment of the illness necessary for the protection of the person and others on a voluntary basis or in compliance with a community treatment order.’

Section 56 deals with the power of authorised officers (which includes SAAS employed and volunteer ambulance officers authorised by the chief executive officer of SAAS (s 3)) to transport mentally ill patients. That section says:

(1)        This section applies to a person if—

(a)        an authorised officer believes on reasonable grounds that the person is a patient in respect of whom— …

(ii)        a patient transport request has been issued under section 55(1); or …

(c)        it appears to an authorised officer that—

(i)         the person has a mental illness; and

(ii)        the person has caused, or there is a significant risk of the person causing, harm to himself or herself or others or property or the person otherwise requires medical examination.

A ‘patient transport request’ may be made by the doctor who makes the level I inpatient order.  The request (s 55(2)):

… must be—

(a) directed to authorised officers and police officers generally; and

(b) in writing in the form approved by the Chief Psychiatrist.

A patient who is taken into the care of an ambulance officer must be given a copy of the request and a written ‘statement of rights’ (s 55(3)).

Where there is a patient transport request or the officer is of the opinion that s 56(1)(c ) (quote above) applies, then the authorised officer may (s 56(3); emphasis added):

… exercise  the following powers in relation to a person to whom this section applies:

(a) the authorised officer may take the person into his or her care and control;

(b) the authorised officer may transport the person from place to place;

(c) the authorised officer may restrain the person and otherwise use force in relation to the person as reasonably required in the circumstances;

(d) the authorised officer may restrain the person by means of the administration of a drug when that is reasonably required in the circumstances;

(e) the authorised officer may enter and remain in a place where the authorised officer reasonably suspects the person may be found;

(f) the authorised officer may search the person’s clothing or possessions and take possession of anything in the person’s possession that the person may use to cause harm to himself or herself or others or property.

If the authorised officer takes ‘the person into his or her care and control’ then the officer (s 55(4)(a); emphasis added):

must, as soon as practicable—…

(b) in the case of a person referred to in subsection (1)(b) [ie a person for whom a patient transport request has been issued] —transport the person, or arrange for the person to be transported by some other authorised officer or by a police officer, to a treatment centre; or

(c)  in the case of a person referred to in subsection (1)(c) [ie where the paramedic is acting on their own initiative] —

(i)         transport the person, or arrange for the person to be transported by some other authorised officer or by a police officer, to a treatment centre or other place for medical examination;…

Discussion

That is a lot of law to make sense of. If we go back to the given facts we’re told ‘the geriatrician approached them and stated, they had decided to place the patient under a level one inpatient treatment order’.  That they had ‘decided’ to make a level 1 treatment order is not sufficient. They have to actually make the order. And the order has to be in writing (s 51(3)). If they want the ambulance service to transport the patient they have to complete, in writing, a patient transport request (s 55(2)).  If those documents are not completed and, in this case, handed to the ambulance officers there is no order.

In that case the only power the ambulance officer has to detain and transport the patient is under s 56(1)(c) that is if the officer forms their own opinion that

(i)         the person has a mental illness; and

(ii)        the person has caused, or there is a significant risk of the person causing, harm to himself or herself or others or property or the person otherwise requires medical examination.

We’re told that in this case the ambulance officers did not hold those opinions.

First conclusion

Either an ITO has been made, or it has not. If a doctor says words to the effect ‘I’m going to complete an ITO, in the meantime I want you to take the patient to hospital’ that is not sufficient. The doctor must complete the ITO and the patient transport request. 

The patient transport request is directed to authorised officers and police ‘generally’ so it may be that the officers don’t actually have the document in their possession, but it has to exist, and the fact of its existence must be communicated to the officers before they can believe ‘on reasonable grounds that the person is a patient in respect of whom— …a patient transport request has been issued …’.

Section 56 says that an authorised officer, having received or being aware of those documents may take the person into their care and control and then must transport them. The fact that taking them into their care and control is phrased as ‘may’ does not, I think, give absolute discretion. The intention is the person is to be transported but a police officer for example may decide not to take the person into their care and control because an ambulance officer is there.  And if an officer forms the view that s 56(1)(c) applies he or she may not take the person into their care if satisfied someone else will take the person to a treatment centre.

I would agree that if an ITO has been made (ie it has been put in writing, not a mere statement of intention) and a patient transport request has been made, then it is the duty of the ambulance officers to transport the patient subject to what I will say below about paramedic ethics.  They cannot say ‘I may, but I chose not to’ just because they think the doctor should not have made the order.

If an ITO has not been made, even if a doctor says that he or she intends to make it, or the doctor says that they are of the view that the patient meets the criteria for transport then that is not sufficient. In that case the paramedics must be satisfied that s 56(1)(c) applies (and the doctor’s opinion would be something they should consider) but if after considering everything they are of the view that s 56(1)(c) does not apply then they should not take the patient into their care and custody. If they do that could be both an assault and a false imprisonment.

Paramedic code of conduct

Even if giving effect to an ITO that you think should not have been made is lawful, it does not mean that it is the right thing to do. Paramedics are registered health professionals. The Code of Conduct is relevant here.  It says (inter alia):

1. Put patients first – Safe, effective and collaborative practice

Principle 1: Practitioners should practise safely, effectively and in partnership with patients and colleagues, using patient-centred approaches, and informed by the best available evidence to achieve the best possible patient outcomes….

5. Working with other practitioners

Principle 5: Good relationships with colleagues and other practitioners strengthen the practitioner-patient relationship, collaboration and enhance patient care. Good relationships require healthcare to be free of discrimination, bullying and harassment.

5.1 Respect for colleagues and other practitioners

Good care is enhanced when there is mutual respect and clear communication between all health professionals involved in the care of the patient.

Good practice includes that you:

a. communicate clearly, effectively, respectfully and promptly with colleagues and with other practitioners caring for the patient

b. acknowledge and respect the contribution of all practitioners involved in the care of the patient, and

c. behave professionally and courteously toward colleagues and other practitioners at all times, including when using social media.

This has implications where the paramedic disagrees with the doctor regardless of whether an ITO has been made or not. The focus on patient centred care and working with colleagues means that a paramedic should raise their concerns if they think the criteria for transport or the making of the ITO has not been met.  A paramedic would need to understand that the factors for making an ITO are not the same as the factors that a paramedic needs to consider when deciding to take someone into their care and control on their own initiative.  Respect for colleagues means recognising that a doctor and in particular a specialist geriatrician or mental health practitioner may be better placed to make a diagnosis but that should not stop a fellow health practitioner (ie a paramedic) raising concerns to make sure that the doctor is confident in their diagnosis and that patient care (rather than getting off on time, or covering your arse) is given priority.

Failure to ‘communicate clearly, effectively, respectfully and promptly with colleagues’ could amount to unsatisfactory conduct if there are poor patient outcomes and where the paramedic had concerns about the proposed treatment.

In an extreme case a paramedic could be justified in refusing to transport. The sort of case I have in mind is where the paramedic’s assessment goes beyond a mere difference of opinion and he or she is satisfied that the doctor is acting in bad faith. For example if a GP on a house visit, faced with a patient who refuses, against advice to consent to transport to hospital and the doctor says “I haven’t time for this, I’ll complete an ITO and the hospital can deal with it’. Or a doctor who tells the patient’s family that treatment cannot be imposed but who, after concerted pressure, says ‘I’ll complete an ITO and then the ambulance will take him” and who then admits to the paramedic that it was the only way to keep the family quiet. One would hope those situations would never arise and that’s not the situation described in the given facts. Suffice to say that if there is no doubt that the doctor is signing an ITO for an improper purpose and the paramedic can see nothing to suggest the patient is mentally ill then I think the paramedic could be justified in refusing to transport. However before it go to that, consistent with the discussion above, one would hope the paramedic raises their concerns with the doctor and if necessary through the SAAS chain of command.

Second conclusion

The Code of Conduct and paramedic status means it cannot be true that ‘we can’t do anything if an ITO is put in place and that we are a transport mechanism only’.  Paramedics are health professionals and if you are going to care for the patient you need to understand on what basis the doctor has made the ITO and if your assessment of the situation raises questions, you need to ask them.

Conclusion

The questions asked were:

  • Given I am a registered paramedic, what legal ramifications are there for following an ITO that may not be valid?

The ITO is written by a doctor and the doctor is accountable for his or her decision and demonstrating that they considered the factors listed in s 21 and only those factors. If they have written an ITO and a patient transport request, then a paramedic may exercise those powers in s 56 and must transport the patient.  The paramedic would have a defence to any allegation of assault or false imprisonment given the statute.

The legal ramifications for the paramedic are if he or she assesses the scene and has doubts about the ITO (remembering that the criteria for an ITO are not the same as the criteria a paramedic must apply if they are making the decision to transport a patient) then I think the paramedic is obligated to raise his or her concerns either with the doctor or the chain of command.  Failure to do so could be grounds for a professional complaint for failure to honour the paramedicine code of conduct.

  • .. If I were to provide either restraint and/or sedation to an ITO that is invalid, what are the issues with this? Would this then be considered an assault, for example?

If it turns out the doctor has issued an ITO and patient transport request in circumstances not justified by the Act then that would not deny the paramedic a defence based on the statute. The ITO has been issued, the paramedic may do those things listed in s 56 provided of course that they represent good paramedic care and are in accordance with SAAS clinical practice guidelines. If you believe the ITO has been issued and the only way to safely transport the patient is to sedate them then you can do that even if you would not have made a decision to transport under s 55(1)(c).

As noted above however, if you have concerns about the doctor’s decision making you need to raise them, and the doctor needs to consider your views.  If the doctor confirms that they are satisfied that the criteria for the ITO and the patient transport request have been met then you can act, but you should make sure you record your conversation and concerns.

This blog is made possible with generous financial support from the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), Natural Hazards Research Australia, NSW Rural Fire Service Association and the NSW SES Volunteers Association. I am responsible for the content in this post including any errors or omissions. Any opinions expressed are mine, and do not necessarily reflect the opinion or understanding of the donors.

Categories: Researchers

Employment protection when responding to a s 44 fire

13 March, 2023 - 12:44

Today’s question comes as a comment on the post FRNSW responding to a s 44 fire (March 19, 2018). The comment/question is ‘if there is a section 44 so say a strike team to a bush fire can my employer stop me from attending?’ 

Federal law

The Fair Work Act 2009 (Cth) provides for community service leave.  Section 108 says ‘An employee who engages in an eligible community service activity is entitled to be absent from his or her employment’ for the time they are engaged in the community service activity.  The definition of ‘community service activity’ includes ‘a voluntary emergency management activity’ (s 109(1)(b)).  Section 109(2) tells us that:

An employee engages in a voluntary emergency management activity if, and only if:

An employee engages in a voluntary emergency management activity if, and only if:

(a) the employee engages in an activity that involves dealing with an emergency or natural disaster; and

(b) the employee engages in the activity on a voluntary basis (whether or not the employee directly or indirectly takes or agrees to take an honorarium, gratuity or similar payment wholly or partly for engaging in the activity); and

(c) the employee is a member of, or has a member-like association with, a recognised emergency management body; and

(d) either:

(i) the employee was requested by or on behalf of the body to engage in the activity; or

(ii) no such request was made, but it would be reasonable to expect that, if the circumstances had permitted the making of such a request, it is likely that such a request would have been made.

Fire and Rescue NSW is a ‘fire-fighting’ body and so is a recognised emergency management bodies (s 109(3)(b)).

An employee seeking such leave must give notice to their employer (s 110(2)):

(a) …as soon as practicable (which may be a time after the absence has started); and

(b) must advise the employer of the period, or expected period, of the absence.

The Fair Work Ombudsman says ‘There is no set limit on the amount of leave an employee is entitled to’.

The Ombudsman’s fact sheet also says:

Community service leave forms part of the National Employment Standards (NES). The NES apply to all employees covered by the national workplace relations system, regardless of any award, agreement or contract.

I am not an employment lawyer so don’t pretend to understand which employees are ‘covered by the national workplace relations system’ and which are not but suffice to say the system does not cover everyone. My correspondent would have to get advice from elsewhere as to whether they are ‘covered by the national workplace relations system’.

Discussion

Arguably, responding as a retained firefighter with Fire and Rescue NSW is not a voluntary activity as retained firefighters are employed.  They are paid for their service in a way that is more than an ‘an honorarium [or] gratuity’, it is a part-time salary and their terms of employment are governed by the Crown Employees (Fire And Rescue NSW Retained Firefighting Staff) Award 2022  (September 2022). It is a second job.

On the other hand, a fire-fighter’s response is voluntary in the sense that it’s not compulsory. Presumably a retained firefighter can volunteer to respond as part of a s 44 strike team rather than be ordered or compelled to in the way that a reserve solider can be ordered into full time military service.

In the Serve your local community as an on-call firefighter: Candidate Information Pack Fire and Rescue NSW says (p. 12):

We value the support that employers give to their employees who work as an on-call firefighter. The support of employers is critical and invaluable, and without it some individuals would not be in a position to respond to emergency incidents in their local community.

And at p. 20

On-call firefighters must attend at least 33% of the total station responses in any six-month period…

They do not suggest that retained firefighters are eligible for community service leave, which they would be for any call out, not just a s 44 response. It may be that FRNSW wants to avoid giving advice and leave it to applicants to talk to their employers about availability and, as noted, community service leave is not available to all employees. 

My own interpretation is that where the Act says ‘the employee engages in the activity on a voluntary basis (whether or not the employee directly or indirectly takes or agrees to take an honorarium, gratuity or similar payment wholly or partly for engaging in the activity)’ it is distinguishing between a volunteer and an employee rather than a person who can choose whether to attend this response or not.  The reference to ‘honorarium, gratuity or similar payment’ tells us that a volunteer who is reimbursed for their out of pocket expenses or is given a meal allowance is still engaging ‘in the activity on a voluntary basis’ whereas a person who is employed to respond (even if on a part-time, on-call basis) is not a volunteer.

I can find no case law to help interpret the section so it may be a matter that will be tested in the Fair Work Commission or Federal Court at some future date.

State law

The State Emergency and Rescue Management Act 1989 (NSW) Part 3A provides for employment protection for volunteer emergency workers. These protections apply along with the Federal protections discussed above (Fair Work Act 2009 (Cth) s 112).  That means they apply to employees who are eligible for community service leave as well as those who are not because they are not ‘covered by the national workplace relations system’.

The State protections only apply in the event of a declared state of emergency or where the Premier has made an order declaring that the employment protection provisions apply (s 60AA).  It follows that the provisions do not automatically apply when a s 44 order is made. The Premier must make a separate order under s 60D of this Act to extend the protections to a s 44 response.

Where there is a state of emergency (declared under s 33) or an order (s 60D) then the Act says:

60B EMPLOYEES TAKING PART IN EMERGENCY OPERATIONS PROTECTED FROM VICTIMISATION

An employer must not victimise an employee of the employer for being absent if the absence was due to the employee taking part, as a member of an emergency services organisation, in emergency operations to which this Part applies.

60C WHAT CONSTITUTES VICTIMISATION OF EMPLOYEES

An employer victimises an employee if the employer–

(a) dismisses the employee from employment with the employer or terminates the engagement of the employee by the employer, or

(b) alters the employee’s position in his or her employment with the employer, or alters the circumstances of the employee’s engagement by the employer, to the employee’s prejudice, or

(c) otherwise injures the employee in his or her employment with, or engagement by, the employer.

Fire and Rescue NSW is an ‘emergency services organisation’ (s 3).

Conclusion

The question was ‘‘if there is a section 44 so say a strike team to a bush fire can my employer stop me from attending?’  The answer is ‘no’ if the employee is covered by ‘the national workplace relations system’, they have complied with the notice requirements and they are responding ‘on a voluntary basis’.

It is not clear whether responding with Fire and Rescue NSW constitutes a voluntary response given that retained fire fighters are employees. My interpretation is that responding as a retained fire-fighter is not responding ‘on a voluntary basis’ but I can see that the issue would be arguable. That may be a matter that will be tested in the future should an employer seek to penalise an employee for responding with FRNSW.

Where there is a state of emergency or an order under s 60D, employees (whether part of ‘the national workplace relations system’ or not) are protected by the State Emergency and Rescue Management Act, and cannot be victimised by being dismissed, for their emergency response.

Under both the federal law and the state law, there is no obligation to pay the employee for their time when they are responding as part of their emergency service duties.

This blog is made possible with generous financial support from the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), Natural Hazards Research Australia, NSW Rural Fire Service Association and the NSW SES Volunteers Association. I am responsible for the content in this post including any errors or omissions. Any opinions expressed are mine, and do not necessarily reflect the opinion or understanding of the donors.

Categories: Researchers

The ‘person responsible’ at an out of hospital emergency – NSW

12 March, 2023 - 11:00

A correspondent wrote this as a comment on the post Legal justification for treating the unconscious (April 11, 2021):

“Consent is not necessary, however, where a surgical procedure or medical treatment must be performed in an emergency and the patient does not have the capacity to consent and no legally authorised representative is available to give consent on his or her behalf.”

Hi Michael, [NSW] in this case if the presentation of the patient lacks capacity due to an acute illness -meets the definition of emergency treatment but a person responsible says no.

Does a health care professional have a right to do in their clinical opinion is best or do we still need to convince the person responsible that their decision to do nothing will likely lead to further harm?

My correspondent’s question referred to ‘a health care professional’.  We know that there are 15 registered health professions. In this discussion, given the subject matter of this blog, I’m going to start with paramedics and then talk about medical practitioners. 

This is in fact a complex question and there are multiple variables that need to be considered.  First we have to consider issues of consent. There are three possibilities 1) there is consent to treatment; 2) there is neither consent nor refusal and 3) there is a refusal of consent.

Second, we have to consider what role a person responsible is playing (and here I use the term to refer to a person on scene, whether in hospital or out of hospital and who is clearly with the patient and has a close and ongoing relationship with the patient, rather than as a legal term of art which I will come to later). When the person says ‘no’ to treatment that ‘no’ may mean one of three things. 

To explain that let me quote, again, Lord Goff from In Re F [1990] 2 AC 1.  In that case His Lordship was trying to identify the principle that justifies treating people who cannot consent (ie situation (2) in my list above). He rejected the notion of ‘implied consent’ and said, rather:

The principle is one of necessity, not of emergency.

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

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

Two relevant factors are 1) ‘intervention cannot be justified when … it is contrary to the known wishes of the assisted person’ and 2) ‘the action taken must be such as a reasonable person would in all the circumstances take, acting in the best interests of the assisted person.’

When the person responsible (used in the non-technical sense) says ‘no’ to proposed treatment they may be telling the paramedics that the treatment is contrary to the wishes of the patient. The person who is there may well know the patient and what they want. The situation would be much easier if the patient’s wishes had been recorded in writing and in accordance with a relevant form provided for either in legislation (eg Medical Treatment Planning and Decisions Act 2016 (Vic); Advance Care Directives Act 2013 (SA)) or policy (in NSW see the NSW Health Consent to Medical and Healthcare Treatment Manual (Consent Manual) (2020) Section 6, Refusal of Treatment).  But in those states with legislation the common law continues to apply (see for example Medical Treatment Planning and Decisions Act 2016 (Vic) s 10) and in states without legislation (eg NSW) the relevant law is the common law. 

The common law does not require a refusal to be in specific form In Malette v Shulman (1990) 67 DLR (4th) 321.  Ms Malette was a Jehovah’s witness who carried a card saying she did not want a blood transfusion under any circumstances. The court said the treating doctor should have honoured that even though it meant she would have died.   Robins JA said:

I do not agree… that the Jehovah’s Witness card can be no more than a meaningless piece of paper. I share the trial judge’s view that, in the circumstances of this case, the instructions in the Jehovah’s Witness card imposed a valid restriction on the emergency treatment that could be provided to Mrs. Malette and precluded blood transfusions.

Robins JA found that she had:

… chosen in the only way possible to notify doctors and other providers of health care, should she be unconscious or otherwise unable to convey her wishes, that she does not consent to blood transfusion…

In today’s world, with the legislation in place a card is no longer ‘the only way possible to notify doctors’ of one’s wishes but it still doesn’t deny that if the patient’s wishes are known they should be respected. In NSW there is no legislation. As the Consent Manual says (at [6.2.1]):

There is no standard form or template for an ACD in NSW, although there are several documents in use, including a template available on the NSW Health website … An ACD does not need to be in a particular format and does not need to have been witnessed.

The card in the wallet is still sufficient in NSW.

To return to our scenario, the bystander person responsible may be communicating the patient’s wishes.  I think context is all important so one would want to consider the situation – if the evidence is that the patient is being cared for in a terminal stage of a terminal illness and this person is their carer one may be more confident that this is the person’s wishes.  If it’s an unexpected, acute illness the person speaking may have had discussions with the patient about their wishes in a general sense but they cannot know what their wishes are in an event that was not expected or anticipated.

Second then the person may be communicating something about the patient’s values. What is in a person’s best interests is not an objective issue. Different people have different interests and values and so they have to be considered when deciding whether the proposed treatment is ‘in all the circumstances … in the best interests of the assisted person’ (see Listening to the patient’s family (June 2, 2022)).

In these scenarios the person communicating with the paramedics may say ‘no’ to treatment but that’s not a definitive ‘no’. If there is any doubt (and given paramedics will not have either time nor (usually) history ie this will be the first time they’ve met the patient) then the presumption will be to treat the person. The paramedics do not ‘know’ the patient’s wishes and cannot at that point infer that withholding treatment is in the patient’s best interests.   I caution though, never say never, there may be circumstances and context where there is no doubt but let us put them to one side.

The third option is that the person is the ‘person responsible’ as defined by law – so now I use the term in its technical meaning. In NSW the concept is found in the Guardianship Act 1987 (NSW). Section 33A defines who is a ‘person responsible’ It is a hierarchical list, ie medical staff should work their way down the list and once they have identified a person responsible they don’t need to, in fact cannot, continue down the list to find everyone who  could be a person responsible. Section 33A says:

That hierarchy is, in descending order:

(a)        the person’s guardian, if any, but only if the order or instrument appointing the guardian provides for the guardian to exercise the function of giving consent to the carrying out of medical or dental treatment on the person,

(b)       the spouse of the person, if any, if:

(i)         the relationship between the person and the spouse is close and continuing, and

(ii)        the spouse is not a person under guardianship,

(c) a person who has the care of the person,

(d) a close friend or relative of the person.

A person responsible can give (s 36) (and by implication refuse to give) consent to medical treatment but it’s not that simple. First before a person responsible can give consent they must be asked to give consent. The request must

… specify:

(a)        the grounds on which it is alleged that the patient is a patient to whom this Part applies,

(b)       the particular condition of the patient that requires treatment,

(c)        the alternative courses of treatment that are available in relation to that condition,

(d)       the general nature and effect of each of those courses of treatment,

(e)        the nature and degree of the significant risks (if any) associated with each of those courses of treatment, and

(f)        the reasons for which it is proposed that any particular course of treatment should be carried out.

One can see that this list is relevant in a place of extended health care, but not in an out of hospital emergency where a patient has ‘an acute illness’ and I would suggest there is neither the capacity for paramedics to frame the request for consent in those terms, nor for the person responsible to consider all that information along with the factors listed in s 36(3) in order to make a decision.  If that’s correct if the person at the scene is the ‘person responsible’ (now using that term as defined in the Act) their statement ‘no’ cannot be a valid ‘consent’ (if consent includes ‘refusal of consent’) as the requirements in s 36 have not and I suggest cannot be met. If that’s the case we are back to the scenario of neither consent nor refusal of consent.

Section 37(1) says (emphasis added):

Medical or dental treatment may be carried out on a patient to whom this Part applies without consent given in accordance with this Part if the medical practitioner or dentist carrying out or supervising the treatment considers the treatment is necessary, as a matter of urgency:

(a)        to save the patient’s life, or

(b)       to prevent serious damage to the patient’s health, or

(c)        except in the case of special treatment–to prevent the patient from suffering or continuing to suffer significant pain or distress.

Most paramedics are not medical practitioners.  A medical practitioner is a person registered with the medical board – a doctor. Further medical treatment is defined (s 33) as

medical treatment (including any medical or surgical procedure, operation or examination and any prophylactic, palliative or rehabilitative care) normally carried out by or under the supervision of a medical practitioner

Paramedics provide care without supervision of a medical practitioner – today they make their own diagnosis and treatment decisions.  It is my argument that s 37 does not apply to paramedics.  The point of s 37 is to allow doctors to treat people in hospital or other care facilities, without going through the process of getting consent from the person responsible, where the treatment is required as a matter of urgency.  It is not relevant in out of hospital emergency care.  (Though it could be made applicable if they changed it from ‘medical practitioner’ to ‘health practitioner’, but I digress).

But s 37 is not much different to the common law explained in In Re F above.  The only difference is that it is not clear whether this section could be relied on even when it is known that the treatment is against the wishes of the patient. The Act does not explicitly say what effect a prior refusal has, but NSW Health takes the view that the patient’s refusal remains binding. The Consent Manual says (at [6.2.3]:

Where there is a known, available, and valid ACD, it cannot be overridden in an emergency. The patient must only receive treatment that is consistent with the ACD. If a patient presents with an ACD or other document that refuses treatment, a copy of the document should be made and placed on the patient’s Health Record.

The NSW Health approach is that s 37 must apply in the second scenario at the start of this post – ie where there is neither consent, nor a refusal of consent.  Doctors (and dentists) can proceed with treatment even though they have no consent and provided the patient themselves has not made clear that they do not want the treatment.

Discussion

That is a very long exploration of the law to try to answer what looked like a simple question. To return to the question the scenario was:

Hi Michael, [NSW] in this case if the presentation of the patient lacks capacity due to an acute illness -meets the definition of emergency treatment but a person responsible says no.

Does a health care professional have a right to do in their clinical opinion is best or do we still need to convince the person responsible that their decision to do nothing will likely lead to further harm?

Paramedics

If we assume we’re talking about paramedics and an out-of-hospital emergency then:

The person who says ‘no’ is not giving a binding refusal. They may be giving important information to allow the paramedics to assess whether the proposed treatment is ‘contrary to the known wishes of the assisted person’ or would not ‘in all the circumstances’ be ‘in the best interests of the assisted person’. Those considerations are important in making a treatment decision, but they do not determine the matter. If in any doubt, and in the absence of written advanced care directive there is likely to be doubt (but remember the wisdom of ‘never say never’ and ‘context is everything’) then yes the paramedics as health care practitioners, based on the common law of necessity, may provide care that ‘in their clinical opinion’ is in the patient’s best interests and they do not need to convince ‘the person responsible that their decision to do nothing will likely lead to further harm’. In those acute out of hospital emergencies, the consent of the ‘person responsible’ cannot be obtained as it would not be possible to meet the requirements set out in s 36.

Medical Practitioners

The answer for medical practitioners in an in-hospital environment is the same save that they can rely on both the common law and the Guardianship Act s 37 to justify the emergency treatment.

The person responsible

The problem here is that practitioners understand about the notion of the person responsible as an alternative source of consent (ie alternative to the patient) and that’s correct.  But it’s not a simple process of ‘the patient’s incapable, can I find the ‘person responsible’?  First as indicated there is a hierarchical list.  Assume for example that a person collapses at home and paramedics attend. The person’s spouse has gone to the shops and the patient is at home with their adult child. The adult child is not the person responsible; the spouse is.

Second to obtain consent, or to allow a person responsible to refuse consent, the process set out in s 36 is to be followed.  That probably cannot be done on the street where diagnosis and prognosis are yet to be confirmed.

The idea of getting consent from the person responsible relates to non-urgent care.  In the case of life-saving care, the common law and s 37 say give the treatment required. 

In the absence of the Guardianship Act, long term care would also be based on the health practitioner’s assessment of the patient’s best interests. Remember that the doctrine identified in In Re F was necessity and not emergency. Lord Goff gave examples of when the principle might apply. He said:

Take the example of an elderly person who suffers a stroke which renders him incapable of speech or movement. It is by virtue of this principle that the doctor who treats him, the nurse who cares for him, even the relative or friend or neighbour who comes in to look after him, will commit no wrong when he or she touches his body.

The Guardianship Act provides that the doctor can look to the person responsible, the person that best knows the patient and their wishes and values, to confirm that treatment should or should not be given. It moves away for medical paternalism, but it doesn’t apply if the patient’s about to die. The doctors don’t have to delay lifesaving care to go through the process in s 36. But if there have been advanced care directives, and treatment decisions made, they should be honoured.

Conclusion

For paramedics the statement that the ‘person responsible’ can consent or refuse consent to emergency care is not well founded. A paramedic will not be able to identify the person responsible nor (usually) will they be able to go through the process required by s 36 to obtain consent. That does not mean that the person at the scene does not have relevant information to give to help inform the paramedic’s decision making and to ensure that they are making a patient centred decision. It remains the case that treatment should not be given to a person who cannot communicate their wishes where the treatment is contrary to the patient’s known wishes or not in the patient’s best interests.  The person at the scene can information relevant to those factors, but if the paramedic has any doubt, and in the absence of a written ACD (noting there is no prescribed from in NSW) then paramedics and doctors can provide treatment that, in their clinical opinion is in the patient’s best interests.  They do not need to convince the bystander – even if they are the person responsible – that a ‘decision to do nothing will likely lead to further harm’.

This blog is made possible with generous financial support from the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), Natural Hazards Research Australia, NSW Rural Fire Service Association and the NSW SES Volunteers Association. I am responsible for the content in this post including any errors or omissions. Any opinions expressed are mine, and do not necessarily reflect the opinion or understanding of the donors.

Categories: Researchers

Charging a RACF for ambulance services provided to a resident

3 March, 2023 - 12:29

Today’s correspondent

…would like to know if NSW Ambulance would be able to recover fees if staff at a Residential Aged Care Facility (RACF) chose to engage services from NSW Ambulance rather than provide nursing serviced that are required by the Quality of Care Principles 2014 (Cth) (made under the Aged Care Act 1997 (Cth) s 96.1) rather than provide those services themselves. Who would be responsible for the ambulance fee? Considering that most care recipients would hold a Commonwealth Seniors Health Card (or equivalent) and that under Health Services Act 1997 the holder would be exempt of fees from NSW Ambulance.

Example:

Mrs Smith lives in a Residential Aged Care Facility (RACF) and is found to have a problem with urinary catheter. She also holds a Commonwealth Seniors Health Card. The Registered Nurse (RN) calls an ambulance as it is the weekend and he is not trained in catheter replacement. NSW Ambulance attend and take Mrs Smith to the local Emergency Department.

Question:

Who would be responsible for the fees associated with Mrs Smith care? Considering Mrs Smith is exempted under the Health Services Act 1997 and the RACF has a duty to provide care services under Aged Care Act 1997. Would NSW Ambulance have claim to bill the RACF for these services?

Ambulance fees

The power to charge ambulance fees is found in the Health Services Act 1997 (NSW) ss 67K-67ZD.  Section 67K says:

(1) The Health Secretary may charge a fee for ambulance services provided by or on behalf of the Health Secretary.

(2) An ambulance fee may be charged to any person liable for payment of the ambulance fee.

Section 67M says who is liable for the payment of the fee. Relevantly it says, at sub-section (1), ‘A person is liable for payment of an ambulance fee for ambulance services provided to the person.’

Section 67N and the Health Services Regulation 2018 (NSW) r 28 provide that the holder of any of the following concession cards is exempt from the obligation to pay a fee.  The concession cards are:

(a)        a Health Care Card issued on behalf of the Commonwealth of Australia,

(b)       a Pensioner Concession Card issued on behalf of the Commonwealth of Australia,

(c)        a Commonwealth Seniors Health Card issued on behalf of the Commonwealth of Australia,

(d)       a DVA Health Card – For All Conditions (also known as a Gold Card) issued by the Commonwealth Department of Veterans’ Affairs (but not in relation to non-emergency ambulance services and transfers that are not funded by the Department of Veterans’ Affairs),

(e)        a DVA Health Card – For Specific Conditions (also known as a White Card) issued by the Commonwealth Department of Veterans’ Affairs (but only in relation to a specific condition that is funded by the Department of Veterans’ Affairs).

In any NSW Act the term ‘person’ includes ‘an individual, a corporation and a body corporate or politic’ (Interpretation Act 1987 (NSW) s 21).

Who is receiving the service?

If ‘A person is liable for payment of an ambulance fee for ambulance services provided to the person’ we could rephrase the question to ask ‘who is receiving the services?  Is it Mrs Smith who is being transported, or is it the RACF that is receiving a service from both the ambulance service and the public hospital to meet its statutory obligations?’

The provider of residential aged care is required to provide the services listed in the Quality of Care Principles 2014 (Cth) and ‘to maintain an adequate number of appropriately skilled staff to ensure that the care needs of care recipients are met’ (Aged Care Act 1997 (Cth) s 54(1)(a) and (b)).  Cl 7 of the Quality of Care Principles says that ‘an approved provider of a residential care service must … provide the care or service specified…’ in various tables of Schedule 1.

Schedule 1 deals with ‘Care and services for residential care services’. Part 3.8 deals with nursing services and says that a provider must provide nursing services to any recipient who needs them. Nursing services include:

Initial assessment and care planning carried out by a nurse practitioner or registered nurse, and ongoing management and evaluation carried out by a nurse practitioner, registered nurse or enrolled nurse acting within their scope of practice.

Nursing services carried out by a nurse practitioner, registered nurse or enrolled nurse, or other professional appropriate to the service (for example, medical practitioner, stoma therapist, speech pathologist, physiotherapist or qualified practitioner from a palliative care team), acting within their scope of practice.

Services may include, but are not limited to, the following: …

(c)        establishing and reviewing a catheter care program, including the insertion, removal and replacement of catheters; …

If Mrs Smith has a urinary catheter, then the RACF needs to provide the service of ‘removal and replacement’ of the catheter and have ‘an adequate number of appropriately skilled staff to ensure that the care needs of care recipients are met’.  What is adequate is of course debatable. Notwithstanding that there have been RACFs for many years, the obligation to have a nurse on duty 24 hours a day will only come into existence on 1 July 2023 and there are provisions for RACFs to apply for an exemption from that requirement (see Aged Care Amendment (Implementing Care Reform) Act 2022 (Cth); Melinda Hayter, Emily Doak and Victor Petrovic ‘Fears registered nurse shortage will lead to substandard care at regional aged care homesABC News (Online) 22 February 2023; ‘Draft details of RN exemption process releasedAustralian Aging Agenda, 28 February 2023).  An RACF may well argue that they have an ‘adequate’ number of staff even if, at the very moment that Mrs Smith needs her catheter changed, none of those staff are on duty.

Discussion

I think it could be argued that the recipient of the services provided by the ambulance service and the public hospital is the RACF, not the patient. The patient is entitled to look to the RACF for the provision of nursing services. The RACF can meet that obligation by employing relevant staff or by contracting out those services.  If an nurse is working at the RACF but is employed by a nursing agency, the patient would not be expected to pay the nurses wages.  The RACF pays the nurse, the provide the services the RACF is required to pay.  If there is no nurse and the RACF calls for an ambulance to take the resident to hospital for a hospital employed nurse to change the patient’s catheter, then it is arguable the RACF is simply ‘contracting out’ its obligations. Why should the RACF not pay for that in the same way they would pay for an agency nurse to come to the facility.

That would be ‘novel’ in that traditionally ambulance services see that the services they provide are provided to the individual who is receiving care; but that does not mean the argument could not be made.  If the service is indeed being provided to the RACF then the argument would be that they are liable for the payment of the ambulance fee.

No doubt, the RACF would oppose that interpretation or would argue given that the patient is exempt then there is no fee to pass onto them.  All interesting legal arguments.

Conclusion

The question was ‘Would NSW Ambulance have claim to bill the RACF for these services?’ There is no clear answer but it certainly looks arguable. No doubt it would be opposed as it would shake up the RACF industry so it might be something that would end up before a tribunal or court.  But, having read both the Health Services Act 1997 (NSW), the Aged Care Act 1997 (Cth) and the Quality of Care Principles 2014 (Cth) I can see the argument.

This blog is made possible with generous financial support from the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), Natural Hazards Research Australia, NSW Rural Fire Service Association and the NSW SES Volunteers Association. I am responsible for the content in this post including any errors or omissions. Any opinions expressed are mine, and do not necessarily reflect the opinion or understanding of the donors.

Categories: Researchers

Power of NSW RFS to close roads owned or managed by Transport for NSW

28 February, 2023 - 17:37

Today’s correspondent tells me that:

An employee of Transport for NSW [TfNSW] has questioned the powers that the NSW RFS has when operating on TfNSW-controlled land. Reviewing the RF Act 1997, Clause 23 Gives us powers to close a road to deal with a fire or other incident.

23 Closure of streets and public places

The officer in charge of a rural fire brigade or group of rural fire brigades may cause any street or public place in the vicinity of a fire, incident or other emergency to be closed to traffic.

However, the TfNSW employee has raised concerns at incidents we have attended that Clause 27 Prevents us from taking these actions on highways as that are under the control of TfNSW.

27 Permission of certain rail and transport authorities required

The functions conferred by this Division may not be exercised in relation to land or property vested in, or under the control of, Rail Corporation New South Wales, Sydney Metro, Transport for NSW, Sydney Trains, NSW Trains, Residual Transport Corporation of New South Wales, Transport Infrastructure Development Corporation or Rail Infrastructure Corporation without the permission of the Authority or Corporation or of a person authorised by the Authority or Corporation to give the permission.

Are you able to shed any light on this matter?

The Rural Fires Act 1997 (NSW) Dictionary says ‘’function” includes a power, authority or duty’ so where s 27 refers to a function it also refers to the power to close roads (s 23).

I had understood this section applies to rail authorities (noting that the Rail Corporation of NSW is, and I think the Transport Infrastructure Development Corporation and the Rail Infrastructure Corporation are now, the Transport Asset Holding Entity of New South Wales (or TAHE) (Transport Administration Act 1988 (NSW) s 4). The TAHE website says “TAHE is the owner of an extensive portfolio of railway networks across NSW, including tracks, trains, stations, significant land holdings around stations including retail spaces.”

It may make sense to restrict the power to close train lines. Diverting or stopping a train is not the same as parking an appliance across the road and setting up diversions on other roads and controlling traffic with a ‘stop/slow’ bat.  But the section does refer to Transport For NSW.

Some history

When it was passed, the Rural Fires Act 1997 (NSW) s 27 said:

The functions conferred by this Division may not be exercised in relation to land or property vested in, or under the control of, the State Rail Authority or Rail Access Corporation without the permission of the Authority or Corporation or of a person authorised by the Authority or Corporation to give the permission.

There was no mention of s 27 in the Minister’s second reading speech. The explanatory memoranda filed with the Bill (that became the Act) said:

Clauses 22-27 give some particular examples of actions that officers of rural fire brigades and groups of rural fire brigades may take in exercising functions under the proposed Act. The powers include the power to enter premises, close roads, pull down fences, establish fire breaks and use water.

There was no specific explanation as to why s 27 was required.

The Transport Administration Amendment (Rail Management) Act 2000 (NSW) amended the section, so it then said (additions shown in bold):

The functions conferred by this Division may not be exercised in relation to land or property vested in, or under the control of, the State Rail Authority or Rail Infrastructure Corporation without the permission of the Authority or Corporation or of a person authorised by the Authority or Corporation to give the permission.

The Transport Administration Amendment (Rail Agencies) Act 2003 further amended the section, so it now said (additions in bold):

The functions conferred by this Division may not be exercised in relation to land or property vested in, or under the control of, the State Rail Authority, Rail Corporation New South Wales, Transport Infrastructure Development Corporation or Rail Infrastructure Corporation without the permission of the Authority or Corporation or of a person authorised by the Authority or Corporation to give the permission.

A further amendment, this time by the State Revenue and Other Legislation Amendment (Budget) Act 2007 removed the words ‘State Rail Authority’ so the section then read:

The functions conferred by this Division may not be exercised in relation to land or property vested in, or under the control of, Rail Corporation New South Wales, Transport Infrastructure Development Corporation or Rail Infrastructure Corporation without the permission of the Authority or Corporation or of a person authorised by the Authority or Corporation to give the permission.

In 2017 it was further amended by the Transport Administration Amendment (Transport Entities) Act 2017 and now made reference to Transport for NSW. The section then said:

The functions conferred by this Division may not be exercised in relation to land or property vested in, or under the control of, Rail Corporation New South Wales, Transport for NSW, Sydney Trains, NSW Trains, Residual Transport Corporation of New South Wales, Transport Infrastructure Development Corporation or Rail Infrastructure Corporation without the permission of the Authority or Corporation or of a person authorised by the Authority or Corporation to give the permission.

The final amendment made by the Transport Administration Amendment (Sydney Metro) Act 2018 added the words ‘Sydney Metro’ after Rail Corporation New South Wales to give the section as it appears today:

The functions conferred by this Division may not be exercised in relation to land or property vested in, or under the control of, Rail Corporation New South Wales, Sydney Metro, Transport for NSW, Sydney Trains, NSW Trains, Residual Transport Corporation of New South Wales, Transport Infrastructure Development Corporation or Rail Infrastructure Corporation without the permission of the Authority or Corporation or of a person authorised by the Authority or Corporation to give the permission.

Critically we can see that until the reference to Transport for NSW in 2017 the section had been limited to rail authorities and the rail network.  On 29 March 2017, when introducing the Transport Administration Amendment (Transport Entities) Act 2017, Dominic Perrottet (Member for Hawkesbury and then Treasurer, and Minister for Industrial Relations) said:

The Berejiklian-Barilaro Government is currently delivering more than $40 billion of transport projects for the people of New South Wales. It is a long overdue investment to ensure an efficient, safe and technologically advanced transport future. In the 2015-16 budget the Government committed to the introduction of a Transport Asset Holding Entity [TAHE] to manage the State’s portfolio of transport assets better and more commercially. This bill delivers on that previous commitment through the introduction of amendments to the Transport Administration Act. As part of the November 2011 public transport reforms a new operating model was established for the provision of government transport services within New South Wales. These reforms established Transport for NSW [TFNSW] to be responsible for the delivery of transport services.

In addition, in 2012 RailCorp was reformed and Sydney Trains and NSW Trains were established as government-owned operators to deliver services under contract to Transport for NSW and drive customer service improvements…

The entire second reading speech was about the changes to the rail network. There was no specific mention of the changes to the Rural Fires Act. The explanatory note filed with the legislation also makes no mention of the changes to the Rural Fires Act other than to note that there are ‘consequential amendments to other Acts and regulations.

Roads and streets

Some websites (eg https://www.rd.com/article/difference-between-streets-roads-avenues) say that road’ ‘generally describes any throughway that connects two points’ but a ‘street’ is a public road that has  ‘buildings on both sides’.  That distinction is not supported by any NSW law thought it may be an historical rule and may reflect how roads are named. “Street” is not a particular classification under the Roads Act 1993 (NSW) ss 46-52A and the Roads Act does not use the term ‘street’.  It would be absurd xto think that the Rural Fire Service could close a street with buildings on both sides but not a road with say farmland on both sides. I infer for the rest of this discussion that the terms ‘road’ and ‘street’ are synonymous.

Today

Today, as noted, the act refers to ‘land or property vested in, or under the control of …Transport for NSW’.  Transport for NSW (TfNSW) is established by the Transport Administration Act 1988 (NSW) s 3C. On its website it is described as ‘the lead agency of the NSW Transport cluster’.  It is the public service unit that assists the various Ministers in their administration of the transport legislation.   

TfNSW’s functions appear to be more at the level of policy and supervision but there is more to it than that. TfNSW is responsible for driver licensing and vehicle registration (Road Transport Act 2013 (NSW)).  TfNSW is also responsible for many roads.

The Roads Act 1993 (NSW) s 7 says:

(1) TfNSW is the roads authority for all freeways.

(2) The Minister administering the Crown Land Management Act 2016 is the roads authority for all Crown roads.

(3) The regulations may declare that a specified public authority is the roads authority for a specified public road, or for all public roads within a specified area, other than any freeway or Crown road.

(4) The council of a local government area is the roads authority for all public roads within the area, other than–

(a) any freeway or Crown road, and

(b) any public road for which some other public authority is declared by the regulations to be the roads authority.

Pursuant to s 7(3), the Roads Regulation 2018 (NSW) Sch 1 provides that TfNSW is the roads authority for the M5 East Motorway; the Cross City Tunnel; the Lane Cove Tunnel; Southern Cross Drive; a temporary public road in Randwick that is part of the Sydney Light Rail; Alpine Way and Kosciuszko Road and the Lake Hume Village;  

Section 145 says:

145 ROADS AUTHORITIES OWN PUBLIC ROADS

(1) All freeways are vested in fee simple in TfNSW.

(2) All Crown roads are vested in fee simple in the Crown as Crown land.

(3) All public roads within a local government area (other than freeways and Crown roads) are vested in fee simple in the appropriate roads authority.

(4) All public roads outside a local government area (other than freeways and Crown roads) are vested in fee simple in the Crown as Crown land.

What we can say is that a freeway (Roads Act 1983 (NSW) s 48) (but not a highway – Roads Act 1983 (NSW) s 47) is property vested in TfNSW (s 145(1)) as are the roads where TfNSW has been made the roads authority (s 145(3)). Roads might also be ‘under the control’ of TfNSW where it is ‘acting’ as the roads authority even if it is not the roads authority (Roads Act 1993 (NSW) ss 64 ‘TfNSW may exercise functions of roads authority with respect to certain roads’ and 66 ‘TfNSW may exercise the functions of a roads authority in the unincorporated area’). If that is correct it is not only the case that many roads are ‘property vested in’ of TfNSW but that it would be almost impossible for a brigade captain to know whether he or she is on a road that is ‘under the control of’ of TfNSW.  If that is correct it makes s 23 of the Rural Fires Act problematic.

It is however consistent with one of the functions of TfNSW. The Transport Administration Act 1988 (NSW) Sch 1 cl 1(g) says that one of the functions of TfNSW is

The management of incidents affecting the efficiency of road and public transport networks, including the co-ordination of communications with and responses by relevant agencies.

TfNSW can presumably only fulfil that function if it is aware of emergencies.

It is interesting to note there is no provision equivalent to s 27 in the Fire and Rescue NSW Act 1989 (NSW). Fire and Rescue NSW can all close a street (Fire and Rescue NSW Act 1989 (NSW) s 14) including a TfNSW road, but it appears that the Rural Fire Service cannot.

Closing a road or warning of danger

I have argued earlier that I think there is a difference between closing a road, and telling drivers that the road is impassable – see Self Help Road Closures (October 14, 2018). For example if there is a tree across the road, it’s the tree and not the SES that have closed the road even if the SES have a truck set up and officers telling drivers they cannot get through. It may be that the RFS telling people they cannot proceed because of smoke and fire appliances blocking the road is not ‘closing the road’ but simply letting people know the reality. That would be different if the road was passable but may be at risk of being threatened by fire or had reduced (but not zero) visibility due to smoke.

Shedding light on the matter?

I was asked ‘Are you able to shed any light on this matter?’ and the answer is ‘not really’.  The best I can infer is that I think it was probably a mistake. TfNSW were added to the list of ‘certain rail and transport authorities’ because of its role in the management and delivery of rail services, and I suspect no-one thought about its role as a roads authority and what that might mean in an emergency.

The Interpretation Act 1987 (NSW) s 35 says that a heading to a section is not considered part of the Act but may be used to help:

… determine the meaning of the provision–

(i) if the provision is ambiguous or obscure, or

(ii) if the ordinary meaning conveyed by the text of the provision (taking into account its context in the Act or statutory rule and the purpose or object underlying the Act or statutory rule and, in the case of a statutory rule, the purpose or object underlying the Act under which the rule was made) leads to a result that is manifestly absurd or is unreasonable.

If the heading to the section 27 said ‘Permission of certain rail authorities required’ that would go some way to suggesting that the interpretation is meant to apply to TfNSW only to the extent that it is a rail authority and not a roads authority.  But the heading in fact says (emphasis added) ‘Permission of certain rail and transport authorities required’. And TfNSW is a ‘transport authority’ established by the Transport Administration Act 1988 so one might say the section is not ‘ambiguous or obscure’.

It may however be that the section when read literally ‘leads to a result that is manifestly absurd or is unreasonable’ given that s 23 says that the RFS can ‘cause any street … to be closed to traffic’ but that is immediately contradicted by s 27 that rules out many roads and given that the history of the section has been about rail authorities.

How a court would interpret the section remains to be seen but of course it is unlikely to ever get to court. If the interplay of ss 23 and 27 of the Rural Fires Act ever became a problem, and if TfNSW began to assert that the RFS must not close a freeway or other road where TfNSW is a roads authority, even when the road and road users are threatened by fire, then I would expect the relevant ministers would get the relevant department heads to sort it out and come to an understanding, rather than ever let it get before a court.

Conclusion

When read literally, it does appear that the RFS cannot close a freeway or those roads where TfNSW is the nominated roads authority under the Roads Regulation 2018 (NSW) Sch 1 without first getting permission from TfNSW.  Arguably that also extends to roads where TfNSW is exercising the powers of a roads authority even if it is not a roads authority- and how anyone would know what roads they are is beyond me.

That does appear to be an absurd result and inconsistent with the history of s 27 but that is what it says today.

This blog is made possible with generous financial support from the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), Natural Hazards Research Australia, NSW Rural Fire Service Association and the NSW SES Volunteers Association. I am responsible for the content in this post including any errors or omissions. Any opinions expressed are mine, and do not necessarily reflect the opinion or understanding of the donors.

Categories: Researchers

500µg adrenaline auto-injectors – NSW

26 February, 2023 - 15:33

Today’s correspondent says:

ASCIA had updated its guidelines for the management of anaphylaxis a few years ago such that patients over 20kg should be administered a 500µg dose if using an autoinjector, and repeat after 5 minutes if no improvements. I note that Poisons and Therapeutic Goods Regulation 2008 Appendix C only authorised the possession and use of autoinjectors containing no more than 300µg.

Does it mean that a trained lay person or workplace (eg. school) can only carry and use the 150µg and/or the 300µg autoinjectors but not 500µg, for use to assist people showing signs/symptoms of anaphylaxis without having a valid prescription, even though relevant first aid training that was undertaken by the first aider may have been updated to suggest the use of 500µg in accordance with the ASCIA guidelines?

Considering only the 500µg autoinjectors (assuming the standing authorisation does not apply to the 500µg device), are the following considered to be a valid authority to use the drug by a trained lay person (ignoring the legalities of being in possession of the drug):

1. another identical autoinjector or its packaging with the typical label from the pharmacy displaying the patient’s name, drug name, dose, administration instructions, prescriber and date? What if the date on the label is quite old?

2. a red anaphylaxis action plan with the patient’s name and the doctor’s signature (which does not specify the dose)? Does it imply any appropriate dose per the guidelines can be used? Suppose the doctor prescribed a 300µg Anapen which the adult patient forgot to carry (the plan would just say Anapen with instructions for Anapen, and suppose the patient is not able to state the pen prescribed is 300µg), could a first aider use a 500µg pen? (Ignoring any protection for good Samaritans/volunteers/)

3. does a recently used 500µg autoinjector prescribed to the patient imply a 2nd dose can be administered from another device after 5 minutes and the patient is still showing signs and symptoms (in accordance with guidelines)?

What if the first aider has never undertaken any formal training on anaphylaxis management and was relying on the instructions on the personalised and signed red action plan? The generic yellow ASCIA first aid plan for anaphylaxis?

I assume ASCIA is the Australasian Society of Clinical Immunology and Allergy.

My first thought is to comment on the suggestion ‘relevant first aid training that was undertaken by the first aider may have been updated to suggest the use of 500µg in accordance with the ASCIA guidelines’.  I’ve done first aid training and apart from the fact that there is a child and an adult version, I could not have told you the dosage administered. I do wonder what difference it makes if there’s a 500µg injector – are there different side effects? Contra-indications? I think its optimistic (but happy to be corrected) to think that first aid training focussed on the dosage in an autoinjector. Because it’s an auto-injector there is little need to discuss or know the dosage that will be injected.

Putting that aside, I can return to the questions. The first question was about the Poisons and Therapeutic Goods Regulation 2008 Appendix C. Clause 13 says:

A person is authorised to possess and use adrenaline if–

(a) if the person requires the adrenaline for use in connection with the carrying out of anaphylaxis first aid, and

(b) the adrenaline is contained in single use automatic injectors that have been filled by the manufacturer and that deliver no more than 0.3 milligrams of adrenaline each, and

(c) the person holds a current first aid certificate issued after completion of a first aid course approved by the WorkCover Authority as referred to in regulations made under the Occupational Health and Safety Act 2000, and the person has received training on the symptoms and first aid management of anaphylaxis from–

(i) a first aid training organisation approved by the WorkCover Authority, or

(ii) any other organisation approved by the Secretary for the purposes of clause 18(5)(b)(ii) of this Regulation.

0.3 milligrams is the same as 300 micrograms or 300µg.

I have previously discussed issues with respect to sub-paragraph (c) and the fact that OHS Act is no longer in force and the WorkCover Authority no longer exists or approves first aid certificates  (see Use of methoxyflurane in first aid – Part 2 (March 16, 2019)) so I won’t revisit those issues.

The question was:

Does it mean that a trained lay person or workplace (eg. school) can only carry and use the 150µg and/or the 300µg autoinjectors but not 500µg, for use to assist people showing signs/symptoms of anaphylaxis without having a valid prescription, even though relevant first aid training that was undertaken by the first aider may have been updated to suggest the use of 500µg in accordance with the ASCIA guidelines?

Yes, that is what the Poisons and Therapeutic Goods Regulation 2008 (NSW) Appendix C cl 13 means. Subparagraph (b) refers to an autoinjector that will ‘deliver no more than 0.3 milligrams of adrenaline each’. That means a person with the relevant training can carry and use an EpiPen that delivers a 300µg, not a 500µg dose.  

With respect to the numbered questions, a first aider in NSW can go to a pharmacist and buy a 300µg autoinjector to carry in their first-aid kit and could administer that drug to anyone who needed it (Poisons and Therapeutic Goods Regulation 2008 (NSW) Appendix C cl 13).

With respect to question (1), if someone is having an anaphylactic reaction, anyone can administer any drug that is prescribed for them (Poisons and Therapeutic Goods Act 1966 (NSW) s 10(c1); Poisons and Therapeutic Goods Regulation 2008 (NSW) r 59(1)(a)). If the drug is in a box with their name etc on it then anyone can administer that; whether they are trained in first aid or not (see Helping with another person’s drugs (September 19, 2019)). If the label is ‘quite old’ then the issue would be whether the drugs were within date, not the age of the label.

With respect to question (2), if a person was having an anaphylactic reaction and someone could provide an adrenaline auto-injector I would not expect the first aider to identify the dosage; I think if they could identify it as an adrenaline auto-injector they would reasonably assume that they are entitled to use it. They would be justified in using it by the common law of necessity. They would also be protected by the ‘good Samaritan’ provisions in the Civil Liability Act 2002 (NSW). The contents of the anaphylaxis action plan would be legally irrelevant.

With respect to question 3 if a person has had a dosage administered but requires another dosage a first aider would be justified in using whatever auto-injector he or she could access. The law will not say ‘let the person die because you couldn’t find a 300µg autoinjector. The test is what is reasonably necessary and in the patient’s best interests. If the drug has been prescribed for the patient and the patient has two 500µg auto-injectors then of course the second one can be used for the reason given above. It is no offence to assist a person with the administration of any drug that has been prescribed for them.

Conclusion

In short if a first-aider who has received training that meets the requirements set out in cl 13, wants to go to a chemist to buy an auto-injector to put in their first aid kit, they can buy and carry a 300µg autoinjector. If a person was suffering from anapylaxis and in need of adrenaline, a trained first aider could use a 500µg autoinjector if that is what was accessible and certainly if had been prescribed for the patient.

This blog is made possible with generous financial support from the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), Natural Hazards Research Australia, NSW Rural Fire Service Association and the NSW SES Volunteers Association. I am responsible for the content in this post including any errors or omissions. Any opinions expressed are mine, and do not necessarily reflect the opinion or understanding of the donors.

Categories: Researchers

Can absence from work certificates be signed by paramedics?

24 February, 2023 - 06:00

Today’s correspondent is

… wondering if paramedics can complete a medical certificate that states fit or unfit for work? In his case it has a spot for a ‘physician’ practitioner’ to sign. I have attached a copy minus the company details. 

The Royal Australasian College of Physicians says

In Australia and New Zealand physicians … are medical doctors who have completed Advanced Training in a medical specialty with the RACP to diagnose and manage complex medical conditions.

Clearly not a paramedic.

An “attending practitioner” who refers to a medical examination by inference must be a medical practitioner ie a person registered with the Medical Board (Health Practitioner Regulation National Law s 113). 

We can say with some certainty that the author of this certificate wants a medical practitioner to sign it. It is a medical certificate so the short answer is a paramedic cannot sign that certificate. 

Generally

The Fair Work Act 2009 (Cth) s 12 defines a medical certificate as ‘a certificate signed by a medical practitioner’.  A paramedic cannot provide or sign a medical certificate.

An employer must not terminate a person’s employment if they are temporarily absent due to illness or injury and provide a medical certificate or statutory declaration (Fair Work Act 2009 (Cth) s 352 and Fair Work Regulations 2009 (Cth) r 3.01(2)).  Clearly a paramedic cannot provide a medical certificate.

The Regulation also provides that the person must not be dismissed if the terms of their employment provide other means to substantiate their illness and the employee complies with that requirement (r 3.01(3)). If a relevant ‘workplace instrument’ provides that certification by a paramedic is sufficient evidence to substantiate their claim to be sick or injured, then that would be sufficient.

The National Employment Standards provide for 10 days sick leave per year (Fair Work Ombudsman, Fair Work Information Statement, February 2023). To take paid leave the employee must ‘if required by the employer, give the employer evidence that would satisfy a reasonable person that … -the leave is taken for a reason specified in section 97’ (s 107(3)). One of the reasons listed in s 97 is that the employee is ‘not fit for work because of a personal illness, or personal injury, affecting the employee’ (s 97(a)). The exact form of evidence is not specified (Fair Work Ombudsman, Notice and Medical Certificates: Types of Evidence needed for sick/carer’s leave (accessed 23 February 2023).  As noted, the Act only requires ‘evidence that would satisfy a reasonable person’.

The Pharmacy Guild of Australia says

Under the Fair Work Act 2009, pharmacists have authority to issue Absence from Work Certificates to people covered by the Act as proof of legitimate absence from work.

See also Pharmaceutical Society of Australia and Pharmacy Guild of Australia, Absence from Work Certificates: Guidelines for Pharmacists (2018).  The reference to support this authority is given (at p. 5) as s 107(3) of the Act (quoted above). Neither s 107(3) nor the regulations refer to pharmacists. It appears that it is pharmacists themselves that have decided that it is within their scope of practice to issue certificates, rather than anything in the legislation (see also Industrial Relations Claims, Don’t rely on a sick note from your pharmacist, experts warn (April 19, 2018); Australian Employee Manual Who Can Issue a Medical Certificate for Sick Leave in Australia? (15 October 2018)).

Given the terms of s 107(3) a paramedic could issue an absence of work certificate and that would be sufficient if it ‘would satisfy a reasonable person that … -the leave is taken for a reason specified in section 97’. For example, if a paramedic transported a person to hospital they could issue a certificate to that effect so that a person could claim sick leave for their day of missed work.  It may be beyond a paramedic’s scope of practice to say how long the person will be unfit, but they could say they were not well the day they met and transported them. That evidence would probably satisfy a ‘reasonable person’ that the patient did not attend work that day as they were ‘not fit for work because of a personal illness, or personal injury, affecting the employee’.

As far as I’m aware no professional body (such as the Paramedicine Board or the Australasian College of Paramedicine (a sponsor of this blog)) has engaged with the idea or given guidance to paramedics in the way the Pharmacy Guild and the Pharmaceutical Society of Australia have given guidance to pharmacists.

Whether the employer would accept that would be a matter for the employer however If the employee thought it should satisfy the ‘a reasonable person’, but the employer did not, then it may be a matter that required resolution by the Fair Work Commission.

Conclusion

A paramedic cannot sign a medical certificate.

There is no law however that says who can sign a certificate as evidence that a person is not fit for work because of a personal illness, or personal injury, affecting the employee’ (s 97(a)) or for the other reasons listed in s 97.  The Act requires ‘evidence that would satisfy a reasonable person’.  Pharmacists seem to have taken it upon themselves to issue certificates and I’m not aware of any case law that either confirms or challenges that authority.  It follows that paramedics could issue those sorts of certificates provided they were reporting on their knowledge and observations.

Having said I would not advise paramedics to start writing certificates. As you can see from the Pharmacy guidelines there is much to consider but, given the scope of this blog (law but not legal advice) the law does not say who can or cannot issue such certificates. The law requires evidence that would satisfy a reasonable person. In some circumstances that I can imagine that could be evidence from a paramedic but if paramedics want to get into that business, they would be advised to have professional development and guidance along the lines of that adopted by the pharmaceutical profession.

This blog is made possible with generous financial support from the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), Natural Hazards Research Australia, NSW Rural Fire Service Association and the NSW SES Volunteers Association. I am responsible for the content in this post including any errors or omissions. Any opinions expressed are mine, and do not necessarily reflect the opinion or understanding of the donors.

Categories: Researchers

Application for flexible work arrangements – Ambulance Victoria

23 February, 2023 - 06:00

Ms Fyfe is a paramedic employed by Ambulance Victoria. She applied for flexible working arrangements so that she manage the care of her three children. Her application was refused, and the matter proceeded to the Fair Work Commission. In Fyfe v Ambulance Victoria [2023] FWC 49 (06 January 2023) (Commissioner Johns) the Fair Work Commission ruled that Ambulance Victoria did not have reasonable grounds to refuse the application.

The Ambulance Victoria Enterprise Agreement 2020 cl 23 provides employees the right to apply for flexible work arrangements in specified circumstances including ‘the employee: (a) is the parent, or has responsibility for the care of a child who is school age or younger …’. Clause 23(4) says ‘The Employer may only refuse the request on reasonable business grounds.’

The issue involved an application to vary Ms Fyfe’s night shift arrangements.  Commissioner Johns explained (at [5]-[9]):

… the normal night shift commences at 6:00 pm and concludes at 8:00 am…

Ms Fyfe proposed that she commence night shift at 9.00 pm (rather than 6.00 pm) and finish night shift at 6.00 am (rather than 8.00 am).  The change in start and finish time would allow Ms Fyfe enough time to travel to her branch in the evening, and to travel home in the morning.  The amended hours would also allow for incidental overtime at the end of her shift.

If agreed to, Ms Fyfe would still be able to undertake 64% of the night shift.

It is this proposed change in night shift arrangements that AV rejected.

In support of her application, Ms Fyfe gave evidence ([26]-[28]):

… there are ongoing issues with resourcing night shift in the AV service generally, and in the Hume region. There are frequently shifts that are dropped because paramedics have called in sick and cannot be replaced. Alternatively, some shifts may be staffed but not with the capability of a dual ALS paramedic crew. They may be staffed by a single paramedic responder (who cannot transport patients) or by a dual Ambulance Community Officer crew (who cannot deliver the same level of medical care).

Indeed, it is Ms Fyfe’s evidence that there was a shift that was going unfilled or being filled by an officer working overtime on almost every night at one of the eleven branches that she was able to work at as part of her FWA.

Ms Fyfe would not be rostered to work as part of a crew on the regular Kilmore roster. She would fill vacancies that are otherwise going unfilled or are currently filled by paramedics working overtime. In contrast, Ms Fyfe would be paid at normal time as these would be her ordinary hours of work.

Turning to the factors set out in section 65(5A) [of the Fair Work Act 2009 (Cth)]:

a.   The arrangement would not have a significant cost for AV. The wages paid to Ms Fyfe for performing this work would be offset by AV not paying overtime to another officer to fill these vacancies.

b.   There would not be a need to change the working arrangements of other employees. Ms Fyfe would allow other employees to work as part of a two paramedic crew as intended.

c.   There would not be a loss of efficiency or productivity, or a negative impact on customer service. On the contrary, having Ms Fyfe as a resource to fill these unplanned vacancies would ensure that fewer shifts were dropped altogether.

In his assessment of the evidence Commissioner Johns said (at [100]):

In any case the following can be said about the reasons now advanced by AV:

a)   Unfunded shifts.

Properly understood, Ms Fyfe’s request for a FWA will not result in unfunded shifts.  This is because, if she was an employee on an FWA, she could be treated as a flexible spare.  She could be allocated to any number of branches as a last resort, if AV was unable to fill the 14-hour shift with two officers.

b)   Community need.

Properly understood, Ms Fyfe’s request for a FWA will actually assist to meet the community expectations.  There was credible evidence that a number of shifts, at various locations, go completely unfilled. There are many “dropped shifts.” Therefore, as the last resort option, the Applicant would be filling a position that would otherwise be vacant.  By using her as a last resort, AV would at least have an officer filling 9-hours of a 14-hour shift.  From the perspective of community expectations, the Applicant’s availability would be “better than nothing.”

In answer to a question from me Ms Capp [Regional Director of the Hume Region] accepted that “it would be better for the community to have what, would otherwise be a dropped shift of 14 hours, filled for 9.” Ms Capp also accepted that it was better than nothing to have an officer partner with another officer for 9 hours (when they could respond as a duo), rather than have the lone officer be single for the entire 14 hours.

The other aspect of community/organisational benefit is that Ms Fyfe is a qualified clinical instructor.  She gave evidence about how allowing her to work even 9 hours with a graduate would benefit a graduate (in circumstances where the 14-hour shift would otherwise go unfilled). The graduate would be ‘out of service’ for a lesser period of time.

The Applicant gave further evidence about the operation of single responders and how it too would be “better than nothing”.  This evidence aligned with that of Ms Capp who accepted under cross-examination that, because there are fewer night shifts than day shifts, there would generally be an ambulance not in service and otherwise available at branches in Hume 1.

c)   Impact on operations of Hume Region (of bespoke rostering).

This is not a reasonable business ground.

It was held in both Brimbank and Emery that the fact that other employees might request flexible work arrangements if a FWA is granted to one employee is not a reasonable business ground for rejecting an FWA….

AV argued that it could not accept Ms Fyfe’s proposal because it was ‘not able to provide shift start and finish times outside the Employee’s Team roster configuration” ([29]). The Commissioner was critical of AV’s approach to the request noting a failure to meet with the applicant to discuss her needs and the proposal she had submitted and to try to reach agreement.  At [81] the Commissioner said:

The reason advanced by AV (that “Hume 1 is currently not able to provide shift start and finish times outside the Employee’s Team roster configuration”) has all the hallmarks of Carol Beer’s drolly-delivered catchphrase in the sketch comedy TV programme Little Britain: “Computer says ‘No’”.

And at [88]:

In the present matter AV “must point to costs or adverse impact over and above the inevitable small adverse impacts associated with any material request that is sufficient to outweigh the employee’s personal considerations in the legitimate pursuit of a better work life balance.” It did not do so on 9 March 2022.  All it wrote was,

“Hume 1 is currently not able to provide shift start and finish times outside the Employee’s Team roster configuration.

…, we are currently not in a position to offer this level of roster variation.”

What was left unanswered on 9 March 2022 was “why not?”

Finally at [102]:

It is obvious that more could have been done to reach a mutually satisfactory outcome but was not.  Consequently, that renders AV’s decision unreasonable.

Commissioner Johns concluded (at [105]) ‘… at the time it refused Ms Fyfe’s request for a flexible work arrangement Ambulance Victoria did not have reasonable business grounds for its refusal and I determine the dispute on that basis.’  This was not an order requiring AV to accept Ms Fyfe’s application for flexible work arrangements, rather it was an order that the grounds put forward by AV for refusing the application had not been established. Given, however, that these are the only permitted grounds for refusing an application AV will, presumably, now accept the application.

Discussion

This case is an example of the need for preparation and reasoning. Ms Fyfe knew what she was proposing and the circumstances that applied to AV.  AV, on the other hand, appears not to have fully engaged with the proposal or made a genuine effort to understand Ms Fyfe’s needs and to try to reach agreement.  It is also an example of the need for all parties to understand the relevant Enterprise Agreement that governs the employee/employer relationship. Finally, it demonstrates the value of an independent umpire.  A part of the concept of the rule of law is that a person (which includes an agency like AV) cannot be a judge in its own cause.  By the time a case gets to a court or commission the parties have invested in and seek to defend their position.  This is a natural human reaction, but it can lead to ongoing, unhelpful circular debates. By having an umpire with no ‘skin in the game’ he or she can look at the rules (in this case the enterprise agreement), the evidence and the arguments and provide guidance to resolve the issue and give guidance to help avoid future disputes.

And with that I’m up to date

In my post Fire Rescue Victoria successfully opposes clothing company’s trade mark (February 8, 2023) I said “Due to a glitch in the software that delivered latest cases to my desk, I have missed out on reporting some relevant, recent cases.  I will attend to that over the next few weeks to clear that backlog’” This is the last of the cases that I had identified.  I have also answered all the questions that I’m aware of, so there’s nothing in my ‘pending’ list. Time for some time off, and if you have got a burning issue or know of any cases I’ve missed, time to send them through.

This blog is made possible with generous financial support from the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), Natural Hazards Research Australia, NSW Rural Fire Service Association and the NSW SES Volunteers Association. I am responsible for the content in this post including any errors or omissions. Any opinions expressed are mine, and do not necessarily reflect the opinion or understanding of the donors.

Categories: Researchers

Victorian ‘Duty of Candour’

22 February, 2023 - 06:00

Today’s correspondent

… was wondering if you could do a post on how the Victorian duty of candour (that has recently commenced) will work in the ambulance context.  I know that the often these processes can be very hospital based.

Safer Care Victoria says:

The Health Legislation Amendment (Quality and Safety) Act 2022 introduces new reforms and amends the Health Services Act 1988, the Ambulance Services Act 1986, the Mental Health Act 2014, the Public Health and Wellbeing Act 2008, and the Health Complaints Act 2016. The following provisions will come into effect on 30 November 2022.

In the context of this blog, and the question, I’ll refer to the Ambulance Services Act 1986 (Vic).  Section 22I of that Act says:

(1) If a patient suffers a serious adverse patient safety event in the course of receiving services from an ambulance service, the ambulance service responsible for providing those services owes a duty of candour to the patient and must do the following unless the patient has opted out in accordance with subsection (2)—

(a) provide the patient with—

(i) a written account of the facts regarding the serious adverse patient safety event; and

(ii) an apology for the harm suffered by the patient; and

(iii) a description of the ambulance service’s response to the event; and

(iv) the steps that the ambulance service has taken to prevent re-occurrence of the event; and

(v) any prescribed information; and

(b)   comply with any steps set out in the Victorian Duty of Candour Guidelines.

(2)        A patient referred to in subsection (1) may choose not to receive information in accordance with subsection (1) by providing the ambulance service with a signed statement.

(3)        A patient who has signed a statement in accordance with subsection (2) may later elect to receive information under subsection (1).

A ‘serious adverse patient safety event’ means (Ambulance Services Act 1986 (Vic) s 3; Health Services Act 1988 (Vic) s 3 and Health Services (Quality and Safety) Regulations 2020 (Vic) r 3B) an event that:

(a) occurred while the patient was receiving health services from a health service entity; and

(b) in the reasonable opinion of a registered health practitioner, has resulted in, or is likely to result in, unintended or unexpected harm being suffered by the patient.

More details of the duty of candour and the provisions relating to serious adverse patient safety event reviews can be found here:

Discussion

It’s hard to be specific given the scheme is new but one can infer that the duty of candour will work in the ambulance context as it will in all other health care contexts. Where the ambulance service identifies that an event ‘has resulted in, or is likely to result in, unintended or unexpected harm being suffered by the patient’ they must disclose that to the patient along with the other information listed in s 22I(1).  Any adverse outcome is not necessarily an ‘event’, medical care does not always lead to the best outcome. A ‘serious adverse patient safety event’ is where something goes wrong in the patient’s care eg a paramedic makes a clinical error or a piece of equipment malfunctions.  These events may never be known by a patient or their family, but this new duty compels the relevant service to explain what happened and what they will do about that. It builds on the concept of ‘open disclosure’ (see for example see NSW Health, Open Disclosure Policy (3 September 2014)).

Such a disclosure is not an admission of liability, but it may reveal information that leads to that conclusion. To that end the Ambulance Services Act provides that an apology is not an admission of liability (s 22J), and the outcome of a serious adverse patient safety event review cannot be used in court (Health Services Act 1988 (Vic) s 128U).  A severe adverse patient event may not be caused by negligence that is the actions may have been reasonable in the circumstances, but still have led to an adverse outcome. But that does not deny that telling a patient that there was an adverse event may reveal that indeed there was negligence, but so what?  A government agency like Ambulance Victoria is to act as a model litigant and if there has been a negligent failure that causes harm to the patient, they would not seek to hide that truth nor oppose a finding of liability.  And the idea behind a duty of candour and open disclosure is that by being honest and upfront there may be less damage, less liability (if patients feel that health services have been honest and treated them with respect and there are steps to avoid future outcomes they may be less likely to sue) and therefore better outcomes for everyone.

This blog is made possible with generous financial support from the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), Natural Hazards Research Australia, NSW Rural Fire Service Association and the NSW SES Volunteers Association. I am responsible for the content in this post including any errors or omissions. Any opinions expressed are mine, and do not necessarily reflect the opinion or understanding of the donors.

Categories: Researchers

Criminal convictions and registration

21 February, 2023 - 06:00

Today’s correspondent asks whether:

… a Health Care Professional convicted of the criminal offense of sexual assault on a minor, resulting in a period of house arrest and community service – could ever work in the industry again, given the criminal conviction?

A search on the AHPRA website no longer returns any results for said individual. So the assumption is that their registration has been cancelled?

Why do some criminal convictions appear under the Tribunal Findings of the AHPRA website, but not others?

Would the criminal conviction not be a permanent barrier to gain registration in the future?

Given the audience of this blog, I’ll refer to the Paramedicine Board to answer this question.  For paramedics (and I’m sure the answer will be the same for nurses and medical practitioners) the answer is found in the Criminal History Registration Standard (17 May 2018).  A paramedic, when seeking registration must disclose their criminal history and the Registration Standard explains how the Board will assess that history when deciding whether the applicant is a suitable person for registration.  The Standard says:

In deciding whether a health practitioner’s criminal history is relevant to the practice of their profession, the Board will consider the following factors.

1. The nature and gravity of the offence or alleged offence and its relevance to health practice.

The more serious the offence or alleged offence and the greater its relevance to health practice, the more weight that the Board will assign to the offence.

2. The period of time since the health practitioner committed, or allegedly committed, the offence.

The Board will generally place greater weight on more recent offences.

3. Whether a finding of guilt or a conviction was recorded for the offence or a charge for the offence is still pending.

In considering the relevance of the criminal history information, the Board is to have regard to the type of criminal history information provided. The following types of criminal history information are to be considered, in descending order of relevance:

a. convictions

b. findings of guilt

c. pending charges, and

d. non-conviction charges; that is, charges that have been resolved otherwise than by a conviction or finding of guilt, taking into account the availability and source of contextual information which may explain why a nonconviction charge did not result in a conviction or finding of guilt.

4. The sentence imposed for the offence.

The weight the Board will place on the sentence will generally increase as the significance of the sentence increases, including any custodial period imposed. The Board will also consider any mitigating factors raised in sentencing, where available, including rehabilitation.

5. The ages of the health practitioner and of any victim at the time the health practitioner committed, or allegedly committed, the offence.

The Board may place less weight on offences committed when the applicant is younger, and particularly under 18 years of age. The Board may place more weight on offences involving victims under 18 years of age or other vulnerable persons.

6. Whether or not the conduct that constituted the offence or to which the charge relates has been decriminalised since the health practitioner committed, or allegedly committed, the offence.

The Board will generally place less or no weight on offences that have been decriminalised since the health practitioner committed, or allegedly committed, the offence.

7. The health practitioner’s behaviour since he or she committed, or allegedly committed, the offence.

Indications that the offence was an aberration and evidence of good conduct or rehabilitation since the commission, or alleged commission of the offence, will tend to be a mitigating factor. However, indications that the offence is part of a pattern of behaviour will tend to have the opposite effect.

8. The likelihood of future threat to a patient of the health practitioner.

The Board is likely to place significant weight on the likelihood of future threat to a patient or client of the health practitioner.

9. Any information given by the health practitioner.

Any information provided by the health practitioner such as an explanation or mitigating factors will be reviewed by the Board and taken into account in considering the health practitioner’s criminal history.

10. Any other matter that the Board considers relevant.

The Board may take into account any other matter that it considers relevant to the application or notification. The Board will not require an applicant or registered health practitioner to provide further information that may prejudice their personal situation pending charges and the Board must not draw any adverse inference as a result of the fact that information has not been provided.

Note: the above factors have been numbered for ease of reference only. The numbering does not indicate a priority order of application.

Discussion

There is not list of unforgivable offences, rather the factors listed must be considered. In the context of the facts given in the question the Board would need to know how long ago the offence occurred, was the defendant then a registered health professional or were they 17 and the victim not yet but nearly 16, how old was the victim, did the offending occur in the context of health practice (eg was the victim a patient).  If the offending occurred where the offender was a health practitioner (and so well and truly an adult) who took advantage of a young person that was in his or her care and the offender is still under sentence, then I think we could be confident that they are not about to get their registration back.  And given that a critical issue is how long ago the offending occurred, if they do want to get registered again the relevant test will be the law as at the date of their application, and that could be very different from the law in force today.

In short, we cannot say they could never regain their registration, although we might expect that it is unlikely.  At the end of the day (assuming the law remains as it is today) it would be up to the registration authorities to make a decision based on the factors listed in the Registration Standard or equivalent at the time of registration.

Why do some criminal convictions appear under the Tribunal Findings of the AHPRA website, but not others?

I cannot say definitively why some criminal convictions appear under the Tribunal Findings of the AHPRA website, but others do not, but having had a look at the Court and Tribunal decisions page I would infer

  1. Decisions from NSW are excluded as NSW is a co-regulatory jurisdiction ie NSW procedures are not managed by AHPRA or even the relevant Boards;
  2. Decisions that are reported are where AHPRA or the relevant Board is a party to proceedings.

For example in Pharmacy Board of Australia v  VGV ‘a tribunal has cited public protection when cancelling the registration of a pharmacist who was found guilty of criminal offences’.  That is reported but, in another case, perhaps the one my correspondent has in mind, if the practitioner surrendered their registration or consented to orders cancelling their registration there would be no Tribunal decision to report.

In Ahpra v Name not disclosed we’re told ‘A Queensland Magistrates’ Court has fined a former paramedic for practising on a remote mine site while suspended.’ That is a criminal conviction where AHPRA was the prosecutor. In a case such as the one my correspondent has raised, it would be the DPP (or the Crown) that was the prosecutor so this would not appear on the AHPRA database.

AHPRA does say ‘We also publish a link to tribunal or court decisions on each practitioner’s record on the Public register which involve adverse findings and which were delivered after the start of the National Registration and Accreditation Scheme’ but if the person’s name does not appear on the register as they are no longer registered, then that will not appear.

My correspondent says ‘A search on the AHPRA website no longer returns any results for said individual. So the assumption is that their registration has been cancelled?’  I note that AHPRA publishes details of ‘cancelled, disqualified and/or prohibited health practitioners’.  The particular practitioner may have surrendered their registration rather than had it cancelled or been disqualified, or given I don’t know how long ago the offending occurred, it may be that AHPRA don’t know about it or haven’t yet dealt with it.

This blog is made possible with generous financial support from the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), Natural Hazards Research Australia, NSW Rural Fire Service Association and the NSW SES Volunteers Association. I am responsible for the content in this post including any errors or omissions. Any opinions expressed are mine, and do not necessarily reflect the opinion or understanding of the donors.

Categories: Researchers

RFS complaint ends up in court

20 February, 2023 - 06:00

The judgment in Jay & Anor v Petrikas & Ors (No.4) [2022] NSWDC 628 (13 December 2022) runs for 705 paragraphs and details many ongoing disputes within the Rural Fire Service in the Hawkesbury area of NSW.  I will not repeat the facts in detail.

In short plaintiffs were a Brigade Captain and Deputy Captain. They had a long history of strongly advocating for their brigade in Group meetings and with the RFS command. Eventually three Group Captains lodged formal complaints about the plaintiffs’ behaviour alleging bullying and other conduct and alleging that this conduct amounted to a breach of relevant service standards.

The matter was dealt with as a disciplinary issue. His Honour Abadee DCJ described the process at [47]:

In summary, essentially, a member may make a written allegation of breach of discipline. The recipient decides who is to investigate it. Eventually the appointing officer appoints the investigator. It is investigated and the investigator must determine whether there is a case to answer or whether there is no case to answer. It is then a matter for the appointing officer to determine whether to refer the matter to a disciplinary panel or determine that the matter should proceed no further. The structure is such that for complaints of breach of discipline, an investigation must proceed before any hearing by a disciplinary panel.

In this case an investigator was appointed. The investigator (at [232]) ‘found insufficient evidence to support to the requisite level (the balance of probabilities) that either plaintiff breached Service Standards 1.1.42 and 1.1.7, and the allegations as particularised.’ The investigator recommended no further action and that was the decision of the RFS that was then communicated to all the parties.

That, one might think, would have been the end of it. The plaintiffs were however aggrieved that they had been subject to the complaints and the process and sued the three group captains that had made the initial complaint and the Superintendent of the Hawkesbury District.  The plaintiffs alleged that these four defendants had committed the tort of injurious falsehood. The parties agreed that what the plaintiffs needed to prove was set out in a decision of the High Court of Australia in Palmer Bruyn & Parker Pty Ltd v Parsons (2001) 208 CLR 388 where Gummow J said (quoted at [10]):

… generally, it is said that an action for injurious falsehood has four elements (1) a false statement of or concerning the plaintiff’s goods or business; (2) publication of that statement by the defendant to a third person; (3) malice on the part of the defendant; and (4) proof by the plaintiff of actual damage (which may include a general loss of business) suffered as a result of the statement.

Abadee DCJ then had to consider whether those four elements had been established.

(1)  a false statement of or concerning the plaintiff’s goods or business

The plaintiffs alleged that there were many false statements in the allegations against them.  The court rejected most but not all of those claims finding (at [458]) that there were four ‘false’ representations but in the context of the number alleged this was (at [703]) ‘a very limited number of false representations found in the publications’.

The fact that there were some ‘false’ representations – some of which were opinions that were unfounded rather than statements of fact – was not enough. They had to be ‘concerning the plaintiff’s good or business’. The complaints all related to the plaintiffs conduct in the RFS rather than in their employment or business.  At [268] Abadee J said:

In my respectful opinion, whilst the tort of injurious falsehood extends protection beyond a person’s proprietary interests, to protecting the person’s trading or professional interests, the protection does not extend to mere statements about a person more generally or, to put the matter another way, any statements interfering with a person’s ‘non-commercial advantage’…

And at 282-291

On the view that I favour, the statements were not directed to the plaintiffs’ economic interests (in the broadest sense of that expression). Without diminishing the admirable nature of their service as longstanding members of the RFS and the obvious pride the plaintiffs place in their offices within the RFS, the statements in the publications did not concern the economic interests of the plaintiffs. The plaintiffs did not plead, nor seek to prove that even the prospective loss of rank, or even prospective removal from a volunteer organisation (neither of which occurred) as well respected as the RFSNSW, impaired any proprietary, business, commercial, professional (including occupation or employment) or trading interest that the plaintiffs had. Simply put, their offices within the RFS had no real economic value.

Through their unpaid or voluntary service to the RFS, they were not carrying on a ‘business’. They did not profit from service in the conventional sense. Nor did they enter into any contract of employment with the RFS or derive recompense for their service.

I do not consider that unpaid activities within a (predominantly) voluntary organisation, even in an organisation like the NSWRFS which performs such vital (and dangerous) work for the benefit of the community, amounts to an ‘occupation’. The relevant connotation of ‘occupation’ in this regard is economic; not recreational. The plaintiffs themselves identified other paid work as their form of “occupation”.

It is also a major stretch to characterise, as the plaintiffs’ Counsel sought to do, that through the ranks or offices they held within the Glossodia Brigade, they were engaged in a ‘profession’…

Whilst I accept that both plaintiffs were passionate and dedicated to the RFS, it was not a ‘vocation’ or ‘calling’ for them. I strongly doubt whether reasonable persons in the community would regard volunteer fire fighters as belonging to a ‘profession’. Most persons engaged in a profession do not do so only on a part-time basis…

The representations were contained in internal documents for the RFS. The confinement of their circulation within the RFS would cause no harm to their economic interests; no matter how much their reputation and standing within the RFS was, or was likely to be, damaged by the publication. To the extent that their complaint, in substance, was one of damage to reputation, and injured feelings associated with their loss of ‘status’ or ‘standing’ within this predominantly volunteer organisation, this was the province of the law of defamation.

The holding of office may in certain circumstances satisfy an economic interest, but that depends on the circumstances. In the circumstances of these plaintiffs, statements potentially imperilling retention of their offices did not impair their economic interests. Their holding of a membership in a predominantly voluntary association is even less connected to an economic interest. The position in these respects might differ, on the facts, if a loss of office, or membership, gave rise to a risk of reputational loss (which might conceivably, have potentially prejudiced their real occupations)*, but, as indicated, no such case was argued; which reflected the limited class of publishees and, arguably, an expectation of confidentiality upon them. As will be remarked upon later, for a significant period, the RFS tried to withhold production of Mr Plumridge’s investigation report.

For these reasons, the first element of the tort of injurious falsehood – what Gummow J described as (false) statements ‘of and concerning the plaintiff’s goods or business’ – is not established. That being so, the plaintiffs’ claims must fail.

(* With respect to his Honour’s comments that ‘The position in these respects might differ, on the facts, if a loss of office, or membership, gave rise to a risk of reputational loss (which might conceivably, have potentially prejudiced their real occupations)…’ see the decision in Castle v Director General State Emergency Service [2008] NSWCA 231 where Mr Castle was found to have a remedy for denial of natural justice where the decision to remove him as unit controller impacted upon his economic interests given his position as an elected councillor who had been nominated for the position by the council).

(2)  publication of that statement by the defendant to a third person;

There was no issue with publication (see [3]). The three group captains wrote to the superintendent who in turn wrote file notes and other documents to more senior officers and the investigator.

(3)  malice on the part of the defendant;

His Honour rejected the claims of malice. Malice is the state of mind of the author. Counsel for the plaintiffs submitted (at 463] a publication is motivated by malice if the author makes the publication ‘knowing it to be false or with reckless indifference as to whether it is true or false’.  At [552] His Honour said:

In sending these letters, I find that:

  • the complainants (who reported to the first, second and third Defendants, all Group Officers) were purporting to exercise their right to state their concerns to their supervisor, under SOP 1.1.42-1(a) [73] ;
  • the first, second and third defendants were purportedly acting in accordance with their rights to make allegations about breaches of discipline under Service Standard 1.1.2 paragraph 3.4 [74] ;
  • by sending the two separate Briefing Notes on 5 September 2016, Ms Hodges was exercising her right under cl 2.1(c) of SOP SS1.1.2-2 to refer the allegations to a more senior officer (in both cases Regional Officer Watson) [75] . (It may be inferred that it was Mr Watson who then passed on the allegation to the Director of Regional Services).

And at [562]:

In a context where members and officers have the right to receive and make complaints, where such complaints are to be subjected to the exercise of discretion as to which complaints are to be investigated and what particular matters are to be the subject of investigation, with opportunities in the form of procedures (at the investigative level, or if the matter that proceeds that far, in a disciplinary hearing) for respondents to be exonerated, in my opinion a Court would be slow to infer that the fact of making complaints ‘up the chain’, as it were, is malicious even if the content of complaints may ultimately be determined to involve a misrepresentation, substantial or trivial, of some kind or another. For a Court to infer malice too readily might have a chilling effect upon the operation of discipline within the RFS if complainants face the threat of a lawsuit because they happen to misstate a provision in a service standard contravened, state an inaccuracy or express a half-truth or opinion on identified premises one or more of which may be wrong. I also note that these rights exist just as much for those who are the subject of disciplinary complaint. It seems to me that if say, a member of the RFS makes a trivial, frivolous or vexatious complaint against another member, which is dismissed by the investigator, the course would be theoretically open to the person the subject of the complaint to make complaint against the original complainant; say for conduct contrary to the values in the Code of Conduct.

And at [580] ‘I am not persuaded that, for the high standard of proof required, in all the circumstances, it was malice which actuated the decisions of the defendants to make any of the publications.’

Being wrong is not the same as being malicious.

(4) proof by the plaintiff of actual damage

The alleged damage was the costs incurred by the plaintiffs to engage lawyers to represent them during the investigation of the complaints against them.  Remember as noted above the process involves complaints being made and investigated. If the investigation reveals sufficient evidence, then there may be formal disciplinary proceedings. This matter went no further than the investigation (see [606]).

Having found that a very small number of the allegations raised were false, His Honour found that even if the cost of legal representation was a relevant ‘damage’ it was not caused by the false allegations; those allegations were ‘immaterial’ ([597)] to the decision to commission an investigation. At [640] His Honour found had the false allegations been made maliciously then the incurring of legal fees at the investigation stage was not the ‘natural and probable’ consequence of the publication of the false claims.

His Honour considered other aspects of damages as he had too in case there is an appeal and an Appeal Court finds that he erred in his conclusions as to malice but we need not go into those details here.

Outcome

The outcome was that having been cleared by the internal examination, the plaintiffs took the matter to the Supreme Court where they converted their ‘victory’ into a ‘loss’.  What was an internal RFS issue has now been heard in open court, the court’s reasons published on accessible data bases and reported in blogs such as this one.  If the plaintiffs were concerned about the impact of the proceedings on their standing in the RFS and the community the reach is now much further than the ‘limited class of publishees’ [290] that is, the small number of people who received the initial complaints.  

There is also the issue of costs. The plaintiffs have been allowed more time to make submissions as to any order as to costs ([702]) but the normal rule is that the loser must pay the winners costs.,

Lessons identified.

The legal lesson to be identified from this decision is the nature of the tort of injurious falsehood and its limited application where a person alleges that another has made false and malicious claims. The remedy only applies where there has been an impact upon the plaintiff’s economic interests and that does not include their role as a volunteer.  A person who thinks their standing as a volunteer has been damaged by others making false allegations would be advised to consider an action in defamation but that would have its own problems that we cannot consider here.

There are other lessons too:

  • Just because someone is wrong, it does not mean they are malicious;
  • If there are systems in place to make complaints and to investigate concerns, raising those concerns, even if the particular concerns are not substantiated, does not prove malice. If it were open to find malice it would limit the ability of organisations to hear of concerns and investigate them. It is the investigation that is to try and determine the ‘truth’ the complaint is someone’s concern and beliefs even if, ultimately the grounds for those beliefs may not be made out.
  • Don’t rush to court.
POSTSCRIPT

The issue of costs was determined on 30 January 2023 and I thank ‘Avid Reader’ for drawing this to my attention.

In Jay & Anor v Petrikas & Ors (No.5) [2023] NSWDC 7 His Honour Judge Adabee ordered (at [36]):

the plaintiffs are to pay the defendants’ costs of the proceeding:

(a) up to and including 26 November 2020, on the ordinary basis; and

(b) from 27 November 2020, on an indemnity basis.

Where costs are ordered on an ‘ordinary basis’ they cover something like 2/3 of the winning parties actual costs.  Costs on an indemnity basis means the plaintiffs have to cover 100% of the winning party’s costs.

The reason for the two different orders is that the plaintiff’s refused an offer from the defendant and, if they had accepted that offer, they would have been better off than the result at trial.  The previous offers had been an offer by the plaintiffs to settle with no order as to costs and further, that earlier costs orders in favour of the defendants would be vacated (or waived).  To put that another way, it was an offer to settle where each party would pay their own costs. Had they accepted that offer they would have saved everyone the costs incurred from that date and would have been better off than they were at the conclusion of the trial.

It is worth noting that although the defendants were four named individuals (3 volunteer group captains and one employee) they were all represented by the Crown solicitors office and their costs were covered by the Rural Fire Service.  The ‘RFS funded representation to the recipients of the demands to ‘protect the integrity of its grievance and disciplinary procedures’ (Jay & Anor v Petrikas & Ors (No.4) [2022] NSWDC 628 [248]). One hopes that the defendants were not out of pocket at all.

It was a total loss for the plaintiffs who will be liable for the defendants costs estimated to be in excess of $90,000 on an ‘ordinary basis’ ([9]) so significantly more on an indemnity basis, plus their own legal costs.

Further comment

I am reminded of the case Chapman v Victoria State Emergency Service Authority (Review and Regulation) [2020] VCAT 722 discussed in the post Dysfunction within Victoria SES (July 2, 2020). In that post I said:

This is a sad and sordid tale for an organisation that depends on volunteers.  I have not repeated the details of the complaints against the Chapmans but they are set out in the Supreme Court judgement at [166]-[168]. If even some were true it must have made attendance at that SES unit very unpleasant.

I said at the start that ‘the matter may have been finally resolved’ but actually one would have no reason to believe that. Given the history of this matter and the ‘depth of ill-will, distrust and disrespect that had developed’ [Chapman v Chief Officer of the Victoria State Emergency Service [2017] VSC 547, [253]) it is hard to see how this, or any decision will go toward rebuilding the unit.

What I don’t understand is why the Chapmans, or the 50 or so other members in the ‘other group’ would choose to remain either in the SES or in a unit that is so dysfunctional.  Why is membership of the SES so important you would spend years and thousands of dollars fighting to stay when others clearly don’t want you; and why if people are behaving as the Chapmans’ were alleged to have done (acknowledging of course that the allegations have not been proved) would anyone else want to stay? Given the story, as told through judicial decisions, it is beyond me how the members of this unit find the will to turn up for training or to turn out to an emergency.

This decision raises similar concerns. His Honour, although finding there were some allegations made against the plaintiff that were false (but not motivated by malice) these were a very small number of the allegations made. And I do not repeat what his honour said about the behaviour and credit of the plaintiffs (but His Honour’s comments are available in the judgment at [328]-[332]) suffice to say that for both the plaintiffs and the defendants and the other members of the brigade it must have been, and I imagine continues to be, a struggle to continue to volunteer in what sounds like such an unpleasant environment. 

The original complainants thought the plaintiffs were in breach of the RFS Code of Conduct, lodged a complaint that was investigated, and they were told ‘no, in this case, no breach occurred’. For the plaintiffs that was not sufficient vindication, and they took that matter to court, incurring costs in excess of $100 000 to lose on every point. As lawyers know, any client who wants to go to court ‘for the principle’ is looking to throw their money away.

This blog is made possible with generous financial support from the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), Natural Hazards Research Australia, NSW Rural Fire Service Association and the NSW SES Volunteers Association. I am responsible for the content in this post including any errors or omissions. Any opinions expressed are mine, and do not necessarily reflect the opinion or understanding of the donors.

Categories: Researchers

Fees for false fire alarms – Victoria

19 February, 2023 - 06:00

Today’s question is about charges for attendances by Fire Rescue Victoria to false fire alarms.  My correspondent says:

Currently FRV charges for false alarm attendances under the FRV Act 1958 Sect 32D.

Currently FRV determine “reasonable excuses”, largely based on the case law of MFBV v St Catherines and MFBB v Mercy Private Hospital.

The levies imposed act as an incentive to reduce false alarms – but are also an exercise in cost recovery. The average cost of a false alarm attendance is $2800, and approximately 1/3 attendances are charged for.

Internally at FRV, there has been discussion of moving to a “flat fee” charging model that does not consider reasonable excuses. i.e $900 per attendance for any attendance.

  • Do you think this model would be possible? and;
  • what legislative change would be required?

The link to the cases, provided by my correspondent, goes to a information article written by Elisa McCutcheon from law firm Minter, Ellison, Morris, Fletcher.  The cases themselves are Metropolitan Fire Brigades Board v Mercy Private Hospital [1993] VicRp 24 and Metropolitan Fire Brigades Board v St Catherine’s School [1993] VicRp 25.  The fires in these cases occurred in September 1990.  At that time s 32D of the then Metropolitan Fire Brigades Act 1958 (Vic) said:

(1)        If

(a)        a brigade in the metropolitan district responds to a false alarm of fire given by an automatic fire alarm system; and

(b)       the Board, after considering a report by an officer of the Board relating to the false alarm, determines that the owner or occupier of the property did not have a reasonable excuse for the alarm being given the Board may by notice in writing given to the owner or occupier of the property require the owner or occupier to pay to the Board the fees and charges prescribed for the attendance of the brigade in response to the false alarm.

(2) Any person who is aggrieved by the decision of the Board may within 30 days of receiving the notice appeal to the Administrative Appeals Tribunal against that decision.

The decisions in Mercy Private Hospital and St Catherine’s School identified circumstances that may amount to a reasonable excuse and whether the burden lay on the property owner to establish a reasonable excuse, or on the Board to prove there was no reasonable excuse. The note by Ms McCutcheon says

As a result of the St Catherine’s decision, it is clear that a building owner or occupier may be able to succeed on an argument that it relied on the services of a reputable contractor to maintain its fire alarm system in good repair to avoid payment of the fee. However, the question is whether St Catherine’s goes far enough? What if the system is old and/or there are a large number of false alarms? Will it still appear reasonable for the building owner or occupier to have relied on a reputable contractor to service the alarm system? As explained by Nathan J, the difficulty lies in that what constitutes ‘a reasonable excuse’ is not amenable to precise definition. In any given case, this will be a question of fact for the Board or AAT to determine.

The Court in Mercy Hospital confirmed that the Board must determine that there was no reasonable excuse. Byrne J said:

… Although the procedure required by s32D is in no way an adversary one, it is to be expected that in the case where the board does consider a notice to pay may be appropriate, it should enquire as to the existence of a reasonable excuse for the alarm being given, and that that enquiry would, in the first instance, be directed to the owner or occupier who is at risk of receiving a notice to pay. In such an enquiry, concepts more appropriate to formal court proceedings such as onus of proof and risk of non-persuasion may not be appropriate. Nevertheless, it seems to me that the board is entitled to have regard to the fact, if it be the case, that the owner or occupier has proffered as a reasonable excuse an explanation which was palpably inappropriate, inadequate or unconvincing, or that it proffered no explanation at all. Even in such a case the statute requires the board to make an affirmative determination before it may exercise its discretion to issue a notice to pay. If the board reaches a determination that there is a reasonable excuse or if it is unable to reach any determination on the question, then the further step [of issuing a notice to pay] may not be taken.

In other words it is not the case that the Board was permitted to issue a notice to pay after a false alarm unless the occupier satisfied the Board that there was a reasonable excuse. Rather the Board had to investigate and be satisfied that there was no reasonable excuse before it could proceed to issue the notice.

The modern version of s 32D is more detailed than the version that applied in 1990.  Today the Fire Rescue Victoria Act 1958 (Vic) s 32D says, relevantly:

False alarm of fire

(1) This section applies if a unit in the Fire Rescue Victoria fire district responds to a false alarm of fire at a premises given by or originating from—

(a) an automatic fire alarm system; or

(b) equipment designed to detect a fire or other emergency conditions and transmit a signal of that detection.

(2) Fire Rescue Victoria may, by written notice, require the owner, occupier or owners corporation of the premises to provide details of the circumstances of the false alarm of fire to Fire Rescue Victoria.

(3) A person who receives a notice under subsection (2) may provide Fire Rescue Victoria with an explanation of the circumstances of the false alarm of fire and any information supporting the explanation including maintenance and testing records.

(4) [Deals with procedural matters and time limits] …

(5) After the expiry of the period provided under subsection (4)(b) for the provision of an explanation, Fire Rescue Victoria must consider whether or not there was a reasonable excuse for the occurrence of the false alarm having regard to—

(a) subject to subsection (4), any explanation and information provided by the person under subsection (3); and

(b) any report of the member of the operational staff who attended at the false alarm of fire at the premises; and

(c) the history of any attendances at the premises; and

(d) any other information that Fire Rescue Victoria considers is relevant.

(6) If, after considering the matters referred to in subsection (5), Fire Rescue Victoria is not satisfied that there was a reasonable excuse for the occurrence of the false alarm of fire, Fire Rescue Victoria may by written notice require the person to whom the notice under subsection (2) was given to pay to Fire Rescue Victoria the fees and charges prescribed for the attendance of the unit in response to the false alarm.

(7) [Provides for an appeal to VCAT]…

(8)[Time limits for lodging an appeal].

The effect of the modern Act is much the same. The notice to pay can be issued only if the Brigades attend in response to a false alarm and only if ‘Fire Rescue Victoria is not satisfied that there was a reasonable excuse for the occurrence of the false alarm of fire’.  What the modern s 32D is set out more procedural matters – FRV is to give notice requiring details to be provided (s 32D(2)) and must take into account the matters listed in s 32D(5). This is a more extensive list than in the 1990 Act where the Board was only required to consider ‘a report by an officer of the Board relating to the false alarm’.

Let me then turn to the question:

Internally at FRV, there has been discussion of moving to a “flat fee” charging model that does not consider reasonable excuses. i.e $900 per attendance for any attendance.

•          Do you think this model would be possible? and;

•          what legislative change would be required?

The model of a ‘flat fee’ charge, without regard to ‘reasonable excuse’ would not be possible with the current s 32D.  As Byrne J said “… the statute requires the board to make an affirmative determination before it may exercise its discretion to issue a notice to pay. If the board reaches a determination that there is a reasonable excuse or if it is unable to reach any determination on the question, then the further step [of issuing a notice to pay] may not be taken.” Today before FRV can charge for attendance at a false alarm it must:

  • Invite the owner, occupier or owners corporation provide details of the circumstances of the false alarm (s 32D(2));
  • Consider the circumstances raised the owner, occupier or owners corporation as well as the other matters raised in s 32D(5);
  • Determine whether it is ‘is not satisfied that there was a reasonable excuse for the occurrence of the false alarm’ (s 32D(6)) and then;
  • Determine whether to issue the notice to pay.

Fire Rescue Victoria cannot issue a notice to pay without first going through those steps and deciding that it is not satisfied that there was a reasonable excuse.  If they do not make enquiries and consider the factors listed then FRV cannot be satisfied that there was no reasonable excuse, and if there is not that state of mind then they cannot issue a fee. A fee without considering reasonable excuse would not be possible with the current s 32D.

As for a fee of $900, it is not up to FRV to determine the fee; the fee is set by the regulations. The fee is currently (Fire Rescue Victoria (General) Regulations 2020 (Vic) r 17 and Schedule 2)

39·06 fee units for each appliance in attendance for each 15 minutes (or part of 15 minutes) during which the appliance is absent from its station.

A fee unit is currently $15.29 so the fee is $597.23 per 15 minutes per unit.

That answer depends on the current legislation. If the Victorian Parliament were willing to amend the legislation then of course anything is possible.  The Parliament could write a new s 32D imposing strict liability on ‘the owner, occupier or owners corporation’.  Whether the parliament would want to do that is of course another matter.  The Parliament may well feel that false alarms are part of the cost of providing fire protection and it’s better to go to false alarms than not be notified of fire at all.  And the Parliamentarians may feel that an owner who pays a reputable professional to install and maintain an alarm should not have to pay if, as is the way, sometimes things go wrong. 

Conclusion

Under the current legislation Fire Rescue Victoria could not move ‘to a “flat fee” charging model that does not consider reasonable excuses. i.e $900 per attendance for any attendance’ at a false alarm.  Such a scheme would be possible but would require the legislature to rewrite s 32D of the Fire Rescue Victoria Act 1958 (Vic) and the Fire Rescue Victoria (General) Regulations 2020 (Vic).

This blog is made possible with generous financial support from the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), Natural Hazards Research Australia, NSW Rural Fire Service Association and the NSW SES Volunteers Association. I am responsible for the content in this post including any errors or omissions. Any opinions expressed are mine, and do not necessarily reflect the opinion or understanding of the donors.

Categories: Researchers

Paramedic taking and publishing photos whilst at work

18 February, 2023 - 06:00

The issue of emergency responders taking photos has been raised on this blog – see the posts you can find here – https://australianemergencylaw.com/?s=%22taking+photos%22.  In one post – US legislation on taking photos at emergency scenes (August 24, 2012) I was asked whether Australia needed specific legislation to stop responders taking photos and then publishing them on social media.  In that post I said:

Do I think such legislation is needed here?  As the author of the article, David Givot, says “As for the new law in N.J., it makes terrific sense. If you don’t want such a law in your state, don’t give your legislature a reason to pass one.”

I’m not familiar of cases where emergency responders have taken photos and then distributed them online.  In the absence of any problem, a legislature is unlikely to see passing such a law as important, but if responders start taking and distributing these sorts of photos, then the need for such a law may become apparent.

There is now a case where a paramedic did take a photo and publish it on social media and that paramedic has been subject to disciplinary proceedings by Queensland Ambulance Service. In Turner v Queensland Ambulance Service [2022] QIRC 471 (02 December 2022) Mr Turner faced two allegations; they were:

Allegation One

On 12 May 2021, you inappropriately captured an image containing confidential information on your personal mobile phone and published this on social media.

Allegation Two

On May 12 2021 [sic], you used a mobile phone whilst operating a QAS vehicle in ‘D’ [drive] mode.

He admitted both allegations ([9]). He was penalised ([2]-[3]) by a reduction in pay grade and time limits on when he could progress back through the lost pay grades. He was also required to ‘complete Code of Conduct and Ethical Decision Making training and meet with his supervisor to discuss his understanding of information privacy and the training’.  He appealed against the severity of the penalty.  He argued both when invited to make submissions on penalty to the decision maker ([14]), and on appeal ([19]), that the appropriate penalty was a reprimand and that the financial penalty was excessive.

Allegation 1

Because the issue was about penalty, and not about whether the action happened, the Commission does not give any detail about what the photograph was.  It is accepted that the breach was inadvertent.  At [54], Commissioner Knight said:

It cannot be disputed that the confidentiality obligations imposed on Mr Turner are for the protection of his patients, and other patients of QAS. Regardless of his intentions or the inadvertence of his conduct, the publishing of confidential patient information on social media is not acceptable.

Reading between the lines I infer that perhaps he took a photo inside the ambulance and accidentally caught information that was being displayed on a data terminal?

Allegation 2

This issue is much more complex and with respect to the Commissioner the reasoning is far less satisfactory.

On 12 May 2021, the Transport Operations (Road Use Management – Road Rules) Regulation 2009 (Qld) r 300 said (emphasis added):

The driver of a vehicle (except an emergency vehicle or police vehicle) must not use a mobile phone that the driver is holding in the driver’s hand while the vehicle is moving, or is stationary but not parked.

An emergency vehicle was defined (Schedule 5) as:

a motor vehicle driven by a person who is—

(a) an emergency worker; and

(b) driving the vehicle in the course of performing duties as an emergency worker.

The term ‘emergency worker’ included ‘an officer of the Queensland Ambulance Service’.

In the disciplinary proceedings QAS relied on ‘the Code of Conduct for the Queensland Public Service (‘Code of Conduct’) … standard 3.1(c) in respect of Allegation Two’ ([10]).  The Code of Conduct (1 January 2011) says

3.1 Commit to our roles in public service

Our role is to undertake our duties, and to give effect to the policies of the elected government, regardless of its political complexion. We will:…

c. comply with the laws of State, Australian and local governments.

Mr Turner did not (as far as we know) appear before the Magistrate’s Court charged with a traffic offence. Nor (as far as we know) did he receive an infringement notice. Certainly, in the Commission’s findings there is no reference to proceedings where Mr Turner’s guilt of an offence contrary to r 300 was established.  But Mr Turner admitted both allegations ([9]) so the Commission did not address the terms of the Transport Operations (Road Use Management – Road Rules) Regulation 2009 (Qld) r 300 and did not consider if the exemption for emergency workers meant that Mr Turner had complied with the relevant law.  At [55] Commissioner Knight said:

Likewise, although the vehicle was stationary at the time, operating a mobile phone while stationary but not parked, is an offence under the Transport Operations (Road Use Management – Road Rules) Regulation 2009 (Qld).

With respect to Commissioner Knight, it appears that it was not an offence from Mr Turner to use the phone as he was a member of QAS. Unfortunately that argument was not made, nor addressed.  One might infer that Mr Turner was admitting that at the time he was not ‘performing duties as an emergency worker’. In the letter from QAS advising that they were satisfied the allegations has been established, the decision maker said (at [16], emphasis added) ‘You chose to operate a vehicle in an unsafe manner, whilst entertaining your own personal agendas rather than the interests of the QAS and your patient’. One might accept that taking photos for social media is not then ‘performing duties as an emergency worker’ whereas using a phone to call ahead to the hospital may be.  It is however an unsatisfactory outcome, given the terms of both r 3.1(c ) of the Code of Conduct and the Transport Operations (Road Use Management – Road Rules) Regulation 2009 r 300 as it was (and as it still is, see below) that the issue of whether or not Mr Turner had in fact failed to comply with the relevant law, was not addressed in the Commission’s reasons.

Outcome

The Commission’s role was to determine whether the original decision was fair and reasonable ([5]). Having considered the decision maker’s reasoning and the various options available to the QAS, Commissioner Knight determined (at [62]-[63]) that:

… the decision to impose the penalty of the reduction in Mr Turner’s pay code to be fair and reasonable.

Although the decision-letter itself is somewhat lacking in detail, I am satisfied QAS has demonstrated an intelligent justification for the penalty, and that it is appropriate in the circumstances.

Conclusion

The issue of taking photos whilst on duty arises regularly on this blog.  This is the first case that I know of where a responder has been disciplined for taking photos and publishing them on social media.

As a lesson learning tool, however, the Commission’s reasoning is unsatisfactory. Without some details of what was captured in the image, readers of the case get no guidance on what is prohibited.  Was it information on a data terminal? The patient’s face? 

With respect to allegation 2 the reasoning is even less satisfactory. The Commission agreed that ‘operating a mobile phone while stationary but not parked, is an offence under the Transport Operations (Road Use Management – Road Rules) Regulation 2009 (Qld)’ but failed to address the terms of r 300 as it then was so did not address why Mr Turner, as the driver of an emergency vehicle had committed that offence when he was, prima facie, exempt from that rule. Again paramedics who might look for guidance are left to infer that using a phone as a camera in these circumstances was not ‘‘performing duties as an emergency worker’ and therefore outside the exemption in r 300.

With respect to both allegation 1 and allegation 2 there is little to guide future practitioners other than a general warning to keep your phone in your pocket whilst at work.

CHANGES TO THE LAW

Rule 300, quoted above, was the law as at 12 May 2021.  The rule was amended by the Transport Legislation (Distracted Driver and Other Matters) Amendment Regulation 2021 (Qld) with effect from 16 July 2021. Rule 300(1) now says that the ‘driver of a vehicle must not use a mobile phone while the vehicle is moving, or is stationary but not parked’.  Rule 300(4) says ‘This section does not apply to the driver of an emergency vehicle or police vehicle.’   The definition of emergency vehicle and emergency worker is unchanged.

At the time of the offence, and now, the prohibition on using a mobile phone did not and does not apply to a member of QAS when ‘driving the vehicle in the course of performing duties as an emergency worker’. 

This blog is made possible with generous financial support from the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), Natural Hazards Research Australia, NSW Rural Fire Service Association and the NSW SES Volunteers Association. I am responsible for the content in this post including any errors or omissions. Any opinions expressed are mine, and do not necessarily reflect the opinion or understanding of the donors.

Categories: Researchers

Questions of racial discrimination

17 February, 2023 - 06:00

Today’s correspondent is a member of the NSW SES who is aware of an event where:

… a pair of paramedics had chosen to wait for police assistance rather than entering a premise to assist a person who had been assaulted. There was no evidence that the paramedics were faced with any actual violence or a threat of the same. The paramedics were in an area (which might be casually described as a “mission”) where there was regular civic disorder and in which emergency services had been assaulted in the past. The area is almost entirely occupied by Aboriginal Australians.

I was reminded of a situation I was faced with … where the local SES unit instructed me that no emergency services ever went into a local area (again which might be casually described as a “mission”) which was almost entirely occupied by Aboriginal Australians.

On reflection, I think I would be distressed and disappointed if a member of my unit failed to render assistance to a person who needed it based on the fact that the person was in one of the areas of Australia casually described as “missions”. Of course, if they were exposed to actual or threatened violence, that is a very different proposition.

I wonder whether the service would be liable for a potential consequence through the Racial Discrimination Act or, indeed, an action in negligence?

That is a timely question given in my response to an earlier question I said that the Anti-Discrimination Act 1977 (NSW) did not apply to the Rural Fire Service (Disability discrimination in NSW RFS (February 10, 2023)), but that was in the context of the RFS vis-à-vis its volunteers given that the volunteers were not employees. That conclusion does not apply in this context.

In the context of today’s question, the SES (and in a different emergency, the RFS, NSW Ambulance and Fire and Rescue NSW) is providing a service to the community.  The Anti-Discrimination Act 1977 (NSW) says that racial discrimination occurs a person treats another person ‘less favourably’ than they would treat another person of a different race (s 7(1)).  Further (s 7(2)):

… something is done on the ground of a person’s race if it is done on the ground of the person’s race, a characteristic that appertains generally to persons of that race or a characteristic that is generally imputed to persons of that race.

With respect to the provision of goods and services the Act says (s 19):

It is unlawful for a person who provides (whether or not for payment) goods or services to discriminate against another person on the ground of race–

(a) by refusing to provide the person with those goods or services, or

(b) in the terms on which the other person is provided with those goods or services.

In the context of the question asked, the services are not refusing to provide the relevant service but may be changing the terms on what that service is provided, ie only with police attendance.

As my correspondent says, if there is ‘actual or threatened violence, that is a very different proposition’. If there is not then the issue is whether that decision is based on race, or other considerations. That is impossible to answer in the abstract as it depends on the state of mind of either the responders who insist on calling for police backup, or the more senior management who direct them to wait for police backup.

If their reason for waiting for police is based simply on assumptions about the behaviour of aboriginal persons then yes, that would be unlawful discrimination.  If it is based on evidence about past experiences and the response is reasonable and consistent with how others are also dealt with then it may not be.  That argument would be easier to make if it were address based, rather than ‘area’. For example, if emergency services flag addresses where responders have been subject to violence or other risks, and that is done and can be shown to have been done regardless of the occupant’s race, then that would suggest no racial discrimination. But to mark of an entire area, particularly one that is ‘almost entirely occupied by Aboriginal Australians’ must at least raise a question of racial discrimination.

If there are issues with access to indigenous communities, it would be incumbent upon the SES (and other emergency services) to work with the indigenous communities to ensure that the communities receive, and the agencies provide, the services that they are established to provide.

As for negligence a fail to respond in a timely manner could be negligent save for the general rule that there is no duty to rescue (see for example No duty to prevent a disaster and no duty to rescue (December 26, 2018) and of course if the decision to wait is reasonable (as it might be if there was actual or threatened violence or there was a known history of risk at a particular address) then it could not be negligent.

This blog is made possible with generous financial support from the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), Natural Hazards Research Australia, NSW Rural Fire Service Association and the NSW SES Volunteers Association. I am responsible for the content in this post including any errors or omissions. Any opinions expressed are mine, and do not necessarily reflect the opinion or understanding of the donors.

Categories: Researchers

Health professionals providing first aid in Victoria

16 February, 2023 - 06:00

Today’s correspondent asks:

What is the legal standing of healthcare professionals, such as doctors or nurses from local country hospitals, urgent care clinics, or doctors clinics in Victoria, when providing medical or first aid services at events in their local towns? (eg, local sporting events such as the football grand finals, bike events or country agricultural shows etc)

Does the absence of a license under the Non-Emergency Patient Transport and Event First Aid Act / Regulations impact their ability to offer such services?

Are there any circumstances, such as not being paid or gifted anything in kind, attending in an unofficial capacity with equipment and medications, or acting spontaneously in an emergency, that could alter this?

The reference to the Non-Emergency Patient Transport and Event First Aid Act / Regulations is a reference to the Non-Emergency Patient Transport and First Aid Services Act 2003 (Vic). There are regulations under the Act, in particular the Non-Emergency Patient Transport and First Aid Services (First Aid Services) Regulations 2021 (Vic) and the Non-Emergency Patient Transport Regulations 2016 (Vic) but we don’t need to look to those to answer this question.

The Act says (at s 42I) ‘A person must not operate a first aid service unless that person holds a first aid service licence’.  That begs the question of what is a ‘first aid service’.  That term is defined in s 3 as ‘a service of offering or providing first aid in exchange for payment’. Section 42H provides some more detail by defining what is not a first aid service. That section says:

For the purposes of this Act, the following persons do not operate a first aid service—

(a) a volunteer first aid association, including any individual who provides first aid as part of that volunteer first aid association;

(b) a life saving club, including any individual who provides first aid as part of that life saving club;

(c) Life Saving Victoria;

(d) an individual who is employed by an organisation to provide first aid to persons employed or engaged by that organisation in the course of the business carried on by the organisation;

Example

A person who is employed by a mine operator to provide first aid to staff of that mine operator.

(e) an individual who provides first aid in the course of their work at a hospital, medical clinic or allied health service;

(f) a medical clinic or allied health service;

(g) an individual who encounters by chance a circumstance that appears to require the provision of first aid and who provides that first aid.

To turn then to the questions –

A first aid service is a service provided in ‘exchange for payment’.  It follows then that yes, there are circumstances, ‘such as not being paid’ that are relevant.  If a doctor or nurse agrees to provide first aid services at a community event, and they are not getting paid then they are not in breach of the Act.

Secondly if a person, including a doctor or nurse, just happens to be there when someone needs first aid and they come to assist then that, too, is not in breach of the Act (s 42H(g)).

A medical clinic (s 3) is ‘premises at which clinical consultation is undertaken, other than a hospital or a day procedure centre that is registered as a health service establishment under the Health Services Act 1988’.  A doctor who operates a surgery in the town and who provides a service at the event, perhaps working from a room and who bulk bills Medicare or bills patients with a Medicare number would, arguably, be engaged in his or her practice and would also be exempt from the provisions of the Act (s 42H(e) and (f)).  One might argue that the community event is not the ‘medical clinic’ but one has to infer that a person’s employment in a medical clinic can extend to providing treatment outside that clinic (eg on house calls) and if there is a dedicated first aid room, that would be ‘premises’. 

Conclusion

Provided ‘healthcare professionals, such as doctors or nurses from local country hospitals, urgent care clinics, or doctors clinics’ are not offering to provide services in exchange for payment (other than, arguably, a doctor who is billing patients or Medicare in accordance with his or her normal practice) is not acting contrary to the Non-Emergency Patient Transport and First Aid Services Act 2003 (Vic).  A healthcare professional who is at an event, as a participant or spectator, is also not in breach of the Act if he or she renders first aid to someone who needs it.

This blog is made possible with generous financial support from the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), Natural Hazards Research Australia, NSW Rural Fire Service Association and the NSW SES Volunteers Association. I am responsible for the content in this post including any errors or omissions. Any opinions expressed are mine, and do not necessarily reflect the opinion or understanding of the donors.

Categories: Researchers

Two Queensland paramedics disciplined for striking their patients

15 February, 2023 - 13:12

In two unrelated cases, two Queensland paramedics have faced allegations of hitting their patients.  In both cases the allegations were considered by a delegate of QAS who found the allegations were proved. Before the question of an appropriate response or penalty was considered, the paramedics appealed to the Queensland Industrial Commission seeking to overturn the finding of misconduct.

In these cases the issue for the Commission is to determine whether the delegate’s conclusions were ‘fair and reasonable’. These are not a rehearing where the Commission comes to its own findings but a review of the original delegates process. In legal terms it means the Commission is performing a ‘judicial review’ not a ‘merits review’.

In both cases the Commission determined the matter ‘on the papers’ which means the Commissioner had the material that was before the QAS and the submissions the parties made in writing, but no further evidence was admitted and no-one gave evidence from the witness box.

Danaher v State of Queensland (Queensland Health) [2022] QIRC 407 (25 October 2022)

Mr Danaher is an experienced Advanced Care Paramedic.  In May 2021 he was working a night shift with another paramedic and a student. 

They were dispatched to attend upon a patient who was reportedly intoxicated and unconscious.  Mr Danaher was the patient care officer, which meant that he took primary responsibility for the care of the patient.  In the ambulance on the way to the Royal Brisbane and Women’s Hospital, the patient began vomiting and was wrapped in towels for the protection of her clothing and the equipment in the ambulance. During the transportation, the patient began to regain consciousness. [2].

Whilst there was a dispute as to what happened, Mr Danaher admitted (at [3]) ‘that he ‘flicked’ the patient on the side of the head.  The formal allegation was that he was guilty of misconduct when (at [4]) he ‘hit a female patient on the face with your hand whilst transporting the patient to hospital in an ambulance.’ 

Commissioner Pidgeon summarised Mr Danaher’s submissions to QAS (at [21]) as:

  • Contact was made with the patient’s head by way of a flick, following the patient throwing a ‘sats probe’ at Mr Danaher.
  • The witness to the interaction did not have a proper view of the interaction and, as a student, may not have had the experience to understand the situation.
  • Earlier in that shift, Mr Danaher experienced ‘one of the most physically and emotionally traumatic experiences in his career with QAS’ and that on reflection, he should have withdrawn from duty after the first traumatic incident but he tried to continue working.
  • Mr Danaher is concerned about the investigation process and says that the investigator excluded evidence provided by him during the investigation.
  • The investigator did not take into consideration that one of the witnesses was driving and could not reliably recall matters, one of the witnesses could not clearly hear or see the patient and that no witness has provided a clear account of what he or the patient may have said.
  • He was not mimicking the patient but using a style of communication to maintain the patient’s verbal communication and minimise the risk of escalation to physical behaviour.

The QAS delegate (at [14]-[19]) had the evidence of the student paramedic who, reluctantly, gave evidence that Mr Danaher had hit the patient, that Mr Danaher’s hand had come into contact with the student paramedic’s hand as she was, at the time, holding the patient’s head.  Given her (what I would think was understandable) reluctance to report a training officer the delegate could find no reason to think that she would exaggerate the incident but Mr Danaher had good reason to try to downplay its seriousness.  Mr Danaher agreed that the patient ‘recoiled’ at the contact to her face or head and that she said ‘Don’t hit me’ and he said ‘Don’t throw stuff at me.’

Having found that Mr Danaher had hit the patient on the face, the delegate turned to the question of whether there was a ‘reasonable excuse’ for this conduct.   The delegate considered (at [21]-[27]) that a sats probe was unlikely to cause ‘any pain, let alone injury’ whether it was thrown or accidentally flicked off the patient’s finger as she ‘was waving and flicking her hand around’.  Even if she did throw it, striking her was ‘’inappropriate, disproportionate, and contrary to the limitations proposed by the Clinical Practice Manual – Use of Force.’  With regard to an earlier event, described as ‘one of the most physically and emotionally traumatic experiences in his career’ it was noted that this was not recorded in any ambulance report. The fact that it was only raised during these proceedings made the delegate ‘concerned that Mr Danaher has seemingly only raised the issue as a means to further justify or minimise his conduct.’  The delegate determined that there was no reasonable excuse for Mr Danaher’s conduct.

On appeal, Mr Danaher’s submissions were against summarised by Commissioner Pidgeon (at [28]):

Submissions were filed by QAS and Mr Danaher filed further submissions in reply that need not be summarised other than Mr Danaher’s submission that the process was unfair and designed to come to a pre-determined outcome ([56] and [60]).

  • The photo provided by [the QAS delegate] … is not a true depiction and the Student Officer’s view was obstructed.
  • The Student Officer may have used the terms face and side of head interchangeably.
  • It is not necessarily easy to implement textbook theory into stressful practical situations and this was a serious, threatening situation.
  • The patient recoiled in surprise only, a heavy impact would have cause the Student Officer to remove her hand when contact was made.
  • ‘Hit’ is an equivocal term for any type of strike.
  • Mr Danaher reacted to the ‘intent’ of the patient and this ‘preceded’ his reaction.
  • His action was reflexive and occurred immediately.
  • Mr Danaher was assisted by a lawyer prior to making his statement. His response was ‘simply a collaborative attempt to explain & rationalise a behaviour, which was out of character’.
  • Mr Danaher knew his actions were serious and he considered the worst case scenario of termination when speaking to the Operations Supervisor following the incident.
  • Mr Danaher says that he knows the patient was exaggerating her level of consciousness and no inference should be made from him forming a view that the patient was not as unwell as first thought.
  • Mr Danaher did not intentionally mock the patient. The witnesses statements ‘make vague references, with no clear recollection of specifics.’
  • The incident Mr Danaher described as occurring earlier in the night occurred.  Mr Danaher says that the Student Officer was not asked about that incident in her interview.
  • Mr Danaher says that he never recorded the incident he says occurred earlier in the night because he was not given time during his shift to complete the form and then his shift finished half way through.
  • With regard to his description of the event that happened earlier in the night as ‘one of the most physically and emotionally traumatic experiences in my career with Queensland Ambulance’, Mr Danaher says that these were not his words and that he was assisted in preparing his initial rebuttal by a lawyer, who reformulated his statements.  Mr Danaher says that it ‘was clearly an exaggeration’ he ‘was never comfortable with’ but that it does not mean that it did not affect his state of mind later in the shift.
  • Mr Danaher believes that he was always been honest about the events.
  • Mr Danaher says that from the first moment he was confronted about the incident, he stated that he ‘flicked’ the patient on the side of the head with the back of his fingers.  The Appellant says this is confirmed in Officer Johnstone’s evidence statements.
  • Mr Danaher’s description reflected an immediate recollection of events, exactly as they happened.

Having considered the evidence that was before QAS, Commissioner Pidgeon said (at [67]-[68]):

Having considered Investigation Report and after taking into account Mr Danaher’s criticisms of it, I find that it was open to the Investigator to determine that on the balance of probabilities, the allegation is capable of substantiation.

There is nothing in the material, including Mr Danaher’s own evidence, which serves to set aside the finding of the Investigator that Mr Danaher struck the patient on the head or face and that the flick or strike was disproportionate to the patient throwing a SATS probe weighing 19 grams in his direction or at his torso.

As for the process, Commissioner Pidgeon said (at [70]-[71]):

I am satisfied that Mr Danaher has been afforded procedural fairness throughout the disciplinary process so far.

Mr Danaher submits that the delegate had ‘pre-determined’ the outcome.  It seems to me that the delegate gave consideration to all of Mr Danaher’s submissions, but ultimately found that the allegation was substantiated and that there were grounds for discipline.  I understand that Mr Danaher disagrees with the outcome, however I do not find that there is evidence that it was ‘pre-determined’.

Commissioner Pidgeon reviewed the evidence and submissions and concluded (at [80]) that it ‘was open to the delegate to determine that, having taken into account all of Mr Danaher’s submissions, on the balance of probabilities, the allegation was substantiated.’ The next question is whether that conduct amounted to misconduct within the meaning of the Ambulance Service Act 1991 (Qld) s 18A; that is ([16]):

(a)        inappropriate or improper conduct in an official capacity; or

(b)       inappropriate or improper conduct in a private capacity that reflects seriously and adversely on the ambulance service.

At [85]-[86] Commissioner Pidgeon said:

It is clear that a finding of misconduct requires there to have been some kind of deliberate departure from accepted standards. Having found the allegation substantiated on the balance of probabilities on the basis of a finding that Mr Danaher’s contact with the patient was intentional and involved some forethought, I find that it was open to the delegate to characterise the conduct as misconduct as provided for in s 18A of the Ambulance Service Act.

For the foregoing reasons, the decision appealed against is confirmed.

That is not the end of the matter. Prior to the appeal, Mr Danaher was advised that the delegate was (at [8]) ‘considering imposing the disciplinary action of termination of employment’ and Mr Danaher had been invited to make submissions where he could argue that some lesser penalty was appropriate. Given the finding of misconduct has been confirmed, the process will (or at least should) pick up from that point where Mr Danaher should be given further opportunity to make submissions as to penalty.

Fisher v Queensland Ambulance Service [2023] QIRC 39 (10 February 2023)

This case again involved an advance care paramedic who faced two allegations. They were (at [2]):

Allegation 1

It is alleged that at approximately 12:58:07 on 1 July 2021 at TUH, you inappropriately used force by taking hold of a female patient’s wrist.

Allegation 2

It is alleged that at approximately 12:58:09 on 1 July 2021 at TUH, you inappropriately caused injury to a female patient by striking her in the face with your closed fist.

It should be noted that the patient (Patient A) was not Mr Fisher’s patient, but a hospital patient who it was alleged was threating the patient who was in Mr Fisher’s care ([37]).

Allegation 1

With respect to allegation 1 Mr Fisher denied grabbing the patient’s wrist, rather he said (at [25]):

… that Patient A’s arm was raised toward the Appellant in a swinging motion parallel with the ground, and that the Appellant parried the forearm away with brief contact. The Appellant contends that characterising the contact as “taking hold” is not fair and reasonable, rather the contact was “fleeting, unaggressive, and not such as to cause harm.”

Mr Fisher relied on CCTV footage of the incident and supportive assessments of three officers who reviewed the footage and agreed that Mr Fisher’s response was reasonable to ‘move [her] arm out of the way’ ([26]).  Mr Fisher argued (at [27]) that ‘that the decision-maker unfairly failed to reconcile conflicting evidence between the eyewitness reports and CCTV footage and failed to reason why the CCTV footage was preferred.’  Commissioner McLennan (at [29]) agreed.  She said  (at [30]):

  • Patient A put her left arm up toward the Appellant’s face;
  • the Appellant parried Patient A’s forearm away with brief contact;
  • the contact with Patient A’s arm was with an “open hand”;
  • the contact described under Allegation One was fleeting, unaggressive, and not as to cause harm; and
  • the Appellant did not “take hold” of Patient A’s wrist.

And (at [34]):

Based upon the CCTV footage and witness testimony, I cannot discern how the decision-maker was actually persuaded that the Appellant took hold of Patient A’s arm. Considering the consequences of the finding if proved, I do not accept that it was open to the decision-maker to be reasonably satisfied that the act occurred as alleged. 

Even so Mr Fisher had used force so Commissioner McLennan continued to proceed whether that was reasonable. Mr Fisher had ample support ([38]-[39]) from other paramedics at the scene and a hospital security officer.  Commissioner McLennan (at [55]) disagreed with the QAS finding that ‘that the initial action taken by the Appellant was an inappropriate use of force.’  She said (at [57]-[61]):

Decision-makers should not take narrow views or make generalised assumptions when dealing with circumstances like this – one where the Appellant and other officers present were faced with a difficult and delicate situation. As the definition of “reasonable” required consideration of what “a careful officer of a similar class (level of training and experience) would do when confronted with the exact same situation”, I would expect the decision-maker to take into consideration the observations of the other QAS officers present that day.

When assessing if an authorised officer had acted reasonably, the [QAS Occupational Safety Training-Violence Protection (OST-VP) Manual (2016)] … indicates regard should be had for circumstances including: the patient, mindset of bystanders, perceived level of danger to the patient and others, the need for urgent action, the circumstances surrounding that situation, and the environment itself…

My objective observations of the CCTV footage coupled with the eye witness testimony persuades me that the Appellant was taking care of a patient requiring medical attention. He then observes Patient A aggressively moving down the hall, pointing her finger at other officers, pointing her finger at his patient’s support person and then moving into a confined space between the wall and his patient on the stretcher. Patient A turns and focuses her attention on the Appellant’s patient. Based on the CCTV footage and eyewitness accounts, it is not unreasonable that the Appellant assessed there to be a risk that Patient A would either attack someone within that vicinity or continue down the hall and attack someone else.

After moving the support person out of the way, the CCTV footage displays the Appellant moving himself between his patient and Patient A. In his submission, the Appellant moved to create a sort of barrier and eyewitness testimony supports this position … The Respondent appears to take issue with the Appellant moving closer to Patient A rather than just merely standing against the stretcher. The decision-maker assertively concluded “The CCTV footage is clear, you did not, as you now say, move to “create a bit of a barrier.”” That conclusion lacks intelligible justification where the CCTV footage depicts the Appellant forming a barrier between Patient A and his patient.

My view is that not only did the Appellant create a barrier, he also created a buffer between Patient A and his patient. By moving towards Patient A, she retreated further away from the Appellant’s patient…

And at [65]:

It is easy with the benefit of hindsight to view CCTV footage and ponder how the situation could have been better handled. However, putting oneself in the shoes of the Appellant, it rings true that he perceived danger to those in his immediate vicinity and also a risk to those in the triage area. Although possible that neither the Appellant nor his patient would have been struck if the Appellant had not acted, it is also possible that someone else further down the hall may well have been. In light of the totality of circumstances, the decision-maker’s remark that “Nor do I accept that you could not have avoided the situation by running off “down the hall with the stretcher”” lacks intelligible justification and places an unreasonable assumption that there was a simple solution to what was clearly a difficult situation.

In summary Commissioner McLennan found that Mr Fisher did not grab the patient’s wrist but even if he had done so the level of force used was reasonable and consistent with the QAS Occupational Safety Training-Violence Protection (OST-VP) Manual (2016) and so (at [67]) ‘it was unreasonable for the decision-maker to determine that Allegation One is substantiated on the balance of probabilities.’

Allegation 2

The details of this allegation are not clearly set out but it appears that Mr Fisher struck the patient after he ‘was struck in the face by Patient A’ ([79]).  His response was to hit her in the face with a closed fist.  This was not disputed. At [68] Commissioner McLennan said:

Upon review of the CCTV footage, I accept it was reasonable for the decision-maker to conclude that the Appellant struck Patient A in the face with a closed fist. Upon review of the materials filed, it does not appear that the Appellant contests that fact either. The CCTV footage speaks for itself in this regard.

But, at [76]:

I find it cannot be “reasonable” under the Manual for the Appellant to have struck Patient A in the face with his closed fist, regardless of how difficult the situation was.

Commissioner McLennan set out (at [77]) factors relevant to that conclusion. They were:

  • Patient A, albeit aggressive and verbally abusive, is a patient who is presumably unwell;
  • striking a person with a closed fist is a strong use of force;
  • no other method of restraint was first attempted following Patient A striking the Appellant;
  • the Appellant might have walked away from Patient A after she struck him (although, as I have earlier observed, that may well have shunted the problem to another person further down the hall, who may not have been as well equipped to deal with the threat); and
  • given the difference in stature between the Appellant and Patient A, the gravity of the closed fist punch appeared disproportionate.

And at [78]-[79]:

The Appellant indicated that because he did not expect Patient A to strike him, he “reacted without thinking. It was an involuntary reflex.” Although that may be the case, it is in direct contravention of s 1.5 of the Code of Conduct which required the Appellant to treat Patient A with courtesy, respect and present himself in a professional manner. In my view, that provision of the Code of Conduct [for the Queensland Public Service] does not exempt conduct which was “unplanned, spontaneous, unintentional, instinct”.

The Appellant was clearly thrust into a difficult situation. When attempting to diffuse the situation, the Appellant was struck in the face by Patient A. Unfortunately, the Appellant reacted with what appeared to be disproportionate force. I agree that conduct cannot be said to constitute self-defence. I accept the decision-maker’s assessment that the Appellant’s conduct was inappropriate and reject any contention that the finding in relation to Allegation Two was incorrectly reached.

Even though this appeal could not deal with the final outcome of the matter, Commissioner McLennan did note that the proposed disciplinary action was the termination of Mr Fisher’s employment.  Commissioner McLennan said (at [83]-[87]):

My view is that the Appellant sought to diffuse the situation, protect his patient and prevent the possibility of harm erupting in the triage area. I do not accept that the Appellant intentionally provoked the assault, nor did he intentionally escalate Patient A’s mood. The difficult circumstances and absence of other available resources warrant a more understanding approach to this matter.

I would urge QAS to take into account the difficulty of this specific situation which may have had a bearing on the Appellant’s actions, the fact he does not have a violent history, his initial intentions to protect and prevent the possibility of harm, the impact that termination would have on him as well as the possibility for the Appellant to receive further training and learn from this mistake.

I encourage the parties to collaboratively engage as to how the need for disciplinary action may be appropriately addressed.  I have recognised that QAS has not yet ‘determined’ the disciplinary action, but rather has only ‘proposed’ it. The above factors are significant and should be given the appropriate weight by QAS in determining whether termination is a fair and reasonable disciplinary action.

The devastating impact of termination mandates that such a penalty is not undertaken lightly. Certainly, a range of less extreme disciplinary measures are available under s 18B(1) of the Ambulance Service Act 1991 (Qld):

  • reduction of classification level and a consequential change of duties
  • transfer or redeployment to other ambulance service employment
  • forfeiture or deferment of a remuneration increment or increase
  • reduction of remuneration level
  • imposition of a monetary penalty
  • if a penalty is imposed, a direction that the amount of the penalty be deducted from the officer’s periodic remuneration payments
  • a reprimand

In my view, those alternatives should be subject of measured and ongoing consideration.

Although not binding on the QAS, it is hoped the relevant decision maker will take into account Commissioner McLennan’s observations as to penalty.

Discussion

Both these cases reinforce the difficult circumstances that paramedics operate in, but people do get intoxicated, and aggressive and paramedics are required, unlike the rest of us, to confront and deal with those circumstances.  The law of self-defence, although not directly cited, allows the use of reasonable force to stop violence (Zecevic v DPP (1987) 61 ALJR 375), but it has never allowed force in vengeance or retaliation. 

The facts in both cases are not fully explored, but in both cases the paramedic hit the patient in the face (or head) after the patient either threw or flipped on saturation probe, or punched the paramedic. In either case hitting or punching the patient back was not then an act of self-defence, or more importantly in the context, a reasonable use of force as permitted by QAS and Queensland Public Sector training and procedures.

Given the recognition that first responders are subject to inevitable stresses that impact upon their mental health, and that many have faced many years of violence, on would also hope that a remedial rather than punitive approach would be in order. As Mr Danaher said (at [63]):

Throughout my career I have been threatened, assaulted, attacked, kicked, punched and spat on. I soldiered on without complaint.  I turned up for work, and just got on with it. I had over 600 hours of sick leave accumulated. Sometimes I even laughed and joked during the retelling of these incidents with colleagues. That’s how we cope. Sometimes our guard is down – in that brief moment I just simply reacted – I’d just had enough.

A remedial approach may be to take the paramedic off the road for a time, arrange appropriate counselling and support and see if they are fit to return to on-road duty; and if they are not perhaps there is alternative work (perhaps education or coordination), or transfer to another area of the public service and if that is not possible an option to retire rather than be dismissed.

It remains for QAS to determine, in both of these cases, whether in all the circumstances it really is appropriate for either or both to lose their employment given the time they have devoted to QAS and the Queensland community, what it means for QAS and Queensland Health more generally to lose their skills and experience and what it means for them to lose their career.

This blog is made possible with generous financial support from the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), Natural Hazards Research Australia, NSW Rural Fire Service Association and the NSW SES Volunteers Association. I am responsible for the content in this post including any errors or omissions. Any opinions expressed are mine, and do not necessarily reflect the opinion or understanding of the donors.

Categories: Researchers