Professional Development Opportunity

Michael Eburn: Australian Emergency Law - 13 August, 2020 - 15:45

The Australian national University’s Disaster Risk Science Institute is offering a Professional Short Course on Emergency Management in the Australian Federation: Legal and Constitutional Issues. The course will be delivered as three online sessions from 4-6pm on Tuesdays 15, 22 and 29 September 2020.

The teaching staff are, well, me.

If you are interested in taking part more detail can be found

Categories: Researchers

High Court overturns finding of negligence against Queensland paramedic

Michael Eburn: Australian Emergency Law - 13 August, 2020 - 12:57

I have previously reported on the matter of Masson v State of Queensland, first in the Supreme Court of Queensland (Queensland Ambulance not negligent in treatment of patient’s extreme asthma (July 25, 2018)) and then in the Court of Appeal (Queensland Court of Appeal finds paramedic was negligent in treatment of extreme asthma (May 11, 2019)). Today, in State Of Queensland v The Estate of the Late Jennifer Leanne Masson [2020] HCA 28 the High Court unanimously allowed an appeal holding:

… that the State of Queensland, as provider of ambulance services under the name “Queensland Ambulance Service” (“QAS”), was not liable in negligence, either vicariously or directly, by reason of the failure of its ambulance officers to promptly administer adrenaline to Jennifer Masson, a chronic asthmatic, who suffered a severe asthma attack.

The High Court produces a summary statement of its reasons which you can read here – https://cdn.hcourt.gov.au/assets/publications/judgment-summaries/2020/hca-28-2020-08-13.pdf.  The discussion that follows below is my summary of the judgement (and you can read the Court’s reasons, not just the summary, here).

The court was constituted by Kiefel CJ, Bell, Keane, Nettle and Gordon JJ.

Kiefel CJ, Bell and Keane JJ

There were two questions to be answered. The first was ‘did Mr Peters, the treating intensive care paramedic ‘consider’ adrenaline as required by the CPM?’ and if he did ‘was the decision to administer salbutamol in preference to adrenaline a reasonable response?’  The trial judge had determined that the answers to both those questions was ‘yes’. The Court of Appeal found that the answer to both questions was ‘no’.

After recounting the history in the courts below (and reported in my earlier posts) their Honours said (at [10]:

The standard of care expected of Mr Peters was that of the ordinary skilled intensive care paramedic operating in the field in circumstances of urgency . Self-evidently, this is a less exacting standard than that expected of specialists in emergency medicine. The Court of Appeal correctly observed that intensive care paramedics cannot be expected to make fine professional judgments of a kind that require the education, training and experience of a medical specialist. This is not to say, however, that an intensive care paramedic is not expected to exercise clinical judgment. The guidance in the CPM is posited upon the assumption that ambulance officers will exercise clinical judgment and that officers may depart from its guidelines where the departure is justified and is in the best interests of the patient.

Importantly they said (at [11]) that the Clinical Practice Manual (the CPM) ‘was not, determinative of the range of reasonable responses for an intensive care paramedic treating an asthmatic patient in imminent arrest who presented with Ms Masson’s symptoms’. Having assessed Ms Masson’s condition it was open to Mr Peters to act upon his clinical judgment. At [22] they noted:

The stated object of the CPM was the provision for ambulance officers at all levels of clinical practice with a comprehensive guide to pre-hospital treatment and care. Notably, the CPM was said to depart from earlier “Clinical Protocols” in its emphasis on the exercise of officers’ “good judgement”.

And, at [34] they noted that the CPM required treating paramedics to ‘consider’ the use of various drugs.

… the CPM explained the use of the term “consider”:

“When this term is used it implies that the ambulance officer has to make a judgement regarding application of the following treatment modalities based on potential benefits and adverse effects. It does not imply that the following treatments are automatically appropriate or sanctioned. Consultation should be used if doubt exists.”

The Court of Appeal had found that when considering whether to use salbutamol or adrenaline a paramedic should have regard to the speed with which the drugs would act. At [70]-[71] their honours said:

There was no basis in the evidence for concluding, in the case of an asthmatic patient in imminent arrest, that the “consideration” of adrenaline in accordance with the CPM was not to be informed by the ambulance officer’s clinical judgment, allowing that in the case of a patient with Ms Masson’s high heart rate and high blood pressure IV salbutamol might be preferred.

Contrary to the Court of Appeal’s analysis, there was ample evidence to support the trial judge’s finding that, in 2002, a responsible body of opinion within the medical profession favoured the administration of IV salbutamol in the initial stage of treatment for a patient in Ms Masson’s overall condition, with her high heart rate and high blood pressure.

At [73] they said:

Intensive care paramedics are expected to exercise clinical judgment in applying the guidance contained in the CPM. If, as the trial judge found, Mr Peters’ decision to administer IV salbutamol to Ms Masson reflected his judgment that her high heart rate and high blood pressure were contra indications for adrenaline, the fact that that judgment was supported by a responsible body of opinion within the medical profession would be inconsistent with finding that Mr Peters failed to apply reasonable care. It remains to consider whether the Court of Appeal was right to overturn the finding that Mr Peters’ decision not to administer adrenaline in his initial treatment of Ms Masson was a clinical judgment.

In other words, the issue at this point became whether Mr Peters made a clinical decision. The CPM flowchart (shown in the earlier posts) identified the following symptoms as indicative of a patient at risk of ‘imminent arrest’:

GCS < 12/

Bradycardia/

Absent pulses

In those case a paramedic was directed to, amongst other things, consider adrenaline. The question was did Mr Peters consider and reject adrenaline (ie make a clinical judgement) or did he not consider adrenaline because Ms Masson was hypertensive and tachycardic, not bradycardic. At [78] their honours said:

… it was clear that Mr Peters considered adrenaline, the inference that he rejected it because he believed that Ms Masson’s tachycardia and hypertension were contra-indications for its use was well open. The trial judge’s finding that Mr Peters made a clinical judgment not to administer adrenaline because of the presence of Ms Masson’s high heart rate and high blood pressure was neither contrary to compelling inferences nor glaringly improbable. It should not have been overturned.

In other words, Mr Peters did not misunderstand that the CPM was intended to be a flexible guide to decision making rather than a strict, inflexible protocol. He understood that he had to make a call on which treatment to give and he did consider adrenaline, but determined that in the circumstances salbutamol was the preferable drug given Ms Masson’s presentation. He understood he needed to ‘consider adrenaline’ and he did, and ruled it out- a clinical judgment.

They concluded (at [79]):

The trial judge was rightly critical of the tendency of the parties in argument to treat the flowchart as if it were a statute or legal document. As his Honour explained, the flowchart was “intended to guide and assist rather than [to] proscribe decision-making” . The flowchart prompted consideration of adrenaline but did not require its administration. The decision Mr Peters made in the face of Ms Masson’s high heart rate and high blood pressure, to administer IV salbutamol, was supported by a responsible body of medical opinion. In the circumstances, his Honour’s conclusion that Mr Peters’ treatment of Ms Masson did not fall below the standard of care expected of an ordinary skilled intensive care paramedic was clearly correct.

Nettle and Gordon JJ

Their honours reviewed the evidence and the proceedings in the lower courts and said (at [139]):

In the result, the overall effect of the evidence led before the primary judge was that a responsible body of opinion in the medical profession in 2002 supported the view that Ms Masson’s high heart rate and blood pressure in the context of her overall condition provided a medically sound basis to prefer salbutamol to adrenaline at the time of initial treatment. Further, as his Honour observed , he was bound to bear in mind that paramedics are not medical practitioners specialising in emergency medicine. In the urgent reality with which Mr Peters was presented, he was faced with the dilemma of choosing between the administration of adrenaline, which he correctly understood would carry a real risk of worsening the patient’s condition, and salbutamol, which did not carry that risk. Consistently with a responsible body of medical opinion, he chose the latter, and such evidence as there was of practice among paramedics was that it was not an inappropriate decision. The reality was, as his Honour said , that this was a decision which could reasonably, in light of the competing risks, have gone either way. No breach of duty of care was established.

Discussion

This case is a recognition of growing professionalism in paramedicine. Led by the ambulance services (in this case QAS) paramedic ‘protocols’ have moved to ‘guidelines’ recognising the capacity of paramedics to make complex decisions when faced with complex conditions. The High Court has recognised that development and acknowledged that paramedics are capable of and expected to make clinical decisions. Those decisions need to accord with a ‘responsible body’ of opinion.

In that area there is still some way to go. Unlike earlier cases (think Neal v Ambualnce Service of NSW, Ambulance Service of NSW v Worley and Lithgow City Council v Jackson, all discussed on this blog) there was evidence from paramedics in this case. Each side called an ‘expert paramedic’ but they also both called ‘expert medical practitioners’ so there is still some way to go before a court will say that a decision has to be consistent ‘with a responsible body of para-medical opinion’ but there is a start.

Most importantly the court recognised that Mr Peters was an appropriate clinical decision maker. He had training and experience and knowledge to bring to bear and he was facing a complex case where drugs such as adrenaline were both indicated, and contra-indicated. Recognising that a poor outcome does not mean a poor decision is vindication that paramedics are not mere automatons required to implement procedures written by doctors but they too are health care professionals. That step has been taken further by the registration of paramedics under the Health Practitioner Regulation National Law.

With respect to my professional brethren part of the reason this case got to the High Court may have been the way the lawyers ran it. Queensland’s case was that Ms Masson was not at risk of ‘imminent arrest’ as all three criteria (GCS < 12, Bradycardia and absent pulses) were not present and therefore adrenaline was not an option. That is the State itself tried to treat the CPM as proscriptive and this was the subject of criticism by Kiefel CJ, Bell and Keane JJ at [79] quoted above.  With that ‘case theory’ it is not surprising that in evidence Mr Peters said that he was ‘prohibited’ from giving adrenaline.

The trial judge accepted that Mr Peters used the word ‘prohibited’ but he did not think that at the time of treating, Mr Peters really believed that he was not allowed to use the drug, just that given her presentation it was contra-indicated. The Court of Appeal took Mr Peters’ use of the word ‘prohibited’ as evidence that he did not ‘consider’ adrenaline as he was not allowed to.

Nettle and Gordon JJ said (at [111]-[112])

Possibly, if Mr Peters had been a judge or a lawyer or someone else whose education and experience has more to do with semasiology than the applied science of critical emergency care, he might have chosen an expression such as “not recommended” or “not appropriate”. But it is neither surprising nor at all unlikely that a paramedic whose day to-day business is one of making life and death decisions should conceive and speak of a “not recommended” or “not appropriate” course of initial treatment as one that is “not permitted”. Common sense and ordinary experience dictate that, just as a paramedic’s initial treatment must be immediate and unhesitating, a paramedic is likely to be inclined to conceive and speak of actions in perfunctory and unqualified terms. Of course, exceptionally, such a person might be so particular in his or her choice of language as to convey that, by stating that something is “not permitted”, he or she means that all choice is excluded. But whether that was the case here could only be decided by seeing and hearing the witness give his oral evidence.

The oft unspoken reality that lay witness statements are liable to be workshopped, amended and settled by lawyers, the risk that lay and, therefore, understandably deferential witnesses do not quibble with many of the changes made by lawyers in the process – because the changes do not appear to many lay witnesses necessarily to alter the meaning of what they intended to convey – and the danger that, when such changes are later subjected to a curial analysis of the kind undertaken in this matter, they are found to be productive of a different meaning from that which the witness intended, means that the approach of basing decisions on the ipsissima verba of civil litigation lay witness statements is highly problematic. It is the oral evidence of the witness, and usually, therefore, the trial judge’s assessment of it, that is of paramount importance.

What was said in a written statement, 9 years after the event and no doubt ‘workshopped’ by lawyers was not to be preferred to the oral evidence of what actually happened when it was clear that Mr Peters did ‘consider’ adrenaline and ruled it out.

Conclusion

One cannot get over the tragedy here. Ms Masson had an asthma attack in 2002. She lived in a persistent vegetative state until her death in 2016. In 2020 a court decides that the treating paramedic was not negligent. I just cannot imagine what that has been like for the Masson family or for Mr Peters and his colleagues and this author extends his sympathy to all involved.

From a distance however this case is a step forward in the growing field of paramedicine and paramedic professionalism. Paramedics are not only expected to make clinical decisions is it is recognised that they are trained and capable of making those decisions with due recognition for the circumstances that are unique to paramedic practice.

Categories: Researchers

Liability for car accident during evacuation

Michael Eburn: Australian Emergency Law - 11 August, 2020 - 15:26

Today’s question relates to collateral damage when evacuating a building. The scenario I’m asked to consider:

… assumes that a premises has good processes, planning and training in place for fire/evacuation. They have an emergency incident that requires patrons at a hotel to be evacuated away from their primary evac area (a carpark) to the secondary area which is near a roadway. They are conducting a full evacuation of the entire premises, typically evacuating approx 100 people with about a dozen staff to assist. The full evacuation of the building is being conducted because of an actual fire or real possibility of a fire being present and they have deemed that it is safer for all patrons to be removed from the danger. They are directing people to that secondary area because the fire is blocking safe egress to their primary area.

When evacuating to their secondary area a person is hit by a car. Could they be at all liable for the persons injuries as they were the ones directing the person to that area?

The problem with predicting answers to questions like this is that it always depends on ‘all the circumstances’ and one can never give a guaranteed answer; but even with that disclaimer the answer is most likely to be ‘no’.

First the scenario says the secondary area is ‘near’ (not across) the road.  If it’s near the road I fail to see how there could be any suggestion of liability if the person steps off the road into the path of a car. I cannot imagine how that could be the fault of the hotel or its staff.

If the secondary area is across the road then there would be a question of whether that was a resonable area to designate as a secondary area and that would turn on what alternatives may have been available and what size of road it is. It’s a 6 lane divided road, asking people to cross the road may be negligent, but assume it’s a 2 lane (one in each direction ) suburban street.

With a fire in the building and/or people evacuating it may be prudent, if resources permitted, to have a warden in a high-viz vest shepherding people across the road and/or warning drivers not only of the fact that there are pedestrians on the road but also that there’s a fire in a building on the side of the road (and no, you don’t have to be a ‘traffic controller’ or the like; waving down a driver and saying ‘can you just wait here there’s a fire in that building’ is not unlawful (see my comment after the post Assisting NSW police with road closures (January 7, 2014 where I said:

Here’s an example from 1880, Ned Kelly’s holding the populace of Glenrowan when one man escapes and flags down the train carrying police. Did he have any authority to stop the train? No, but it can’t be suggested it was illegal to flag down the train to tell the driver and the police that the tracks had been ripped up and Kelly was hold up in Glenrowan.

So you’re driving along the freeway and you see a fire and you chose to stop and warn others; no authority is required. Of course the other driver’s commit no offence if they ignore you and travel past.

But, putting that issue to one side, directing a person to an evacuation centre across the road is not directing them to run across the road without looking and, most fundamentally, a driver has an obligation to look out for and not run over pedestrians. Everyone has a duty here and the fact that people are being evacuated does not remove their obligation to take reasonable care of their own safety and the duty of a car driver on the road not to hit them.

There is then the practical issue that compensation for car accidents is run of the mill day to day grind for many law firms. They know how to do it. People injured in car accidents recover under the state or territory compulsory third party insurance scheme. Every car, registered or not, is covered by the scheme. The scheme sets out how claims are made, what compensation is payable without proof of fault and what claims require proof of fault. They set up an insurer who in turn is very familiar with the process. Why would anyone look to any other party when the driver can be identified, and the claim process is straight forward?

An injured person may want to find another defendant to try and avoid limits in personal injuries compensation claims but then they face limits under other laws such as the various Civil Liability reforms of the early 1980’s.  The likely person who might raise it would be the CTP insurer that may have to pay out and they may try to find another defendant to share the cost. But losses are apportioned so even if someone said ‘we’ll the staff were 10% responsible’ that’s not a lot of money for a lot of effort to recover it.

On the other hand if the fire itself was negligently caused, a plaintiff may establish that there injuries were due to, and part of, the fire. In that case they could sue the premises for their negligence which may, depending on the jurisdiction, be worth more than, but be a more complicated action, than an action against a car driver.

Could the staff be liable? Not a chance – see Vicarious liability for the actions of fire wardens (March 5, 2016).

Conclusion

As always, the determination of liability depends on who did what and was what they did ‘reasonable’ in all the circumstances. In the scenario described the person who is most likely to be held to have caused the accident will be the car driver. Drivers are expected to look out for hazards, including surprises such as people on the road and buildings on fire on the side of the road. Equally pedestrians are expected to take care of their own well being which (depending on the size of the fire) may include not running in front of oncoming traffic.  The critical question for the staff managing the evacuation is whether there had been any planning, if the secondary evacuation centre was across the road, on how to warn drivers that there was an evacuation in place.

The risk of liability in the circumstances described would be almost zero (but never say never).

Categories: Researchers

Emergency service volunteers as whistleblowers

Michael Eburn: Australian Emergency Law - 10 August, 2020 - 12:20

Today’s question is:

Are employees and volunteer members of Australian emergency services agencies protected by whistleblower legislation when reporting misconduct in the organisation.

The answer does depend on the jurisdiction so for the sake of an answer I’ll refer to the Public Interest Disclosures Act 1994 (NSW). The Act applies to ‘public officials’ that is ‘an individual who is an employee of or otherwise in the service of a public authority’ (s 4A). Specifically the definition of a public official includes (s 4A(2)):

(a)        a volunteer rural fire fighter who is an officer or other member of a rural fire brigade under the Rural Fires Act 1997 ,

(b)       a volunteer officer or volunteer member of an SES unit (within the meaning of the State Emergency Service Act 1989),

So yes, the legislation does apply to ‘employees and volunteer members of [NSW] emergency services agencies’.

It is not every disclosure of reprehensible conduct that is protected. The Act is (s 3) intended to (emphasis added):

… facilitate the disclosure, in the public interest, of corrupt conduct, maladministration, serious and substantial waste, government information contravention and local government pecuniary interest contravention in the public sector

Protection under the Act depends on the ‘public official’ going through a number of steps set out in s 8:

(1) To be protected by this Act, a disclosure must be made by a public official–

(a) to an investigating authority, or

(b) to the principal officer of a public authority or investigating authority or officer who constitutes a public authority, or

(c) to–

(i) another officer of the public authority or investigating authority to which the public official belongs, or

(ii) an officer of the public authority or investigating authority to which the disclosure relates,

in accordance with any procedure established by the authority concerned for the reporting of allegations of corrupt conduct, maladministration, serious and substantial waste of public money or government information contravention by that authority or any of its officers, or

(c1) to the principal officer of the Department of Parliamentary Services, the Department of the Legislative Assembly or the Department of the Legislative Council about the conduct of a member of Parliament, or

(d) to a member of Parliament or to a journalist.

A disclosure pursuant to s 8(1)(d), ie to a journalist or a member of parliament is only protected if

(1) …

(2) The public official making the disclosure must have already made substantially the same disclosure to an investigating authority, public authority or officer of a public authority in accordance with another provision of this Part.

(3) The investigating authority, public authority or officer to whom the disclosure was made or, if the matter was referred, the investigating authority, public authority or officer to whom the matter was referred–

(a) must have decided not to investigate the matter, or

(b) must have decided to investigate the matter but not completed the investigation within 6 months of the original disclosure being made, or

(c) must have investigated the matter but not recommended the taking of any action in respect of the matter, or

(d) must have failed to notify the person making the disclosure, within 6 months of the disclosure being made, of whether or not the matter is to be investigated.

(4) The public official must have reasonable grounds for believing that the disclosure is substantially true.

(5) The disclosure must be substantially true.

The protection provided by the Act is that it is an offence for a person to take detrimental action against another for making the disclosure.  One might question how useful this protection actually is. Former NSW SES Commissioner Murray Kear was alleged to have committed an offence of taking detrimental action against a whistleblower. He was acquitted of that offence but the whole process cost both him and Deputy Commissioner McCarthy their jobs with the SES (see NSW SES Commissioner found to have engaged in corrupt conduct (May 29, 2014); noting that report that the Commissioner was ‘found’ to have engaged in corrupt conduct was reporting on the outcome of the ICAC inquiry, not the subsequent prosecution where, as I say, former Commissioner Kear was acquitted of the criminal allegations; see the Postscript to the post Accessing a judge or magistrate’s reasons for decision (November 18, 2016). I note also that the ICAC inquiry has been subject to significant criticism – see for example Margaret Cunneen (2016), ‘Great Harm to Innocent People An ICAC storyProceedings of the Samuel Griffith Society, Volume 28, p. 86; even so the finding stands and is still reported by the ICAC.)

Even with whistleblower legislation in place, one would need to stop and think carefully whether all the requirements of the act have been complied with and whether the ‘protection’ offered by the Act is truly sufficient in light of potential costs.

Conclusion

Yes volunteers and employees of NSW emergency services can rely on the Public Interest Disclosures Act 1994 (NSW) if they want to report ‘corrupt conduct, maladministration, serious and substantial waste, government information contravention [or] local government pecuniary interest contravention’.  Disclosure needs to be to an agency established to investigate such matters (eg the Ombudsman or the ICAC). If they want to ‘go public’ they need to first report the matter via the agencies internal procedures or to an external investigating authority and then ensure the requirements under s 8 have been met.

I was asked about Australian emergency services. To answer that would require consideration legislation in each state and territory. I have taken NSW as an example but would expect there would be similar answers in each of the other jurisdictions – but for a full answer see :

  • Public Interest Disclosure Act 2013 (Cth);
  • Public Interest Disclosure Act 2012 (ACT);
  • Independent Commissioner Against Corruption Act 2017 (NT);
  • Public Interest Disclosure Act 2010 (Qld);
  • Public Interest Disclosure Act 2018 (SA);
  • Public Interest Disclosures Act 2002 (Tas);
  • Public Interest Disclosures Act 2012 (Vic); or
  • Public Interest Disclosure Act 2003 (WA).
Categories: Researchers

Review of emergency management arrangements on Norfolk Island

Michael Eburn: Australian Emergency Law - 9 August, 2020 - 11:13

For those that may be interested, the Department of Infrastructure has commissioned a review of emergency management arrangements for Norfolk Island. More information can be found here: Review of Norfolk Island’s emergency management governance arrangements

 

Categories: Researchers

Victoria’s workplace manslaughter laws and volunteers

Michael Eburn: Australian Emergency Law - 9 August, 2020 - 11:07

Today’s question is asking me to

… shed some light on the new Workplace manslaughter laws in Victoria, and how (if they do) they could potentially(?) affect Volunteers Managers (Captains, Lieutenants, Incident controller etc) with in CFA or other volunteer organisations in Vic?

I was provided with a copy of a messages that says:

As some of you may be aware there have been recent changes in Worksafe laws where managers can be held accountable for workplace injury and the like and that all CFA Stations are recognised as a workplace.

Unfortunately, the message does not say which ‘changes’ they are referring to.  The only ‘recent’ changes have been made by the Workplace Safety Legislation Amendment (Workplace Manslaughter and Other Matters) Act 2019 (Vic).

Victoria has not adopted the model Work Health and Safety Act 2011. The relevant Act in Victoria is the Occupational Health and Safety Act 2004 (Vic) (‘the OHS Act’).  The OHS Act imposes duties on employers (ss 21-23) and employees (s 25). The Act doesnot refer to ‘managers’. It does refer to officers. An officer of a ‘body corporate, unincorporated body or association or partnership’ is defined by the Corporations Act 2001 (Cth) s 9 (see OHS Act s 5, definition of ‘officer’). The relevant definition is:

“officer” of a corporation means:

(a) a director or secretary of the corporation; or

(b) a person:

(i)  who makes, or participates in making, decisions that affect the whole, or a substantial part, of the business of the corporation; or

(ii)  who has the capacity to affect significantly the corporation’s financial standing; or

(iii)  in accordance with whose instructions or wishes the directors of the corporation are accustomed to act (excluding advice given by the person in the proper performance of functions attaching to the person’s professional capacity or their business relationship with the directors or the corporation); or

 (c)  a receiver, or receiver and manager, of the property of the corporation; or

(d)  an administrator of the corporation; or

(e)  an administrator of a deed of company arrangement executed by the corporation; or

(f)  a liquidator of the corporation; or

(g)  a trustee or other person administering a compromise or arrangement made between the corporation and someone else.

“officer” of an entity that is neither an individual nor a corporation means:

(a)  a partner in the partnership if the entity is a partnership; or

(b)  an office holder of the unincorporated association if the entity is an unincorporated association; or

(c)  a person:

 (i)  who makes, or participates in making, decisions that affect the whole, or a substantial part, of the business of the entity; or

 (ii)  who has the capacity to affect significantly the entity’s financial standing.

A brigade captain may be an ‘officer’ in the sense that he or she is not one of the ‘other ranks’ but he or she is not an officer of the CFA.

Volunteers are not employees and the CFA and other volunteer organisations are not the employer of volunteers. The employer’s duty to people who are not employees (eg volunteers) is a duty to ‘ensure, so far as is reasonably practicable, that persons other than employees of the employer are not exposed to risks to their health or safety arising from the conduct of the undertaking of the employer’ (s 23).

For the purposes of the OHS Act, a workplace is ‘a place, whether or not in a building or structure, where employees or self‑employed persons work’ (s 5). To the extent that employees of the CFA work at a CFA station it is their workplace, but it is not the workplace of volunteers. The employees may be responsible for ensuring that the work of the CFA does not pose an unreasonable risk to the safety of volunteers, but it does not impose equivalent obligation on volunteers.

Volunteers are explicitly excluded from relevant OHS offences. From 1 July 2020 there is a new offence of workplace manslaughter. That offence cannot be committed by a volunteer. Section 39G says (emphasis added):

(1)     A person who is not a volunteer must not engage in conduct that—

(a)        is negligent; and

(b)       constitutes a breach of an applicable duty that the person owes to another person; and

(c)        causes the death of that other person.

Penalty:           Imprisonment for 25 years for a natural person;

100 000 penalty units for a body corporate.

(2)        A person who is an officer of an applicable entity, and who is not a volunteer, must not engage in conduct that—

(a)        is negligent; and

(b)       constitutes a breach of an applicable duty that the entity owes to another person; and

(c)        causes the death of that other person.

Penalty:           Imprisonment for 25 years.

Other offences that may be relevant, when one talks about ‘managers’ are set out in s 144 ‘Liability of officers of bodies corporate’ and s 145 ‘Liability of officers of partnerships and unincorporated bodies or associations.’ Neither of those offences can be committed by volunteers (see ss 144(5) and 145(5)).

Discussion

I don’t know what the author of the message who said ‘…there have been recent changes in Worksafe laws where managers can be held accountable for workplace injury’ had in mind. That employees have duties under the OHS Act is not new.

The Workplace manslaughter laws and the obligations upon officers of organisations specifically exempt volunteers. It follows that ‘the new Workplace manslaughter laws in Victoria’ do not apply to volunteers as potential defendants.

Categories: Researchers

Cooperation between Victoria’s fire services

Michael Eburn: Australian Emergency Law - 8 August, 2020 - 19:45

Today’s correspondent asks for

… advice in relation to who has control of resources in fire related incidents in Victoria. With the introduction of Fire Rescue Victoria, there is some confusion among responders as who is to have control. As I understand it, where CFA now responds into an FRV area, FRV are the “combat authority,” thus have overall command of the fire and vice versa. An example of where some confusion is experienced is below. FRV arrives to a fire incident inside a CFA area. FRV begins to combat the incident and makes a call to firecom to cancel CFA appliances on route. CFA appliances, on the basis that they are the “combat authority” continue to the incident. Does one fire authority have the ability to cancel the other when outside of their boundary/jurisdiction?

Isn’t this really about respect and working together rather than the law?

The relevant acts will be the Fire Rescue Victoria Act 1958 (Vic), the Country Fire Authority Act 1958 (Vic) and the Emergency Management Acts 1986 and 2013 (Vic).

Whereas there was the Metropolitan Fire Brigade and the Country Fire Authority, now there is Fire and Rescue Victoria operating across Victoria with paid firefighters, and the CFA with volunteer firefighters.  Schedule 2 of the Fire Rescue Victoria Act 1958 says:

The Fire Rescue Victoria fire district consists of the land delineated and coloured green on the plan lodged in the Central Plan Office and numbered LEGL./17-371.

That is rather unhelpful without access to that plan but helpfully the CFA publishes the maps on its website see https://www.cfa.vic.gov.au/about/cfa-and-frv-boundaries.

Fire Rescue Victoria boundaries now include the previous MFB boundaries as well as some outer urban areas and larger regional centres across Victoria. Formerly there were integrated stations that had both paid and volunteer CFA firefighters. Now the paid firefighters are employees of Fire Rescue Victoria. The CFA says:

CFA volunteers serving at former integrated stations in those outer urban areas and larger regional centres continue to respond to emergencies in their area as part of Victoria’s emergency response arrangements. In an emergency all agencies work together as one. CFA and FRV employees also work in the State Control Centre and Regional Control Centres.

It is a function of Fire Rescue Victoria to, amongst other things, ‘ provide for fire suppression and fire prevention services in the Fire Rescue Victoria fire district’ (s 7(1)(a)).

The control of the prevention and suppression of fires in the country area of Victoria is, vested in the Country Fire Authority (Country Fire Authority Act 1958 (Vic) ss 14 and 20).

Both Acts (Fire Rescue Victoria Act 1958 (Vic) s 2A; Country Fire Authority Act 1958 (Vic) s 2) say:

It is the intention of the Parliament that Fire Rescue Victoria and the Country Fire Authority establish processes that will ensure that they—

(a) promote collaboration and coordination between fire services agencies to best meet the safety needs of the community; and

(b) recognise the importance of maintaining capacity to respond to peaks in demand for fire services within fire services agencies; and

(c) recognise and value the contribution of volunteer brigades; and

(d) recognise that both volunteer firefighters and career firefighters are vital to delivering safe and sustainable fire services; and

(e) maintain the ability of fire services agencies to respond to critical incidents, to prevent and suppress fires and to protect life and property.

Equally both agencies (Country Fire Authority Act 1958 (Vic) s 6B; Fire Rescue Victoria Act 1958 (Vic) s 7A) have the objective to:

(a) contribute to a whole of sector approach to emergency management;

(b) promote a culture within the emergency management sector of community focus,

The Emergency Management Manual Victoria, part 7 defines the roles for the various emergency services. It says that the Country Fire Authority (p. 7-36) is the:

Control Agency for:

  • fire on private land within Country Area Victoria
  • accidents involving gas leakage, hazardous materials, lifts, or scaffolding and amusement structures, and building collapse
  • fire and explosion incidents involving aircraft and boilers and pressure vessels
  • rescue incidents involving rail, aircraft and industrial, road, and building structures.

Fire Rescue Victoria (p. 7-70) is the:

Control agency for:

  • fire in the Fire Rescue Victoria Fire District (including the Port of Melbourne and waters as defined in the Port Management Act 1995)
  • accidents involving gas leakage, hazardous materials, lifts, cranes or scaffolding and amusement structures, and building collapse
  • fire and explosion incidents involving aircraft and boilers and pressure vessels
  • rescue incidents involving rail, aircraft and industrial, road, trench and tunnel., and building structures.

A control agency is (p. 7-1) the ‘agency identified … [as] the primary agency responsible for responding to a specified type of emergency’ (see also Emergency Management Act 2013 (Vic) s 54). But an agency responsible for responding to an event can respond its own resources or those of another agency. Think of Victoria SES calling on the CFA to assist with calls for assistance in a flood or storm.

Discussion

The scenario I’m given is:

FRV arrives to a fire incident inside a CFA area. FRV begins to combat the incident and makes a call to firecom to cancel CFA appliances on route. CFA appliances, on the basis that they are the “combat authority” continue to the incident. Does one fire authority have the ability to cancel the other when outside of their boundary/jurisdiction?

That Fire Rescue Victoria responds into a ‘CFA area’ is appropriate and consistent with the above. The CFA may be the control agency but responding FRV can be part of its function of ‘responding’ to the fire. And the community want and need a fire brigade without regard to which brigade. This will be particularly relevant where the FRV staff are on station and have a much faster response time than the CFA that has to wait for volunteers to first get to the station and then turn out.

If FRV begin their work and either extinguish the fire or realise that they have all the resources that they need to manage the emergency. They should communicate that to FIreCom (in the say way they need to communicate if more resources are required) as those coordinating the response need to know what resources are required. Assume the fire is actually extinguished, advising FireCom of that may well mean they ‘call off’ the CFA volunteers, they don’t need to respond and won’t have anything to do when they get there.

Subject to any SOPs between FRV and the CFA and standards set by the Emergency Management Commissioner (Emergency Management Act 2013 (Vic) Part 4) my view would be no, FRV cannot direct the CFA appliances not to attend, but they can advise the ComCen (and in effect the CFA) that the resources are not required. The CFA can reasonably and consistently with the directions to collaborate and cooperate with each, call off their brigade. The call to FireCom is not an order from the local brigade captain to cancel the CFA, it is information to FireCom and they make the decision. But to insist that the CFA volunteers continue to an event where there is nothing useful to do would seem to be contrary to the intention of the Parliament and the objectives of the services, set out above.

Conclusion

There is no legal authority for one fire service to cancel the other when outside of their boundary/jurisdiction but they can certainly advise the other that the situation is under control and further resources are not required. Relevant coordinators can call off a responding appliance that is not required. That is not a matter of law but a matter of working with ‘collaboration and coordination between fire services agencies to best meet the safety needs of the community’.

Categories: Researchers

The Commissioner and WA SES units

Michael Eburn: Australian Emergency Law - 8 August, 2020 - 17:30

Today’s question comes from WA and is about the SES. In an earlier post – BA for a West Australian bush fire brigade? (August 6, 2020) I described the WA law relating to fire brigades as a ‘mismatch’ with the Fire and Emergency Services Act 1998 (WA) superimposed over the old and still in force Bush Fires Act 1954 (WA)) and the Fire Brigades Act 1942 (WA).  Like retrofitting solar panels or central heating to an old house, it may work but it’s better to install these things from the start.

The situation is different for WA SES. There is not an SES Act that has to be read with the Fire and Emergency Services Act 1998 (WA)  (‘the FES Act’) but that still doesn’t make the position of the SES clear.  With that in mind, I’m asked to

… provide an opinion on the FES Commissioners power under the FES Act over volunteer SES Units. Note that u nits are incorporated in WA.

This is really affecting the volunteers here as DFES is taking a strong ownership stand over the State Emergency Service. Note that there are no SES staff at all in WA now. The SES is funded through the ESL Local Government Grants Scheme and administrated by local government.

The provisions relating to the SES are set out in Part 3A. The first section of that part, s 18A described the functions of the Commissioner, not the SES. The Commissioner’s functions are:

(a)        to manage the provision of emergency services in relation to natural disasters; and

(b)       to provide for the carrying out of search and rescue operations; and

(c)        to promote the safety of life and property from natural disasters, accidents and other events that may require search and rescue operations to be carried out; and

(d)       to provide for the carrying out of assistance operations; and

(e)        to have general responsibility for all SES Units.

In order to fulfil those functions, the Commissioner may ‘provide equipment and training to SES Units’ (s 18B(2)). SES units are ‘approved’ rather than established by the Commissioner. Section 18C(1) says:

The FES Commissioner may, by notice in the Gazette, approve as an SES Unit any group of persons, however constituted and whether incorporated or not, that the FES Commissioner considers to be appropriate for approval as an SES Unit.

An SES unit may (s 18E):

(a)        acquire and maintain equipment; and

(b)       carry out training activities and exercises; and

(c)        carry out demonstrations and other public education activities; and

(d)       carry out fundraising and promotional activities; and

(e)        organise and participate in competitions; and

(f)        carry out any activities that are reasonably incidental to the performance of its functions (such as travelling, providing communications systems and providing meals); and

(g)        carry out any other activities that are, or are in a class of activities that is, prescribed.

What follows is that there is no legal entity that is the WA SES. The Commissioner has functions to perform (s 18A) and may do that by approving groups as SES units. Those units are to assist the Commissioner and in return the Commissioner can provide them with training and equipment. The Commissioner could choose other ways to perform the functions set out in s 18A.

A situation that could arise, and one might infer is intended by the Act is that a group of people get together and create the Kickatinalong SES unit. They could incorporate their group under the Associations Incorporation Act 2015 (WA). As an incorporated association it would be a separate legal entity capable of suing and being sued. The management committee of the association would be responsible for and required to manage the organisation in accordance with its rules and the Act (Associations Incorporation Act 2015 (WA) s 38). The Incorporated unit as a separate legal entity could purchase equipment which it would own.  The management committee could approach the FES Commissioner who might consider that the objects and purposes of the association mean that they can assist the Commissioner to meet his or her obligations under s 18A of the FES Act. The Commissioner could then approve the Association as an SES unit (s 18C) and give equipment to the unit to help them to function.  Nowhere in any of that is there any power in the Commissioner to direct the SES unit how it is to function.  The SES unit could do all those things listed in s 18E but it could do those things as an incorporated association in any event.

There is nothing in the FES Act that says that the Commissioner has any responsibility for managing an SES unit. The closest is s 18A(e) which says that one of the Commissioner’s functions is ‘to have general responsibility for all SES Units’ – whatever ‘general responsibility’ (as opposed to the specific responsibility of the management committee if it’s an incorporated association) might mean.

The Commissioner can however give directions and set standards for SES units as a condition of registration. That is if a unit failed to follow the Commissioner’s directions he or she may determine ‘that it is no longer appropriate for the Unit to be approved’ and the Commissioner could cancel the approval to operate as an SES unit (s 18C(2)). Loss of approval would mean a loss of FES provided equipment and training (s 18B) and any money that comes via the ESL and DFES. Further if the unit were no longer approved as an SES unit, the members would lose the protection provided by Part 6B ‘Compensation for injury, loss or damage’ and s 37 ‘Protection from personal and vicarious liability’.  The unit and the members could no longer use the name State Emergency Service or SES or any logo that suggested they were an SES unit (s 38B). They are ‘big sticks’ that the Commissioner can wield to try and create ‘an SES’ where units are compelled to cooperate with the Commissioner’s ‘strong ownership stand’.

Conclusion

The FES Act does not create a Western Australian State Emergency Service. Rather it requires the Commissioner to perform certain functions and to do that he or she can ‘approve’ SES units – there is in effect (if I’ve counted them properly) 66 separate SES units each of which could have their own relationship with the Commissioner rather than a single service. The legislation gives the commissioner no explicit power to manage or give direction to the unit.

The ‘Commissioners power under the FES Act over volunteer SES Units’ is an undefined power to have ‘general responsibility for all SES Units’ coupled with the de facto power to require compliance with the Commissioner’s standards and directions on the basis that if a unit does not comply then the Commissioner may determine ‘that it is no longer appropriate for the Unit to be approved’. The loss of approval would in effect mean that, even an incorporated association, could no longer function as an SES unit and would lose its reason to exist.

Categories: Researchers

Paramedics returning to practice

Michael Eburn: Australian Emergency Law - 8 August, 2020 - 16:15

Today’s correspondent has

… two questions that have been posed by myself and work colleagues, that we have not been able to answer. We were wondering if you could help?

My first question is how would a former degree qualified paramedic return to service? That is if a paramedic was previously employed by a state ambulance authority and then left the service for several years, would they then need to complete another degree to able to enter the profession as a graduate and gain registration as a paramedic? It appears that several Tertiary courses exist for former registered nurses and midwives to renter those respective field after a long absence, but no such course as yet exists for Paramedicine.

My second question relates to workplace investigations and finding of misconduct. Would a former nonregistered paramedic whom completes re-training to meet AHPRA ‘s current standard of registration be obligated to report any disciplinary action taken or investigations completed by a former employer when they were practicing as a non -registered paramedic. For example, would the former paramedics employed by Ambulance Victoria whom resigned amid the investigation for fentanyl appropriation and trafficking in 2017 be able to apply for registration now?

The first question

To be eligible for registration a person must hold an approved qualification. The question says that the person seeking to return to practice is a degree qualified paramedic so I will assume that they meet this first criteria.

Second they must meet the ‘Registration Standard: Recency of Practice. That standard says that to be eligible for registration the applicant must have completed:

… a minimum of:

  1. 450 hours of practice in the previous three years, or
  2. 150 hours of practice in the previous 12 months, or
  3. 750 hours of practice in the previous five years with no continuous absence from practice of greater than two years…

You don’t need to meet this registration standard if you are a recent graduate applying for registration for the first time and it is within two years of finishing your qualification.

I will assume that if the applicant ‘then left the service for several years’ they are not a ‘recent graduate … within two years of finishing…’ their degree. In that case they have to meet the recency of practice standard. If they cannot they would have to undertake supervised practice in accordance with the Supervised practice framework for paramedics – Interim until they could meet the recency standard.

The Registration Standard: Continuing Professional Development applies to registered paramedics. Accordingly a person who is an applicant for registration does not have to have meet the standard of ‘30 hours of CPD each year’ prior to their return to registration. But, prior to registration and certainly prior to resuming practice they would, as a professional, be expected to consider whether their skills and knowledge are current and take steps to ensure that they are. That is where the sort of qualifications for others is relevant. One doesn’t need to ‘requalify’ but if it’s been a long time since practice, refresher continuing study may be useful. That may be a market the paramedic schools will enter if they have not done so already. If they are not offering ‘refresher’ courses for paramedics wishing to return to the profession, then the applicant will have to find that sort of training elsewhere (and that is in part what the recency of practice requirements are meant to address).

Conclusion one

A person holding a recognised qualification for registration as a paramedic but returning to the profession after ‘several years’ would not have to ‘complete another degree to able to enter the profession as a graduate and gain registration as a paramedic’ rather he or she would have to find a way to meet and demonstrate the recency of practice requirements and they could then apply for registration.

Question two

The primary aim of professional registration is to provide public confidence in the profession by, inter alia, ensuring only fit and proper persons are registered. The Health Practitioner Regulation National Law s 55 (set out in the schedule to the Health Practitioner Regulation National Law Act 2009 (Qld) and adopted in Victoria by the Health Practitioner Regulation National Law (Victoria) Act 2009 (Vic)) says:

A National Board may decide an individual is not a suitable person to hold general registration in a health profession if—

(a)        in the Board’s opinion, the individual has an impairment that would detrimentally affect the individual’s capacity to practise the profession to such an extent that it would or may place the safety of the public at risk; or

(b)       having regard to the individual’s criminal history to the extent that is relevant to the individual’s practice of the profession, the individual is not, in the Board’s opinion, an appropriate person to practise the profession or it is not in the public interest for the individual to practise the profession; or

(c)        the individual has previously been registered under a relevant law and during the period of that registration proceedings under Part 8 , or proceedings that substantially correspond to proceedings under Part 8 , were started against the individual but not finalised; or

(d)       in the Board’s opinion, the individual’s competency in speaking or otherwise communicating in English is not sufficient for the individual to practise the profession; or

(e)        the individual’s registration (however described) in the health profession in a jurisdiction that is not a participating jurisdiction, whether in Australia or elsewhere, is currently suspended or cancelled on a ground for which an adjudication body could suspend or cancel a health practitioner’s registration in Australia; or

(f)        the nature, extent, period and recency of any previous practice of the profession is not sufficient to meet the requirements specified in an approved registration standard relevant to general registration in the profession; or

(g)       the individual fails to meet any other requirement in an approved registration standard for the profession about the suitability of individuals to be registered in the profession or to competently and safely practise the profession; or

(h)       in the Board’s opinion, the individual is for any other reason—

(i)        not a fit and proper person for general registration in the profession; or

(ii)       unable to practise the profession competently and safely.

The scenario I’m asked to consider is a ‘former paramedic employed by Ambulance Victoria who resigned amid the investigation for fentanyl appropriation and trafficking in 2017…’ I would suggest that this prior history would be relevant to the Board’s consideration under s 55 and therefore would have to be disclosed.

If I was the board I would want to know whether the person took the drugs for private use in which case did they have ‘an impairment that would detrimentally affect the individual’s capacity to practise the profession to such an extent that it would or may place the safety of the public at risk’? If they did have that impairment, what have they done between then and now to address their drug usage such that the Board could be satisfied that the impairment no longer existed or was being managed in a way such that they did not pose a risk to public safety.

If they were convicted of a criminal offence the Board would have to consider and apply the Criminal history registration standard.

If they were stealing drugs either for personal use or to sell for profit or to supply to others it would raise questions about their conduct then, and since and whether in all the circumstances they are or are ‘not a fit and proper person for general registration in the profession’ or ‘unable to practise the profession competently and safely’.

Can they apply? Of course, an application is just that. It is asking the board to consider those matters and a prudent applicant would take steps to ensure that they put before the Board evidence of what they had done since to address whatever caused the problem in the first place. There is nothing to stop them applying, whether their application would be approved would be a matter for the Board. I think one can be absolutely sure however that if one had been subject to investigation ‘for fentanyl appropriation and trafficking’ and failed to disclose that when making an application, that failure to make the disclosure would be evidence that the applicant was not a fit and proper person to practice the profession even if the investigation was not finalised because of their resignation and even if they denied, and continue to deny, any wrongdoing.

Conclusion two

‘Would the former paramedics employed by Ambulance Victoria whom resigned amid the investigation for fentanyl appropriation and trafficking in 2017 be able to apply for registration now?’  Yes they could apply. They would have to disclose that they had been subject to that investigation and it would be up to the Board to determine whether, given the circumstances then and the time of their application, they are a fit and proper person for registration.

That answer applies to the specific scenario and generally where there has been a ‘workplace investigations and finding of misconduct’. An applicant for registration (whether previously registered or not) would be obliged ‘to report any disciplinary action taken or investigations completed by a former employer’ relating to their previous practice.

Categories: Researchers

BA for a West Australian bush fire brigade?

Michael Eburn: Australian Emergency Law - 6 August, 2020 - 13:06

Today’s correspondent raises:

One issue that has always been debated without any apparent legitimate legal opinion in WA is whether Volunteer Bush Fire Brigades (Local Government not the State Government managed VFRS and VFES) are able to use Breathing Apparatus (BA).

The first specific question is if there is any legal direction either allowing or disallowing Bush Fire Brigades to have and use BA.

The second is, given the State Government Department of Fire and Emergency Services (DFES) has total control of the administration of the annually collected Emergency Services Levy (ESL) and refuses to pay for BA for volunteer bush fire brigades to have BA, is there any legal impediment to a brigade (or its Local Government) buying its own BA and using it lawfully?

So as far as I can see there is nothing in the general law of WA that would pose a ‘legal impediment to a brigade (or its Local Government) buying its own BA and using it lawfully’ provided they can use it safely.

The Bush Fires Act 1954 (WA) s 41 says:

For the purpose of carrying out normal brigade activities a local government may, in accordance with its local laws made for the purpose, establish and maintain one or more bush fire brigades and may, in accordance with those local laws, equip each bush fire brigade so established with appliances, equipment and apparatus.

Not surprisingly the Act does not specify what ‘appliances, equipment and apparatus’ the brigade must, or must not be supplied with.

There is no specific law that says who can and who cannot have and use BA. I could buy BA for myself if I wanted it. Like all items of kit, the overriding obligation upon an employer (DFES or the relevant local government) is to ensure that employees and others are not exposed to undue risk to health and safety (Occupational Safety and Health Act 1984 (WA)). So if a local government wanted to issue BA to its brigades (established under the Bush Fires Act 1954 (WA)) they would have to make sure firefighters were trained and the use of the BA could be supported (equipment maintained etc).

That does not however get to the specifics of whether the DFES or the FES Commissioner has issued a ‘direction either allowing or disallowing Bush Fire Brigades to have and use BA’. The FES Commissioner is ‘responsible for the administration’ of the Bush Fires Act (1954 (WA)) s 10). Even so I cannot see any specific power in either the Bush Fires Act nor the Fire and Emergency Services Act 1998 (WA) that would allow DFES or the Commissioner to direct what equipment can or cannot be purchased, but there must be some standards in firefighting. One would not want a local government to buy for its brigade an appliance that could not be used with other appliances and equipment held by all the other brigades. It is not clear to me (given WA’s legislation is a mismatch with old legislation – the Bush Fires Act 1954 (WA)) and the Fire Brigades Act 1942 (WA) – still in force but amended to impose the Fire and Emergency Services Act 1998 (WA) over the top) how those standards may be set or whether DFES or the Commissioner can or do direct councils on the ‘appliances, equipment and apparatus’ that they can buy, but I infer that this must be done. I’d welcome advice from anyone in WA on if and how equipment standards for WA bush fire brigades are set.

Categories: Researchers

Damaging the neighbour’s property to access a patient

Michael Eburn: Australian Emergency Law - 6 August, 2020 - 12:21

Today’s question relates to paramedics accessing one property to rescue a person from a neighbouring property. My correspondent says:

I was curious about the legalities in terms of requiring access to private property in order to save a life. An example might be a very sick patient located somewhere in house or back yard. Paramedics are unable to simply take patient out through the front of the property due to house design or space available or something. After consultation with other paramedics, managers, police and fire rescue it is determined that the only way to get the patient out is to remove part of the fence with next door and take patient through next doors property. The neighbour says “No, you can’t come through here”. For paramedics it is ‘take the patient out through next door or sit there and watch the patient die’.

My (admittedly shaky) understanding is that in QLD, under the Ambulance Service Act 1991, authorised officers could require the next-door owners to comply to protect their patient from danger but what about NSW or VIC…

  • Would there be some sort of legal ability for emergency services to “force” access to/through private property in order to save a life?
  • Can the private property owners deny access if it means the death of a patient?
  • What are the boundaries of control a private property owner has over access to their property vs the value of a human life and taking steps needed to preserve said life?

The Ambulance Service Act 1991 (Qld) s 38 says:

(1) An authorised officer, in providing ambulance services, may take any reasonable measures—

(a) to protect persons from any danger or potential danger associated with an emergency situation; and

(b) to protect persons trapped in a vehicle, receptacle, vessel or otherwise endangered; and

(c) to protect themselves or other officers or persons from danger, potential danger or assault from other persons.

(2) Without limiting the measures that may be taken for a purpose specified in subsection (1) (a) or (b) , an authorised officer may, for that purpose—

(a) enter any premises, vehicle or vessel; and

(b) open any receptacle, using such force  as is reasonably necessary; and

(c) bring any apparatus or equipment onto premises; and

(d) remove from or otherwise deal with, any article or material in the area; and

(e) destroy (wholly or partially) or damage any premises, vehicle, vessel or receptacle; and

(f) cause the gas or electricity supply or motor or any other source of energy to any premises, vehicle, vessel or receptacle to be shut off or disconnected; and

(g) request any person to take all reasonable measures to assist the authorised officer; and

(h) administer such basic life support and advanced life support procedures as are consistent with the training and qualifications of the authorised officer.

That section would give QAS officers the power to enter via the neighbour’s property. That does not mean QAS would not have to pay for the damage – section 39 says:

The State is to indemnify every service officer against all actions, proceedings and claims in relation to—

(a)        acts done, or omitted to be done, by the officer under section 38; or

(b)       acts done, or omitted to be done, by the officer in good faith for the purposes of section 38.

A person could not look to the ambulance officer to pay for the fence, but could look to the State of Queensland. Whether the state would actually be liable to pay would depend on too many factors to consider here.

There is no equivalent to s 38 in either the Health Services Act 1997 (NSW) (dealing with NSW Ambulance) or the Ambulance Services Act 1986 (Vic) but that does not mean there are no powers. In the post The doctrine of necessity – Explained (January 31, 2017) I said:

When the damage to property is necessary to save life, greater damage may be done that would be justified “to prevent mere damage to property” (Watt v Hertfordshire County Council [1954] 2 All ER 368; See also Rigby v Chief Constable [1985] 2 All ER 985, 994).

The safety of human lives belongs to a different scale of values from the safety of property. The two are beyond comparison and the necessity for saving life has at all times been considered a proper ground for inflicting such damage as may be necessary upon another’s property. (Southport Corporation v Esso Petroleum Co Ltd [1956] AC 218, 228).

In New Zealand it was said in Dehn v Attorney General [1988] 2 NZLR 564, 580 (Tipping J):

A person may enter the land or building of another in circumstances which would otherwise amount to a trespass if he believes in good faith and upon grounds which are objectively reasonable that it is necessary to do so in order (1) to preserve human life, or (2) to prevent serious physical harm arising to the person of another, or (3) to render assistance to another after that other has suffered serious physical harm.

In 2008 the High Court of Australia (Kuru v State of New South Wales (2008) 236 CLR 1, [2008] HCA 26, [40] (Gleeson CJ, Gummow, Kirby And Hayne JJ) said:

The common law has long recognised that any person may justify what would otherwise constitute a trespass to land in cases of necessity to preserve life or property. The actions of fire fighters, police and ambulance officers will often invoke application of that principle.

Necessity will justify almost any property damage in order to save life. The cutting up of the car, the entry onto property and the destruction of property can all be justified where that conduct is necessary to save another’s life. The doctrine is not limited to professional rescuers. A person visiting their neighbour who sees that they are lying injured on the floor is as justified in breaking the door in order to render assistance as is the local ambulance or fire service.

The law still requires that any action taken under the doctrine must be reasonable, so that if the rescuer acts in a way that is not reasonable in the circumstances, they may be liable in negligence (Beckingham v Port Jackson and Manly Steamship Co (1957) SR(NSW) 403)…

All of that would justify the sort of action suggested but one might consider that is unfair as the neighbour is left with damage to their property that is inflicted upon them in order to rescue someone else. As there is no ‘duty to rescue’ why should they be left with that cost? And what if the damage is more than just a fence – eg it’s a hole in the wall? The destruction of their building? The loss of their prize-winning garden? But, on the other hand, there is no doubt that a fire brigade can demolish a house that is not on fire in order to stop the spread of that fire –

Yet we will well agree that in some cases a man may justify the commission of a tort, that is in cases where it sounds for the public good … a man may justify pulling down a house on fire for the safety of the neighbouring houses … (Maleverer v Spinke (1538) 73 ER 79, 81).

Conclusions

The questions I was asked were:

  • Would there be some sort of legal ability for emergency services to “force” access to/through private property in order to save a life?

Yes, the common law doctrine of necessity would justify that action but agencies should be cautious to consider the damage they are doing and do as little damage as possible. Convenience is not necessity (Murray v McMurchy [1949] 2 DLR 442). It would have to be the only way, not just the most convenient way to rescue the patient.

  • Can the private property owners deny access if it means the death of a patient?

Fundamentally I think they cannot though that would fly in the face of some principles including that there is no duty to rescue because here the neighbour is being saddled with the cost of their neighbour’s rescue. A cost which they are not legally bound to meet but if they cannot prove negligence by someone, they may not recover.

  • What are the boundaries of control a private property owner has over access to their property vs the value of a human life and taking steps needed to preserve said life?

The safety of human lives belongs to a different scale of values from the safety of property. The two are beyond comparison and the necessity for saving life has at all times been considered a proper ground for inflicting such damage as may be necessary upon another’s property. (Southport Corporation v Esso Petroleum Co Ltd [1956] AC 218, 228).

Categories: Researchers

In Queensland, is threatening suicide evidence of ‘a major disturbance in [a] person’s mental capacity’?

Michael Eburn: Australian Emergency Law - 6 August, 2020 - 11:41

Today’s question comes from a colleague who queries the advice given by Queensland Ambulance to paramedics regarding an emergency examination authority – see QAS Clinical Practice Procedures: Behavioural disturbances/Emergency Examination Authority (October, 2017). My colleague says:

Were you aware of this from Queensland Ambulance? They are basically saying that if a person is suicidal then they can be detained and transported by paramedics and apparently the “patient’s consent is not relevant”!

I think they have phrased this really badly and really mean that this would apply if the patient cannot give consent…

The law (dealing with EEAs) does not affect the operation of the law with respect to a person’s right to make decisions regarding medical treatment. EEAs do not apply in circumstances where a person of sound mind makes a voluntary decision to refuse medical treatment, even if that decision may result in the person suffering preventable harm.

And just adds confusion at the bottom by saying,

The law (dealing with EEAs) does not affect the operation of section 63 of the Guardianship and Administration Act 2000 in relation to the provision of urgent treatment to an adult with impaired decision-making capacity. EEAs are not required in circumstance were a person with impaired decision-making capacity is in need of urgent treatment to avoid imminent risk to the person’s life, health or safety.

As far as I can tell this section alone would make EEAs irrelevant.

I have previously written about EEAs (see Paramedics and the mentally ill – Queensland – An update (October 14, 2019) and I think that addresses many of the issues raised.

It is important to note that the EEA comes from the Public Health Act 2005 (Qld), not the Mental Health Act 2016 (Qld). The Public Health Act is dealing with people with a ‘major disturbance in mental capacity’ (See Chapter 4A) and prima facie that is not the same as a mental illness. If it was, they would use the same term. What is meant by ‘a ‘major disturbance in mental capacity’ is not, however defined.

Section 157B deals with the power of ambulance officers and police to detain and transport a person. Section 157B(1) says:

This section applies if an ambulance officer or police officer believes—

(a) a person’s behaviour, including, for example, the way in which the person is communicating, indicates the person is at immediate risk of serious harm; and

Example—

a person is threatening to commit suicide

(b) the risk appears to be the result of a major disturbance in the person’s mental capacity, whether caused by illness, disability, injury, intoxication or another reason; and

(c) the person appears to require urgent examination, or treatment and care, for the disturbance.

Subsection 157B(3) says that if the criteria in s 157B(1) are met, then:

The ambulance officer … may detain the person and transport the person to a treatment or care place.

I agree that there is an inconsistency in the QAS document. It says:

Patient consent is not relevant. Irrespective of whether the patient consents or does not consent, if the EEA criteria is met, the EEA is to be applied and the patient transported.

Later it says:

The law dealing with EEAs does not affect the operation of the law with respect to a person’s right to make decisions regarding medical treatment. EEAs do not apply in circumstances where a person of sound mind makes a voluntary decision to refuse medical treatment, even if that decision may result in the person suffering preventable harm.

Those propositions are mutually exclusive. If a person who suffers from ‘a major disturbance in the person’s mental capacity’ is not of ‘sound mind’ then an EEA is not required. Treatment can be given to a person who is incapable of consenting where that treatment is reasonable and in their best interests (see The doctrine of necessity – Explained (January 31, 2017); see also Guardianship and Administration Act 2000 (Qld) s 63 referred to in the QAS document and discussed in the post QAS asked to ‘return’ patients (March 30, 2020)).

If an EEA is to have any value it must apply when a person remains competent even thought they have ‘a major disturbance in the person’s mental capacity’. If, if in those circumstances ‘patient consent is not relevant’ then an EEA does ‘affect the operation of the law with respect to a person’s right to make decisions regarding medical treatment’. In short an EEA is only required if a person can consent but suffers from ‘a major disturbance in the person’s mental capacity’. The presence of such a disturbance, like a diagnosed mental illness, is not however determinative of whether or not the person retains capacity. If they do not have capacity treatment can be given without an EEA. If they do have capacity an EEA can only work if it does ‘affect the operation of the law with respect to a person’s right to make decisions regarding medical treatment’.

It is my view that the law on EEAs does affect the operation of the law with respect to a person’s right to make decisions and that is made clear by the use of the word ‘detain’ in ss 157B, 157E and 157L. Further once the paramedics issue an EEA a person may be examined ‘without the consent of the person or anyone else’ (s 157O). That is only relevant if they have the capacity to consent.

My personal concern with the document is the example given where it says ‘An example of a disturbance in mental capacity is ‘person threatening to commit suicide’.

When you compare the Act to the QAS guidance there is an immediate problem. The QAS document says (emphasis in original):

To detain and transport a person under an EEA, paramedics must form the belief that the following criteria are met

i) the person’s behaviour, including, including the way in which the person is communicating, indicates the person is at immediate risk of serious harm; and

ii)       the risk appears to be the result of a c (whether caused by illness, disability, injury, intoxication or another reason); and

iii)        the person appears to require urgent examination, or treatment and care, for the disturbance.

An example of a disturbance mental capacity is ‘person is threatening to commit suicide’.

What QAS have written is simply not consistent with the Act. The example given in the Public Health Act s 157B of ‘a person is threatening to commit suicide’ is an example of something that may indicate that the person is at immediate risk of serious harm. That is, in the Act the example appears after criterion (a) not criterion (b).

A paramedic has to be satisfied that (a), (b) and (c) are all met. The Act says that the threat of suicide is relevant to (a); the QAS document, incorrectly, says that is relevant to (b). The QAS document is clearly wrong.

Although dealing with mental health legislation, not public health legislation, the High Court, in Stuart v Kirkland-Veenstra [2009] HCA 15, had this to say about the link between suicide and mental illness:

  • ‘While attempted suicide may be indicative of mental illness, it is not necessarily so’ ([5], French CJ);
  • ‘Section 10 [of the Mental Health Act 1986 (Vic); now repealed] does not assume a necessary linkage between mental illness and attempted suicide. This accords with the long-standing resistance of the common law to the proposition that such a connection necessarily exists…’ ([44], French CJ);
  • ‘… the construction of s 10, which would not treat attempted suicide as necessarily reflecting mental illness, is consistent with the long-standing caution of the common law about that proposition. Given the complexity and variety of factors which may lead to suicidal behaviour, it would be a bold legislative step indeed to sweep it all under the rubric of mental illness, however widely defined’ ([46], French CJ);
  • ‘As is apparent from the structure of s 10, and consistently with the common law history discussed earlier, the fact that a person has attempted suicide or prepared to attempt suicide is not of itself sufficient to support an inference that the person is mentally ill’ ([54], French CJ);
  • ‘The fact that a person has decided to commit suicide may indicate deep unhappiness or despair. It does not mean that the person is mentally ill within the meaning of s 8(1A). Mr Veenstra’s rational and cooperative responses observed by the officers supported their opinion [that he was not mentally ill]’ ([58], French CJ);
  • ‘Section 10 [of the Mental Health Act 1986 (Vic); now repealed] does not reveal any legislative view that to attempt suicide is to be mentally ill. Nor, as explained below, has that been the unqualified position of the common law’ ([91], Gummow, Hayne and Heydon JJ);
  • ‘It is nonetheless important to acknowledge that suicide is often associated with disturbance of “the balance of the mind” or with being of “unsound mind”. This was not always so.

Bracton, writing in the 13th century, recognised the complexity of suicide. Bracton contrasted the case of “a man [who] slays himself in weariness of life or because he is unwilling to endure further bodily pain” from one who “lays violent hands upon himself without justification, through anger and ill-will, as where wishing to injure another but unable to accomplish his intention he kills himself”. The former might have “a successor, but his movable goods are confiscated. He does not lose his inheritance, only his movable goods”. On the other hand, the latter “is to be punished and shall have no successor”. But by the 16th century distinctions of this kind were lost in the general condemnation of suicide as “an offence against nature, against God, and against the King. Against nature, because it is contrary to the rules of self-preservation … Against God, in that it is a breach of His commandment, thou shalt not kill … Against the King in that hereby he has lost a subject, and … he being the head [of the body politic] has lost one of his mystical members.” And of these three causes for condemnation, it was the religious that may be seen as having had chief influence on the later development of the law.

A suicide was buried at night, at a crossroads, and the corpse was defiled. The last recorded instance of this being done in England was in 1823. In Victoria, the Coroners Act 1896, in a provision drawing upon English statutory sources, provided that upon a coroner’s finding of a verdict of suicide (felo de se) it was not necessary that the interment of the body “take place between the hours of nine and twelve at night” and that the coroner could not forbid the performance of any of the rites of Christian burial.

The performance of the rites of Christian burial was not authorised on the interment of the remains of a person who had committed suicide, unless, significantly, the deceased was shown to have been non compos mentis at the time. During the 20th century, perhaps even earlier, coroners or juries would often add to a verdict that the deceased had killed himself or herself, words to the effect “whilst of unsound mind” or “whilst the balance of [his or her] mind was disturbed”. Riders to this effect were added even where there was no medical evidence to support the conclusion.

In these circumstances, the association that may have developed in the past between suicide and mental illness provides no certain foundation for a conclusion that a person threatening suicide will in every case lack the capacity to decide what to do. That is, the historical association between suicide and mental illness provides no sufficient basis upon which to impose a duty of care which denies the personal autonomy of the person to whom it is owed. And the provisions of the Mental Health Act not only do not provide such a basis, they reinforce the need to give effect to personal autonomy.

Contrary to the inference drawn by the majority in the Court of Appeal in this case, the premise for the provisions that now appear in s 10 of the Mental Health Act is that a person threatening suicide may or may not be suffering mental illness…’ ([93]-[98], Gummow, Hayne and Heydon JJ (emphasis added));

  • ‘Depending on the circumstances, a person who has attempted, or is likely to attempt, suicide may or may not satisfy the criteria of mental illness in s 8. The majority [in the Court of Appeal] were not correct to hold that s 10 is to be read as equating a person who has attempted or may attempt suicide with a person who is mentally ill…’ ([147], Crennan and Kieffel JJ);

Again I note that they were dealing with the definition of ‘mental illness’ in the Victorian Mental Health Act (as it then was) not the question of a ‘a major disturbance in the person’s mental capacity’ as required by Queensland’s Public Health Act, but even so the discussion is informative. Given that what constitutes ‘a major disturbance in the person’s mental capacity’ is not defined, one would have to consider the case law and plain English language meaning of those words. As with mental illness if ‘the association that may have developed in the past between suicide and mental illness provides no certain foundation for a conclusion that a person threatening suicide will in every case lack the capacity to decide what to do’ it must follow that the threat of suicide does not demonstrate an impaired capacity. The person may be quite rational, orientated as to place and time and have sound reasons for choosing to end their own life perhaps due to “weariness of life or because he is unwilling to endure further bodily pain”.

Again as noted in Kirkland-Veenstra, suicide is no longer a crime (see [45] and [77]). People can refuse treatment in the sure and certain knowledge they will die and some would equate that as suicide.  Whatever perspective one has, for some suicide may be a rational response to their world view and position and therefore not evidence of a ‘major disturbance in the person’s mental capacity’.

Conclusion

As I noted it my earlier post, it may be the case that a person remains competent to make medical decisions but still has ‘a major disturbance in the person’s mental capacity’. In that case treatment can be given without their consent but, as I noted in that post

A court may determine that a finding that a patient retains competence (as defined in, for example, PBU & NJE v Mental Health Tribunal [2018] VSC 564, In Re C (Adult: Refusal of Treatment) [1994] 1 WLR 290 and Gillick v West Norfolk and Wisbech Area Health Authority [1986] 1 AC 112) means that they do not have a sufficiently ‘major disturbance in the person’s mental capacity’ but equally a court may find that the issue depends on all the circumstances.  Until that issue is resolved paramedics and police will have to make their own decision on whether the patient’s behaviour represents a ‘major disturbance in the person’s mental capacity’ or just an unwise decision.

It may be that if you have capacity, you do not have ‘a major disturbance in the person’s mental capacity’ but if that were the case, there is no need for EEAs. I agree that the QAS have phrased their Clinical Practice Procedure ‘really badly’. By saying that consent is irrelevant but the EEA does not affect the law of consent they are making two mutually inconsistent statements.

Further, the QAS document says ‘An example of a disturbance mental capacity is ‘person is threatening to commit suicide’ but that is not true. The QAS document misquotes the Act. The Act gives the example of suicide as an example that the person is ‘at immediate risk of serious harm’ (criterion (a)), not that they have ‘a major disturbance in the person’s mental capacity’ (criterion (b)). An intention to commit suicide may be evidence of ‘a major disturbance in the person’s mental capacity’ but it will not, on its own, be sufficient to justify action under the Public Health Act.

Categories: Researchers

Clive Palmer’s challenge to WA border closures

Michael Eburn: Australian Emergency Law - 5 August, 2020 - 19:52

Today’s question is about Clive Palmer’s challenge to the border lockdown in Western Australia. The matter is still before the court so I don’t have details of exactly what the application is or the arguments made. I’m asked:

Without going into detail about the State laws  could  you please tell me what the relatively  recent  case law concerning s92 of the Constitution points to if a restriction on interstate intercourse was not intended to be discriminatory?

Could you also illuminate the procedure being adopted in Palmer v WA for me. Is it usual for the evidence to be given outside of the State concerned and in the Federal Court? What is the relationship between the Federal Court hearing and the High Court decision, eg do Counsel still address the High Court before they deliberate?

In Mr Palmer’s case I assume that  the event that triggered his cause of action is the refusal of an entry application he made to the WA Police Commissioner some time ago. If the fact that he and the Federal Attorney General allege makes Western Australia’s regime unconstitutional is that it doesn’t discriminate between the risks (ie level of community spread) in the various States,  is the time at which the Court considers whether the legislation was invalid the time that Mr Palmer was refused entry,  the time that evidence is given to the Federal Court or the time when the High Court hands down it’s decision? The practical situation is likely to be very different at each point in time.

They are good questions. I don’t think I could do a better job that refer readers and my correspondent to a blog published by AUSPUBLAW, the Australian Public Law Blog established by the Gilbert + Tobin Centre of Public Law at UNSW. See:

Henry Cooney and Harry Sanderson  ‘Border Closures and s 92: Clive Palmer’s Quest to Enter WA’ on AUSPUBLAW (04 August 2020) <https://auspublaw.org/2020/08/border-closures-and-s-92-clive-palmers-quest-to-enter-wa/>

I would add this on the relationship between the Federal Court and the High Court. When originally established the High Court would hear ‘first instance’ cases, that is some cases could start in the High Court. As the population has grown more cases arise and that puts demands on the courts. The High Court sits as the ultimate appeal court in all Australian jurisdictions and with only seven judges it is not appropriate for the court to sit as a trial court. The Federal Court was created by the Federal Court of Australia Act 1976 (Cth). As a trail court the Federal Court has the capacity to hear evidence and determine what are the facts.

In this case there are critical issues of fact, what Cooney and Sanderson call ‘the complicated epidemiological evidence required to determine the necessity of the border closure’. The Federal Court will hear the relevant evidence and determine the facts. The High Court judges will then determine how the Constitution applies to the factual situation identified by the judge so yes, counsel will still address the High Court once the Federal court has determined the factual situation.

In these sorts of cases it doesn’t really matter where the evidence is taken. Justice Rangiah is based in Brisbane and I understand Mr Palmer is also based in Brisbane (or at least Queensland) so hearing the matter in Brisbane may have been convenient for everyone involved.

Categories: Researchers

Revisiting evacuations in Melbourne

Michael Eburn: Australian Emergency Law - 5 August, 2020 - 17:05

Today’s question revisits an earlier post – Compulsory evacuations in Melbourne (February 8, 2016). My correspondent says that in that post I say:

“under the Emergency Management Act 1986 (Vic) the Minister, during a declared state of disaster can order an evacuation but again, not of anyone with a pecuniary interest.  Police, on the other hand, can declare an area an emergency area and require people to evacuate or leave the area, or allow them to stay under certain conditions.  Their power extends to people with a pecuniary interest and we know that because ss 36B(2) and (3), above, expressly say that this is the case.”

The quoted sections of the Act are:

“36B. Powers in respect of emergency area

(1) If a declaration of an emergency area is made under section 36A, a police officer may exercise the following powers— …

(c) direct any person on any road or footpath or in any open space or in any vehicle on any road, footpath or open space, within the emergency area to immediately leave the emergency area by the safest and shortest route;

(d) authorise a person to enter or remain in the emergency area subject to such conditions as the police officer considers appropriate.

(2) Subsection (1) also empowers a prohibition or direction to be given to a person who claims a pecuniary interest in property in the emergency area or goods or valuables in that property and is not in that property.

(3) Subsection (1)(d) also empowers an authorisation subject to conditions to be given to a person who claims a  pecuniary interest  in property in the emergency area or goods or valuables in that property and is on that property.”

Just wanting to clarify something regarding compulsory evacuation of those with pecuniary interest. You state that 36B(3) allows a person to be removed if they are in an area declared as an “emergency area”, irrespective of pecuniary interest. I note that 36B(3) only refers to Subsection (1)(d), not the entire subsection. My reading of that is that a person cannot be forced to leave, but can have conditions placed upon their decision to remain in an “emergency area”?

This is seemingly corroborated by a link you have posted previously (https://ajem.infoservices.com.au/items/AJEM-22-04-02), in which the author states:

“The Emergency Management Act 1986 (Vic) allows police officers to direct a person who is out in the open or in a vehicle to leave the ‘emergency area’ (as declared by the most senior police officer under section 36A of the Emergency Management Act 1986 (Vic)) immediately. ‘Reasonably necessary force’ may only be used to remove persons if it is suspected that an offence against the Act is being committed. Otherwise, force may not be used. Persons with pecuniary interests may however be prohibited from entering their property and persons with pecuniary interests who are already on the property may have a condition placed on their staying. It is unclear if force can be used to remove such persons when the conditions placed on their staying are not met.”

Just hoping to clarify – we were talking about this at work yesterday and just wanted it to be made clear. Are you saying that persons in an “emergency area” can be forced to leave regardless of pecuniary interest?

The Emergency Management Act 1986 (Vic) s 46a says that an emergency area may be declared when (emphasis added) the

… most senior police officer in attendance at an emergency, being a police officer of or above the rank of senior sergeant, is of the opinion that because of the size, nature or location of an emergency it is necessary to exclude persons from the area of the emergency so as to ensure—

(a)        public safety; or

(b)       security of evacuated premises; or

(c)        the safety of, or prevention of obstruction, hindrance or interference to, persons engaging in emergency activity—…

Section 36B says:

(1)        If a declaration of an emergency area is made under section 36A, a police officer [not just the police officer making the declaration] may exercise the following powers—

(a)        close or cause to be closed any road, footpath or open space otherwise providing access to the emergency area;

(b)       prohibit any person or vehicle from entering or passing through the emergency area;

(c)        direct any person on any road or footpath or in any open space or in any vehicle on any road, footpath or open space, within the emergency area to immediately leave the emergency area by the safest and shortest route;

(d)       authorise a person to enter or remain in the emergency area subject to such conditions as the police officer considers appropriate.

(2)        Subsection (1) also empowers a prohibition or direction to be given to a person who claims a pecuniary interest in property in the emergency area or goods or valuables in that property and is not in that property.

(3)        Subsection (1)(d) also empowers an authorisation subject to conditions to be given to a person who claims a pecuniary interest in property in the emergency area or goods or valuables in that property and is on that property.

(4)        …

(5)        If a police officer has reason to suspect that an offence against this Act is being or is about to be committed, the police officer may order a person to leave the emergency area and may use such force as is reasonable necessary to remove the person from the emergency area or to prevent the person from entering the emergency area.

Section 36C(1A) says:

A person who is authorised under section 36B(1)(d) to enter or remain in an emergency area must not, without reasonable excuse, fail to comply with the conditions of the authorisation.

Failure to comply with an authorisation is an offence.

Section 36B(3) allows an authorisation to given to a person with a pecuniary interest when they are on the property of which they have an interest. But equally it must follow that police do not have to give that authorisation. If they are not authorised to be there but cannot be directed to leave (s 36B(1)(c)) what is the value of the ‘authorisation’ when given?

It seems to me that the effect must be that if a person is not authorised to be in the area then s 36B(5) would apply and would allow the police to order the person to leave and use reasonable force to ensure compliance. This could be made clearer if the police phrased it as an authority – ‘I authorise you to be in the emergency area for 10 minutes on condition that you are packing your car and then leaving’.

However the answer is not clear. My interpretation of the various sections is that it is reasonably clear that police can use force to compel a person to leave who has been authorised to stay but has not complied with the conditions of the authorisation even if they are on property for which they have a pecuniary interest. It seems to me that is what ss 36B(3) and s 36C(1) say. But I agree with Loh that it is ‘not clear’.  Further it is not clear what action is to be taken if police refuse to authorise a person to stay. The fact that police can authorise who is on a property where they have a pecuniary interest must also mean they can choose not to authorise that person to stay and that must have some meaning.

My view is that reading ss 36B and 36C together that yes ‘persons in an “emergency area” can be forced to leave regardless of pecuniary interest’. That seems unproblematic if they don’t comply with any conditions authorising them to stay but is less clear if police decline to authorise them to stay. My conclusion is based on the premise that if police ‘may’ authorise a person to stay even if they are on their own property so it must follow that they may also refuse to authorise a person to stay, and that has to have meaning. I think that is also consistent with why an emergency area may be declared. If you want to get everyone out of a building that is at risk of collapsing you want everyone out.

I note however that is inconsistent with the rest of the evacuation processes in Victoria.  Further there is no general power to evacuate people who are not on a road, footpath or open space. It would be also open to a court to find that the section allows police who are evacuating say a park to allow people who are on the road, footpath or open space to stay in the area provided for example they go and stay home. If they leave home they can then be compelled to leave both for breaching the condition and by virtue of s 36B(1)(c).

At the end of the day I would suggest that the sections are poorly drafted and if anyone challenges a direction to leave or a prosecution for failing to comply with an order to leave, some judge will have to sort it out.

Categories: Researchers

Does a paramedic require a first aid certificate to practice in an unregulated health field?

Michael Eburn: Australian Emergency Law - 3 August, 2020 - 21:45

This question comes from a registered Paramedic who is

…also a qualified Practitioner [in a health field that is not registered under the Health Practitioner Regulation National Law] and, while this is currently not regulated, the [Professional Association] provides Membership and practice oversight. In order to join as a practitioner and teacher I needed to provide them with evidence of my training as well as my indemnity Insurance … but they also asked me for a current First Aid certificate. When I stated that I am a current registered Paramedic they stated that this didn’t matter and that the law required all health professionals even registered Doctors, nurses and paramedics to produce a current First Aid certificate. They only require HLTAID003 however it is an added expense of course and I find it extraordinary that registered health practitioners would need to provide this by Law. Can you shed any further light on this for me please?

I did ask if my correspondent could direct me to the law they were referring to. They were told ‘that it was a requirement in the National Code of Conduct for Health Care Workers’.

The National Code of Conduct for Health Care Workers is a product of the Council of Australian Governments (COAG). The National Code is set out as Appendix 1 to the COAG communique of 17 April 2015 (see also COAG Health Council Final Report: A National Code of Conduct for health care workers (17 April 2015)). The National Code is a recommendation. On its own it has no legal effect. It was a recommendation of the COAG report that:

That a National Code of Conduct for health care workers in the terms set out in Appendix 1 be approved as the basis for enactment of a nationally consistent code-regulation regime for all health care workers.

and

That jurisdictions use their best endeavours to enact or amend legislation to give effect to the National Code of Conduct and a nationally consistent code-regulation regime for health care workers.

New South Wales, South Australia and Queensland all had forms of a code for unregistered health professionals prior to the National Code.  NSW still retain its code whereas South Australia and Queensland have amended theirs to bring them into line with the National Code. The National Code has been adopted in Victoria: see Public Health Regulation 2012 (NSW) Schedule 3, Health Ombudsman Regulation 2014 (Qld) and National Code of Conduct for Health Care Workers (Queensland), Health and Community Services Complaints Regulations 2019 (SA), Schedule 2 and Health Complaints Act 2016 (Vic) Schedule 2.

The NSW code says (at [3] emphasis added):

(1)       A health practitioner must provide health services in a safe and ethical manner.

(2)       Without limiting subclause (1), health practitioners must comply with the following principles–…

(k)       a health practitioner must ensure that appropriate first aid is available to deal with any misadventure during a client consultation…

The National Code, along with the codes in Queensland, South Australia and Victoria says (at [7] in South Australia, [5] in the other states and the National Code; emphasis added):

1)         A health care worker must take appropriate and timely measures to minimise harm to clients when an adverse event occurs in the course of providing treatment or care.

2)         Without limiting subclause (1), a health care worker must:

a) ensure that appropriate first aid is available to deal with any adverse event …

The question

My correspondent was told ‘that the law required all health professionals even registered Doctors, nurses and paramedics to produce a current First Aid certificate’. I am asked if I can ‘shed any further light on this’ claim. The material above shows that neither the NSW nor the National Code require a registered health professional to have a standard first aid certificate.

The Codes require that a practitioner ‘ensure that appropriate first aid is available to deal with any adverse event’ but does not prescribe any qualifications for that purpose. Having a paramedic on site would be a way to ‘ensure that appropriate first aid is available to deal with any adverse event’.

A registered paramedic could practice their second profession without a first aid certificate and without being in breach of the NSW or National Code. A professional association however may require practitioners to have a first aid certificate, as that makes it easier for the membership secretary to tick off that they have provided the necessary certification. If the paramedic wanted to join that Association they would need to get a certificate or persuade them that Registration as a paramedic means you meet the Code’s requirement and you can and do ensure ‘that appropriate first aid is available to deal with any adverse event’.

One can understand for example that doctors and nurses might have to get a first aid certificate because it may have been years since they have done anything that looks like first aid or CPR. For paramedics, at least those actively employed, providing ‘appropriate first aid’ is their key role – it’s what sets paramedics apart from other health professions (and see the discussion in Eburn M. Registered paramedics, insurance and first aid – looking for coherence in law. Australasian Journal of Paramedicine [Internet]. 2019 Feb.4 [cited 2020 Aug.1];160. Available from: https://ajp.paramedics.org/index.php/ajp/article/view/663). The problem is that paramedics, and readers of this blog may have a view of what paramedics do and what paramedic registration means, but others may not.

Conclusion

The NSW Code of Conduct and the National Code of Conduct for Health Care Workers adopted in Queensland, South Australia and Victoria require a person practicing as an unregistered health professional to ensure that appropriate first aid is available. They do not prescribe the qualification to meet that requirement. It is up to the practitioner to determine what is ‘appropriate first aid’ and how they will ensure that it is available. If the practitioner is also a registered paramedic he or she may quite reasonably believe that their presence (along with any necessary equipment, eg a first aid kit and an AED) meets these requirement. The Codes do not require the practitioner to have an HLTAID003 first aid certificate.

A professional Association can of course set its own membership requirements. They could insist, as part of their rules, that a potential member have an HLTAID003 first aid certificate but that is a different matter and not a matter of law.

Categories: Researchers

Common law and constitutional rights (again)

Michael Eburn: Australian Emergency Law - 3 August, 2020 - 20:47

This email was received before I made my post State of Disaster declared in Victoria (August 3, 2020) and therefore before I said ‘Further correspondence will not be entered into’. In light of that and given that they are serious questions, I’ll answer them.

My correspondent says:

I would like to know if during declared states of emergencies:

  1. Is the Constitution temporarily suspended?
  2. If so, when is the suspension lifted, how would people know?
  3. If it is suspended, is this legal and lawful to do according to the Constitution?
  4. If it is suspended, is it a full temporary suspension or only parts of it are? If only parts are, how can we see what parts are suspended?
  5. Is the constitution simply never suspended regardless of what ‘state of emergency’ is taking place or has been declared?

Your blog stated: “The answer is that the Commonwealth has no overarching emergency management legislation. There is no power to declare a ‘national emergency’ and the declaration, if made, would have no legal effect or impact.”

Does this therefore legally invalidate any declaration of a state of emergency as well?

In relation to all that is happening with “mandatory” face mask wearing, I’ve been trying to research constitutional law and any precedents that may exist.

I have found that Magistrate Duncan Reynolds in Melbourne, in July 2013 stated that following:

“There is no common law power vested in police giving them the unfettered right to stop or detain a person and seek identification details. Nor, is s.59 of the (Road Safety) Act a statutory surge of such power”

In addition, Justice Stephen Kaye said in a Melbourne Supreme Court Ruling on November 25, 2011:

“It is an ancient principle of the Common Law that a person not under arrest has no obligation to stop for police or answer their questions. And there is no statute that removes that right. The conferring of such a power on a police officer would be a substantial detraction from the fundamental freedoms which have been guaranteed to the citizen by the Common Law for centuries.”

I understand this is a very long message, and I apologise for that, but in this world ruled by language and legalise, I am a mere common man doing my utmost best to ensure that I retain whatever rights and freedoms have been guaranteed to me and all people through Common Law and the Constitution.

The numbered questions

The answers to the numbered questions are:

  1. Is the Constitution temporarily suspended?

No, the (Australian) Constitution is not temporarily suspended. The Emergency Management Act 1986 (Vic) s 24(2)(b) says that during a declared state of disaster

… if it appears to the Minister that compliance by a government agency with an Act or subordinate instrument, which prescribes the functions powers duties and responsibilities of that agency, would inhibit response to or recovery from the disaster, declare that the operation of the whole or any part of that Act or subordinate instrument is suspended;

The Constitution of Victoria is an Act of the Victorian Parliament (Constitution Act 1975 (Vic)). Presumably the Minister could ‘suspend’ parts of the Victorian Constitution where the criteria in s 24(2)(b) have been met.

  1. If so, when is the suspension lifted, how would people know?

On the basis that I think we’re talking about the Australian Constitution there is need to answer that question as there is not, and cannot be any suspension.

  1. If it is suspended, is this legal and lawful to do according to the Constitution?

Again, no need to answer; the Australian Constitution is not and cannot be suspended.

  1. If it is suspended, is it a full temporary suspension or only parts of it are? If only parts are, how can we see what parts are suspended?

Again, no need to answer; the Australian Constitution is not and cannot be suspended.

  1. Is the constitution simply never suspended regardless?

Yes, the Australian constitution is never suspended.

Other questions:

Does the absence of Commonwealth emergency management legislation ‘legally invalidate any declaration of a state of emergency as well?’

Answer: No, they’re unrelated. The States are not subservient to the Commonwealth in the way local government is subservient to state government. The States do not need ‘authorising’ Commonwealth laws. The States can make laws on any subject they like other than those subject areas that are in the exclusive power of the Commonwealth. The presence or absence of Commonwealth emergency management legislation means nothing about the validity of state emergency management legislation.

The cited case law

The cases cited appear to come from a website Police Powers – Our Rights and Responsibilities. I’m not sure who the authors are and they don’t give the case names or citations. Finding decisions of magistrates is very difficult (see Accessing a judge or magistrate’s reasons for decision (November 18, 2016)). I infer that the decision by Kaye J was his decision in DPP v Hamilton [2011] VSC 598 ((25 November 2011).

In that case Mr Hamilton was approached by police who wanted to ask questions about whether he had left a restaurant without paying the bill. Mr Hamilton ran away and was pursued by police. He was charged with a number of offences all of which were ultimately dropped leaving only a charge of resisting a police officer in the execution of his duty. The court held that Mr Hamilton was not guilty as the police officer had no authority to detain him and therefore running away was not resisting the officer in the execution of his duty.

His Honour said (at [3]):

At the outset, it is important to note what this appeal is, and is not, about. In particular, this is not a case in which, at any material time, the police either had arrested the respondent, or were in the course of arresting him. Nor, on the facts of this case, was there evidence that the respondent was fleeing from the police, having been informed that the police intended, or were attempting, to arrest him. Further, it was accepted, on appeal, that this is not a case in which the respondent, as a suspect, had refused to provide his name and address in response to a request by a member of the police force, pursuant to s 456AA of the Crimes Act 1958. Rather, on this appeal, the issue which must be determined is whether, on the particular facts of this case as set out in the evidence which was led before the Magistrate, the police had the power to require the respondent, as a suspect, to stop and speak to them, notwithstanding that the police were not then in the course of arresting him.

The quote ascribed to Kaye J in my correspondent’s question does not appear in the judgement. That is His Honour did not say

It is an ancient principle of the Common Law that a person not under arrest has no obligation to stop for police or answer their questions. And there is no statute that removes that right. The conferring of such a power on a police officer would be a substantial detraction from the fundamental freedoms which have been guaranteed to the citizen by the Common Law for centuries.”

The second sentence in that quote – ‘The conferring of such a power …’ was the submission of one of the lawyers, not the judge’s reasoning (see [36]).

It is however true that without a specific statutory obligation, a person is not obliged to answer police questions or provide details of one’s identification. In Victoria s 456AA (see Policing the public health response via Facebook (July 27, 2020)) does require a person to provide identification details in the circumstances set out in that Act. In New South Wales a person has to provide identification if they are:

  • driving or accompanying a learner driver (Road Transport Act 2013 ss 175 and 176);
  • responsible for a vehicle where the driver is alleged to have committed an offence (Road Transport Act s 177)
  • involved in a traffic accident (Road Rules 2014 (NSW) r 287);
  • the owner, driver or passenger in a vehicle that police suspect has been used during the commission of a serious offence (LEPRA s 14);
  • suspected of committing an offence on a public passenger service (Public Transport Act 1990 (NSW) s 55).
  • suspected of being under 18 and carrying or consuming alcohol in a public place (Summary Offences Act 1988 (NSW) s 11);
  • suspected of being at or near the scene of a serious offence and police believe that they have information that would assist them (LEPRA s 11(1)).

A person is also required to confirm their identity if police:

  • or a sheriff’s officer is trying to serve a fine default warrant (Fines Act 1996 (NSW) s 104);
  • are trying to issue a penalty notice (Criminal Procedure Act 1986 (NSW) s 341);
  • have emergency public disorder powers and the person is in a target area, and the police suspect that they have been or may become involved in public disorder (LEPRA s 87L);
  • suspect that an Apprehended Violence Order has been made against the person (LEPRA s 13A);
  • give a ‘move-on direction’ and the person’s identity is unknown to the police (LEPRA s 11(2)).

This list should not be considered as comprehensive. There may be other provisions in specialised legislation that compel people to confirm their identity.  There are many examples that regardless of any common law position, the legislature has made laws that do require people to provide information to police.

An issue in DPP v Hamilton was whether statutory changes allowed police to arrest for the purposes of investigation. At common law, the only purpose of arrest is to put a person before a court. Police had to already have ‘reasonable suspicion’ that the person had committed the offence and have at least prima facie evidence to justify an arrest (Williams v R [1986] HCA 88). Legislatures have now provided that between the arrest and putting the person before a court, the person may be held for the investigation period to allow police to undertake further investigation (see Crimes Act 1958 (Vic) s 464 to 464H). An argument in DPP v Hamilton was that these changes allowed an arrest for the purpose of investigation. The court held that it did not, police could still only arrest if they had the evidence and formed the view that they intended at that time to prosecute the offender (see [35] and s 464I).

At best this decision confirmed that at common law, police do not have a power to stop a person to ask them questions and 464 to 464H of the Crimes Act 1958 (Vic) did not change that. His Honour was not considering the power under s 456AA of the Crimes Act or any other legislative power as there was no suggestion that was the power the police were trying to exercise.

Conclusion

Whatever rights and freedoms are guaranteed to you ‘and all people through Common Law and the Constitution’ are very limited.

Any common law rights are subject to modification by Parliament. If that were not the case we would still be ruled by laws from the 12th century, woman would lose property on marriage and men could still discipline their wives provided the cane was not larger than their little finger. Laws have to be updated and that is what Parliaments can and do do – see Common law rights v Parliament’s legislation (May 17, 2020).

The Australian Constitution does not guarantee any rights other than the right to take part in the democratic process. As the authors of Emergency Powers in Australia (2nd ed, Cambridge, 2019) say (at pp. 67-68):

The Constitution contains no general individual rights protections of the sort found in most contemporary constitutions. Therefore, statutory conferrals of emergency powers are not amenable to challenge on the basis that they infringe human rights.

There is no bill of rights in the Australian Constitution so the ‘rights and freedoms … guaranteed to [you] and all people through … the Constitution’ are very limited indeed.

 

Categories: Researchers

The Celeste Barber fundraising saga continues

Michael Eburn: Australian Emergency Law - 3 August, 2020 - 18:58

At comedian Celeste Barber’s request, people from around the world donated $51 million to the NSW Rural Fire Service & Brigades Donations Fund. Donors and Ms Barber were shocked to find that if you donate money to a charity, it can only use the money for the purposes for which it was established and not for whatever purpose donors may later think is a good idea. The Fund went to the Supreme Court to get guidance on what they could do with the money and the Court confirmed that they could only use it for the purposes for which they receive funds. Greens MP David Shoebridge introduced a Bill to the NSW Parliament to allow the trustees to spend money in ways that some donors may have intended but for which the trust was never established (see all the posts appearing here: https://emergencylaw.wordpress.com/?s=celeste+barber).

The latest step is that on Friday 31 June the NSW Legislative Assembly Portfolio Committee No. 5 handed down its report on the Bill. You can read the report here. The Committee made three recommendations; they are:

Recommendation 1

That the NSW Rural Fire Service establish a Rural Fire Service Volunteers Benevolent Fund, with this Fund administered cooperatively by the NSW Rural Fire Service, the Volunteer Fire Fighters Association and the Rural Fire Service Association, so that immediate support can be provided to volunteer firefighters who have been injured and/or who have lost their homes to fires during the course of their volunteer duties, and to the families of firefighters who have lost their lives.

Recommendation 2

That the NSW Rural Fire Service and Brigades Donations Trust allocate an initial start-up budget for said Benevolent Fund from any unallocated donated monies originating from the Ms Celeste Barber fund in the NSW Rural Fire Service and Brigades Donations Fund as at 31 July 2020.

Recommendation 3

That the Legislative Council proceed to debate the Rural Fires Amendment (NSW RFS and Brigades Donations Fund) Bill 2020, and that the committee comments and concerns identified by stakeholders as set out in this report be addressed during debate in the House

Recommendations 1 and 2 are not related to the Shoebridge Bill. The suggestion of a benevolent fund came from the Volunteer Fire Fighters Association (see [2.41]). The Supreme Court said that the trustees could they could use the donated funds for the purposes of ‘setting up or contributing to a fund to support rural firefighters injured while firefighting, or the families of rural firefighters killed while firefighting’ (see Judgment from the Supreme Court regarding Rural Fire Service Donations Fund (May 25, 2020) see also [1.13] of the Report). The court did not say that funds could be used for the benefit of firefighters who had lost their homes so I’m not sure why that is considered a permissible use. The Volunteer Fire Fighters Association did not provide written submissions nor is the extension – from ‘firefighters injured while firefighting’ to ‘firefighters who have been injured and/or who have lost their homes to fires’ is justified.

The first recommendation was directed to the RFS and the RFS could make those sort of payments, and the evidence is that it has done so (see [2.33] of the report). It is not clear to me, given the Supreme Court judgement how the trustees could put money into that fund other than for firefighters killed or injured, but not those that lost their homes. That may however been an over strict reading of the judgement so, for the sake of argument let us assume this would be a permissible use of the funds. On that assumption recommendations (1) and (2) are urging the RFS and the Trustees to ‘get on with it’.

As for the Bill itself it would, if passed allow the trustees wider discretion on how to use the money. You can read the Rural Fires Amendment (NSW RFS and Brigades Donations Fund) Bill 2020 (NSW) here. The key provision says:

Despite the terms of the deed, the trustees may pay or apply relevant trust money for the purpose of providing support or assistance to any one or more of the following—

(a) the families of volunteer rural fire fighters killed while providing rural fire services,

(b) volunteer rural fire fighters injured while providing rural fire services,

(c) people and organisations providing care to animals injured or displaced by bush fires,

(d) people and communities that are significantly affected by bush fires.

For the purpose of the Bill ‘relevant trust money means gifts or contributions received by or on behalf of the trust during the period commencing on 1 November 2019 and ending on 1 February 2020.’

The Committee noted arguments for and against the Bill including that the date range extended beyond Ms Barber’s fundraising efforts so would catch donations made by people who were not responding to her request. The Committee report was balanced giving arguments in favour for, and against the Bill. I won’t try to summarise them here, people can read the report if they are interested.

The final recommendation was that ‘the Legislative Council proceed to debate’ the Bill. That is very neutral. They could have recommended against any further progress of the Bill and I suppose that would have been the end of it. They did not do that but they do not recommend that the Bill be passed, only that it be debated so that the MPs can make their own decision based on the arguments for and against in the report, their own views and no doubt the views of those in their electorates.

Conclusion

Back on 16 January 2020 (see Trust operations 101) I said:

There may be ways to allow for a diversion of some of the $51m. Some suggested ones are:

  1. A special Act of Parliament
  2. An order from the Supreme Court (but on what basis I don’t know as the trust has not failed and the deed is not ambiguous)
  3. Wind up the trust and allow the trustees under cl 11 to redistribute the funds (see Donations to RFS trust on hold (January 13, 2020)).

I don’t think anyone would or has seriously suggested option 3. We’ve had a review by the Supreme Court and the advice from Justice Slattery. Now we’re at the stage of seeing whether the NSW Parliament will adopt option 1. This report is just a step along the way. Now we have to see whether the government will allow debate on the Bill and if they do then its up to the MPs to decide. There’s more to come.

Categories: Researchers

State of Disaster declared in Victoria

Michael Eburn: Australian Emergency Law - 3 August, 2020 - 09:08

As the latest step to try to deal with COVID 19 a state of disaster has been declared in Victoria. Normally I would write about what this means but on this occasion Anne Twomey, Professor of Constitutional Law at the University of Sydney has beaten me to it with this excellent piece in The Conversation Explainer: what is a ‘state of disaster’ and what powers does it confer? (August 2, 2020).

She says, inter alia,

The declaration of a state of disaster gives the police minister responsibility for directing and co-ordinating the activities of all government agencies. The minister may also allocate government resources as necessary to respond to the disaster.

The minister can direct government agencies to act or refrain from acting in particular ways to deal with the disaster. Such a direction prevails over anything to the contrary in any state law.

One of the most extreme powers the minister has is to override legislation. For centuries, it has been accepted in Australia and the United Kingdom that governments do not have executive powers to suspend or dispense with the application of the law set out in statutes.

In this case, however, it is a statute that is giving the minister, during a state of disaster, the power to declare that the operation of the whole or any part of an Act or legislative instrument is suspended.

Reassuringly, there are strict limits placed on this power. The minister can only exercise it if they believe compliance by a government agency with the provisions of an Act or instrument that prescribes the agency’s duties or responsibilities, would inhibit its response to the disaster.

Other relevant powers conferred on the minister include the power to control movement within, and entry into or departure from, the disaster area (which is the whole of the state) or any part of it.

Victoria also declared a state of disaster during the 2020 summer bushfires – see State of disaster in Victoria (January 2, 2020).

To the correspondent who asked me ‘Does a declaration of a State of Emergency or Disaster in Victoria really give the government enforceable powers or is it symbolic’ as I described in my post What is a ‘national emergency’? (December 25, 2019). The answer is yes, a declaration of a State of Emergency or Disaster in Victoria really does give the government enforceable powers. The difference between Victoria (and all the states and territories) and the Commonwealth is that the states and territories have emergency management legislation providing for a declaration and what it means. The Commonwealth does not.

Further correspondence will not be entered into

Correspondence about whether the Emergency Management Act 1986 (Vic) is in fact law and whether or not this is a good decision will not be entered into.

To those that want to write to me to argue that this action is contrary to the Australian Constitution, Magna Carta (1215) the Bill of Rights (1688), the Universal Declaration of Human Rights (1945), the Charter of Human Rights and Responsibilities Act 2006 (Vic) or some other rule, please don’t. It isn’t and even if it is, it doesn’t make it invalid (see Charter of Human Rights and Responsibilities Act 2006 (Vic) s 36(5); see also Common law rights v Parliament’s legislation (May 17, 2020)).  If you really think there is an infringement of one of these rules, please take the matter up with the Victorian Supreme Court or the High Court of Australia and help develop the jurisprudence (see Challenging COVID restrictions – part 1 (April 23, 2020).

If you think it’s an overreaction as there have only been 208 deaths in Australia (as at 2 August 2020 at 4:01pm) then look at the numbers coming out of other countries. Remember that in the USA COVID has taken more lives than combat in WWI. If Australia’s death toll is relatively small it is because of action taken, not because the disease is not virulent. Pointing to the low death toll is like complaining about the money spent on fire mitigation if next year there is no major fire when of course the point of mitigation is to prevent or minimise the impact of the fire. The fact that there is no fire (or a low disease death toll) does not demonstrate that the action was or is unnecessary.

To those that want to write to me to argue that this is a gross over reaction to what is basically ‘the flu’ please don’t. Unless you have a PhD in epidemiology or medical science and access to all the information and advice that the Minister and the Chief Health officer have, your opinion is unhelpful.

And if you want to tell me that this is all a fraud by the UN, WHO or a secret new world government and the Bill Gates Foundation aiming to inject microchips via compulsory vaccination (noting that there is no vaccine for COVID-19) then I understand Bunnings has a new range of tin-foil hats – see https://www.facebook.com/watch/?v=321163975914746.

Categories: Researchers

An unreserved apology

Michael Eburn: Australian Emergency Law - 2 August, 2020 - 22:56

In a recent post I accidentally left the name of my correspondent attached to the question that was posed. For this I offer an unreserved apology. It is my practice to always maintain the confidence of my correspondent’s identity. Of course I cannot help it if people ‘in the know’ can infer who a correspondent is but it is my practice to always remove, and keep confidential, identifying information. On this occasion that did not happen.

The post has been deleted and to that person again I offer my apology. To future correspondents I confirm that it is my intention to continue to keep confidential the names of people who write to me.

Categories: Researchers

Private charity as NSW Ambulance community first responders

Michael Eburn: Australian Emergency Law - 1 August, 2020 - 13:12

When I wrote my post Paramedics and drawing professional boundaries (July 30, 2020) I did think it had been some time since I’d received any questions. Between then and now I now have 8 questions/comments to respond to!  If you have written to me ‘watch this space’ as I try to get through them, generally in the order received.

The first question relates to Chevra Hatzolah, a private ambulance service operating in Sydney, Melbourne and around the world, but this question relates to their Sydney (ie NSW) operations. My correspondent asks:

I wonder where non-secular jurisdictional services fit in here. In Sydney and Melbourne for example, I have come across Hatzolah, a charity serving their respective religious communities as an ambulance service. In NSW they have received funding in form of training and equipment from NSW Health and they respond to call outs in NSW Ambulance uniforms. Their webpage states:

‘Hatzolah should be called:

– for all medical emergencies

– to bandage a serious injury

– if you are involved in a car accident or witness a pedestrian struck

– even when in doubt. We are happy to assist patients that don’t turn out to be as serious as previously thought’

There have been a few interesting incidents with Hatzolah attending as they do not respond to calls from outside their religious community. Apart from the obvious question, ‘How is that legal?’, I wonder whether they fall under the private ambulance service banner or do they qualify as jurisdictional service due to the NSW Ambulance uniforms and equipment?

All I know about Hatzolah I know from their website https://www.hatzolah.com.au/ so the answer may not be comprehensive. The ‘when to call’ information, quoted above, can be found at https://www.hatzolah.com.au/about-us/.

On the news page they report ‘Hatzolah’s Bondi Lifesavers’. This is a report of an incident of ‘August 30’ but they don’t say which year. In that story they say:

SIX Jewish volunteer lifesavers from Hatzolah helped save the lives of two Indonesian Muslim teenagers who nearly drowned at Bondi Beach on Tuesday (August 30).

Hatzolah’s Mendy Litzman said his volunteers responded in less than two minutes when the call for help came through after the boys were rescued from the surf by Bondi lifeguards.

“We received the 000 call that patients weren’t breathing and we assisted straight away,” Litzman said.

“We assist everyone regardless of religion, race or gender, and I’m proud that we were able to help the teenagers that were plucked from the surf.”

I will accept their version, and that it is not true that ‘they do not respond to calls from outside their religious community’ so I won’t address that claim any further.

Also on their news page they report:

PARTNERSHIP WITH NSW AMBULANCE

Rabbi Mendy Litzman is the founder and President of Hatzolah in Sydney. Hatzolah started responding to emergencies in June of 2006. Since our inception we have rendered care for the sick and injured in the Jewish Community and anyone who calls.

Read the reports from NSW Ambulance.

Partnership with NSW Ambulance

Hatzolah Becomes an Accredited CFR Unit

The links to the website of NSW Ambulance but the specific pages are no longer at those links nor can I find relevant pages with a search of the Ambulance Service website. But let us assume for the sake of the argument they are a CFR (Community First Responder) unit.

NSW Ambulance operates cooperative arrangements to create community first responders now called ‘clinical volunteers’.  NSW Ambulance says (at (https://www.ambulance.nsw.gov.au/get-involved/volunteer)

NSW Ambulance operates a number of clinical volunteer responder models across metropolitan, regional, rural and remote NSW…

Over 350 clinical volunteers provide first response clinical care to our patients in approximately 60 locations.

These programs are an important part of building the resilience of small communities and minimising the time between calling for help, and receiving initial care from clinically skilled responders, until paramedics arrive. This leads to improved patient outcomes.\

I will infer that Hatzolah is part of the ‘clinical volunteer responder’ network.

The Health Secretary is to ‘provide, conduct, operate and maintain ambulance services’. To that end he or she may ‘co-operate with or provide assistance to any person or organisation for the purposes of providing, conducting, operating and maintaining ambulance service’. He or she is also to ‘consult and co-operate with individuals and organisations (including voluntary agencies, private agencies and public or local authorities) concerned with the provision of ambulance services’ (Health Services Act 1997 (NSW) s 67B).  Further ‘The Health Secretary may appoint such persons as the Health Secretary thinks fit to be honorary ambulance officers’ (s 67H).

Akin to a debate that’s been discussed here, the NSW RFS is the combat agency for fires in a rural fire district but that means they are to coordinate the response, it does not mean that RFS brigades are the only responders. The RFS can call on others such as the FRNSW, National Parks, the private sector or anyone that can assist (see Coordinating firefighting with NSW RFS, FC and NPWS (February 29, 2020). The Health Secretary may be responsible for ensuring that there are ambulance services available to members of the NSW community but that does not mean those services can only be provided by NSW Ambulance.

It is illegal (s 67E) to

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

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

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

Even if Hatzolah are not getting any fees they are still operating for ‘reward’ in the broad sense of achieving their purpose and objective and providing a valuable service to their community (see Castle v Director General State Emergency Service [2008] NSWCA 231). One assumes that Hatzolah have specific authority under s 67E but if they don’t the Health Secretary’s consent must be inferred by the decision to task Hatzolah in response to triple zero calls.

The legal status of Hatzolah is not clear but I would infer that the volunteers are appointed by Hatzolah to Hatzolah, they are not appointed by the Health Secretary to NSW Ambulance so I would infer that they are not honorary ambulance officers (though they maybe, I just don’t have those details).

It would appear that Hatzolah is providing an example of what might be called a ‘public/private partnership’ where Hatzolah is cooperating with the Health Secretary to provide ambulance services in Sydney’s Eastern Suburbs. It might also be akin to a visiting medical officer at a public hospital. The doctor has the right to admit patients for treatment but, in return, agrees to treat public patients as well. It would appear that Hatzolah accept private patients (ie you can call them direct) as well as public patients if they are allocated a task by NSW Ambulance via the Ambulance ComCen and the triple zero call process.

The question

The question I was asked was ‘I wonder whether they fall under the private ambulance service banner or do they qualify as jurisdictional service due to the NSW Ambulance uniforms and equipment?’ I suggest it’s a bit from A, and a bit from B.

They are clearly a private ambulance service but when responding to an incident at the request of NSW Ambulance they are providing a service as part of the ambulance services provided by NSW. In that sense they are part of the service provided by the jurisdictional ambulance service but of course subject to their own structures and the terms of any consent issued by the Health Secretary. They are not part of “NSW Ambulance” but they are part of the ambulance services provided to citizens of NSW in the same way that CFR units operated by NSW SES (https://www.ses.nsw.gov.au/volunteering-details/community-first-responder/) and NSW Fire and Rescue (https://www.facebook.com/frnsw/posts/community-first-responders-play-a-vital-role-in-small-communities-across-nsw-and/3246649385369616/) are part of those services.  The first responders with FRNSW and NSW SES are also trained by NSW Ambulance and wear NSW Ambulance vests over their uniforms in the same way the Hatzolah volunteers are shown to do in the photos on their webpage.

Conclusion

It would appear (based solely on their website) that Hatzolah form part of the community first responder network established by NSW Ambulance. They are not part of NSW Ambulance, they are a private provider, but they work with and coordinate with NSW Ambulance. That doesn’t make them part of NSW Ambulance but it does make them part of the ambulance services provided to the citizens of NSW.

Categories: Researchers