Mills Oakley, lawyers, identify some of the inquiries that are taking place following the 2019-2020 summer bushfires. No doubt there are more such as agency internal reviews and community reviews. It will be interesting to see if findings of the various enquiries are largely consistent, or inconsistent.

For all the details see Darren James, Black Summer National Bushfires Royal Commission proceeding alongside separate Federal and State Inquiries, Mills Oakley Lawyers (March 2020).

Today’s question again returns to advance care plans and directives

Many registered paramedics will end up having a discussion with carers, family and friends when they attend a patient either in an aged care facility or in their private residence, about the authority of an ‘Advanced Care Plan’. What are the legal obligations of the paramedic, when they attend a patient in either of these settings and the carers or family and friends request the paramedic to provide clinical care that is different or contradicts the authorised care plan?

That is, the Advanced Care Plan appears to be documented and authorised by the appropriate people, and appears to be recent. What clinical obligations does the paramedic bear, on behalf of the patient in these circumstances when they are being asked, advised or directed to do differently? It is understandable that if a patient appeared to have competency and capacity, and that you were clinically assessing were to ask you for some type of alternate clinical care that contradicted the Advanced Care Directive for themselves, that the paramedic may amend the treatment of the patient and assist with their wishes for care, or is it? What type of discussions would the paramedic have with the representatives of the caring facility, or the family or friends of a patient when discussing the authenticity and legal requirements of an Advanced Care Directive in commencing or withholding treatment?

It does depend on what state you are in.  For example in Victoria the Medical Treatment Planning and Decisions Act 2016 (Vic) s 53 says, emphasis added:

(1) Subject to subsection (2), a health practitioner may administer medical treatment (other than electroconvulsive treatment) or a medical research procedure to a person without consent under this Part or without consent or authorisation under Part 5 if the practitioner believes on reasonable grounds that the medical treatment or medical research procedure is necessary, as a matter of urgency to—

(a) save the person’s life; or

(b) prevent serious damage to the person’s health; or(c)

(c) prevent the person from suffering or continuing to suffer significant pain or distress.

(2) A health practitioner is not permitted to administer medical treatment or a medical research procedure to a person under subsection (1) if the practitioner is aware that the person has refused the particular medical treatment or procedure, whether by way of an instructional directive or a legally valid and informed refusal of treatment by or under another form of informed consent.

The term ‘health practitioner’ includes a registered paramedic as well as ‘an operational staff member within the meaning of the Ambulance Services Act 1986’ (s 3).

Other states, like New South Wales don’t have refusal of treatment legislation but at common law people can refuse treatment including treatment that is necessary to maintain their life (see https://emergencylaw.wordpress.com/?s=consent). In Collins v Wilcock [1984] 3 All ER 374 at p. 378 Lord Goff said:

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

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

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

If the need for consent for medical treatment means anything, it means that people can refuse treatment at the most important times of their life, and death. People can express wishes on what they wish others would do but it’s not their call.  If the patient in consultation with a medical practitioner has determined that treatment is overly-burdensome or futile and that has been recorded, it should be respected.  Anything less is to fail to treat the patient with dignity and as a end in themselves.  Remember that treatment of the incompetent is justified by the doctrine of necessity – In In Re F [1990] 2 AC 1 Lord Goff said:

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

If the person has refused treatment and you ignore that because ‘the carers or family and friends request the paramedic to provide clinical care that is different or contradicts the authorised care plan’ you are then ‘acting in the best interests of the’ ‘carers or family and friends’ and not ‘in the best interests of the assisted person’.

To return to Victoria (s 51) says:

A health practitioner may refuse under this Part to comply with an instructional directive if the health practitioner believes on reasonable grounds that—

(a)     circumstances have changed since the person gave the advance care directive so that the practical effect of the instructional directive would no longer be consistent with the person’s preferences and values; and

(b)     the delay that would be caused by an application to VCAT under section 22 would result in a significant deterioration of the person’s condition.

That does cover the situation where the ‘patient appeared to have competency and capacity, and … were to ask you for some type of alternate clinical care that contradicted the Advanced Care Directive for themselves…’. It could also apply if ‘the carers or family and friends’ tell you that the person’s ‘circumstances have changed since the person gave the advance care directive’.

In the conversation the paramedic has to consider are ‘the carers or family and friends’ requesting alternative treatment because that is what they want or are they in fact communicating that circumstances have changed such that you can say “I believe and have grounds to be believe that there has been a relevant change in the patient’s circumstances.”  Choosing to ignore the directive because ‘I can point to what they said and that gets me out of this dilemma’ is not justified.  You have to hear what ‘the carers or family and friends’ are saying and ask

In light of what I have been told, do I believe that the person’s circumstances have changed so that the practical effect of the instructional directive would no longer be consistent with their preferences and values’ or am I just hearing that these people want a different outcome or wish their friend or family member had made a different decision?

That sort of test or question would also be applicable to a refusal in other states or territories and under common law.

Today’s correspondent works

… for a Patient Transport company in NSW and it’s been unclear where we stand in transporting involuntary mental health patients without an escort provided by the sending facility. I just want to know what the legal side of maintaining a schedule is and how that relates to patient transport.

I’m assuming the person is being sent from a mental health facility, has been examined by a medical practitioner and who involuntary detention and treatment has been authorised in accordance with the Mental Health Act 2007 (NSW) Chapter 3.  I assume that the person is being ‘transferred from the mental health facility to another mental health facility or another health facility’ (Mental Health Act 2007 (NSW) s 80).

Section 81 says:

(1) The persons listed below may take to or from a mental health facility or another health facility any person who is authorised by this Act to be taken, or transferred, to or from the facility:

(a) a member of staff of the NSW Health Service,

(b) an ambulance officer,

(c) a police officer,

(d) a person prescribed by the regulations.

(2) A person authorised by this Act to take a person to or from a mental health facility or other health facility may:

(a) use reasonable force in exercising functions under this section or any other provision of this Act applying this section, and

(b) restrain the person in any way that is reasonably necessary in the circumstances.

(3) A person may be sedated, by a person authorised by law to administer the sedative, for the purpose of being taken to or from a mental health facility or other health facility under this Act if it is necessary to do so to enable the person to be taken safely to or from the facility.

(4) A person authorised by this Act to take a person to or from a mental health facility or other health facility may carry out a frisk search or an ordinary search of the person, if the person reasonably suspects that the other person is carrying anything:

(a) that would present a danger to the person or any other person, or

(b) that could be used to assist the other person to escape from the person’s custody.

(5) The person may seize and detain a thing found in a search if it is a thing of a kind referred to in subsection (4) (a) or (b).

(6) In this section:

“frisk search” means:

(a) a search of a person conducted by quickly running the hands over the person’s outer clothing or by passing an electronic metal detection device over or in close proximity to the person’s outer clothing, or

(b) an examination of anything worn or carried by the person that is conveniently and voluntarily removed by the person, including an examination conducted by passing an electronic metal detection device over or in close proximity to that thing.

“ordinary search” means a search of a person or of articles in the possession of the person that may include:

(a) requiring the person to remove only his or her overcoat, coat or jacket or similar article of clothing and any gloves, shoes, socks and hat, and

(b) an examination of those items.

The regulations expand the list of people authorised to transport a patient under s 81(1) to include ‘a person who provides a transport service approved by the Secretary for the purposes of that section is prescribed’ (Mental Health Regulation 2019 (NSW) r 45).

Conclusion

If my correspondent works for the NSW Health operated Patient Transport Service then he or she will be (I infer) ‘a member of staff of the NSW Health Service’ (s 81(1)(a)) and has all the authority required to transport the patient.  If they work for a private provider then they have authority if their employer has been ‘approved by the Secretary for the purposes of’ s 81.

Today’s question is:

How does the law relate to emergency service personnel witnessing/watching members of the public performing tasks instead of doing it themselves? Examples might include: SES watching members of the public cut trees on roads, members of a fire service watching a member of the public evacuate people from a burning building, members of a rescue service watching a member of the public wade through water to ‘rescue’ a person etc.

I’m thinking there would be two main areas:

1) Safety – What if the person injures themselves? Would the person still be a member of the public? or would the Emergency Service be responsible? (either through duty of care OR once they arrive, it’s now their “workplace”)

2) Liability – What if the person damages something? and/or someone else? (similar philosophy to above)

That question raises far too many scenarios to a complete answer; it all depends.

First the emergency services don’t have to do everything for everyone (see Coordinating firefighting with NSW RFS, FC and NPWS (February 29, 2020).  People complain about a lack of resilience in communities so it would be perverse to stop people doing what they are doing if they are doing a good job.  The SES may see a person on their own roof patching a whole and offer to assist but if the person says ‘no, I’ve got it’ the SES don’t have to step in.

Allowing people to continue may bring them within the compensation laws. The laws generally extend to anyone who places themselves under the control or direction of the emergency services.  If the SES or fire service commander says ‘you’re doing a great job – you keep doing that and we’ll do some other task’ that may be sufficient to bring the person ‘into’ the emergency service.  This is the classic ‘spontaneous volunteer’ where someone has stepped up out of need and may be bringing exactly the right skills to the task.

Equally if a person is tasked by the agency (even if the tasking is ‘you’re doing a great job, keep going’) then depending on the legislation in each state/territory that may also mean the agency is liable, or what is much more likely, that the volunteer and the agency is protected from liability for the actions of that spontaneous volunteer.

If the person is injured there could be liability on the agency if in fact the person was not doing a great job, or did not have the right skills, and the agency did not step in. There is generally no duty to rescue so there is no duty to stop people harming themselves but there may be a duty in particular cases.  In Stuart v Kirkland-Veenstra [2009] HCA 15, Crennan and Kiefel JJ said (at [127] & [129]):

The common law generally does not impose a duty upon a person to take affirmative action to protect another from harm…

In principle a public authority exercising statutory powers should not be regarded by the common law any differently from a citizen. It should not be considered to have an obligation to act. But the position of a public authority is not the same as that of a citizen and the rule of equality is not regarded as wholly applicable. It has public functions and it has statutory powers which the citizen does not. Some powers might be effective to avert or minimise a risk of harm to particular persons or their property, but the statute might not oblige their use. The relevant concern of the common law is whether a public authority might nevertheless be considered to be under a duty of care which obliges it to exercise its powers in a particular way.

Where an agency established for, and with statutory power to manage the response to a flood, fire or other emergency turns up and simply observes those affected try to manage the response themselves, without stopping to think ‘are they doing a good job?’ ‘are they competent?’ etc could well find itself liable for its inaction.  So for example watching ‘a member of the public wade through water to ‘rescue’ a person’ could well be negligent for the flood rescue team equipped with a boat, flotation devices and where the person doing the rescue appears to be struggling.

 

Today’s question arises from the recent bushfire season. My correspondent, a NSW RFS firefighter says:

During the recent fire season, a number of fires we attended had NSW National Parks or NSW Forestry Corporation staff as Divisional Commanders Overseeing and coordinating NSW RFS volunteers in the fire ground often without a liaison between agencies. I would say that because incidents were being managed by an IMT, there was most likely liaisons at least in the operations section of the IMT but rarely fire ground which caused no end of angst.

As both NSW National Parks and Wildlife service and NSW Forestry Corporation would be considered land managers and NSW Rural Fire Service would be considered a combat agency, do either land managers have the authority to manage the operations of a fire (assuming it is not a hazard reduction) and to provide direction to NSW RFS volunteers when they fall outside of our rank structure and also most likely do not have the same powers delegated to officers under the Rural Fires Act.

In a perfect world, all agencies would be working towards a common goal and desired outcome, however often a difference of opinion on how to achieve that can be seen when dealing with land managers vs another combat agency.

This is further exacerbated when there is no one on the fire ground from within your rank structure to escalate concerns to meaning the only way to gain a result to go above the Divcoms head in order to raise issues or concerns via the chain of command.

I guess in a nutshell my questions are:

• Do land managers have any powers under any act to take control and manage a fire incident on their land (eg state forests or national parks)?
• Can the NSW Rural Fire Service Commissioner delegate that authority to a land manager, and if so would that only apply in a section 44 declaration? I would assume this to be yes and if so, do the land managers have the same powers that RFS officers have under the Rural Fires Act 1997 or when the Premier declares a state of emergency?
• Does a NSW Rural Fire Service volunteer (in particular officers) have to take direction from a member of another agency if they fundamentally disagree with tactics? (this could be combatted with a liaison).

The Rural Fire Service is the ‘combat agency’ for bushfires in New South Wales (State Emergency and Rescue Management Act 1989 (NSW; ‘SERM Act’) s 3; New South Wales State Emergency Management Plan (December 2018) Annexure 3). A ‘combat agency’ is ‘the agency primarily responsible for controlling the response to a particular emergency’ (SERM Act s 3). Control means ‘means the overall direction of the activities, agencies or individuals concerned’ (s 3). It follows that the RFS is responsible for setting the overall direction of fire fighting response but it does not follow that RFS brigades are the only agencies fighting fires or are necessarily in control at a particular fire. No-one needs legal authority to fight a fire (Stephens v Stephens (1970) 92 WN(NSW) 810)) or to put that another way, anyone can fight a fire.

The officer in charge of a rural fire brigade has statutory authority to exercise various emergency powers (Rural Fires Act 1989 (NSW) ss 22-26) including a power to remove people who is interfering with the work of the brigade (s 22A). The exercise of those powers is not mandatory, he or she ‘may’ (not ‘must’) exercise those powers. Further, in many cases, the use of emergency powers will not be required.

In today’s thinking governments want to build disaster resilient communities. The National Strategy for Disaster Resilience (COAG, 2011) says:

A disaster resilient community is one where:

• people understand the risks that may affect them and others in their community. They understand the risks assessed around Australia, particularly those in their local area. They have comprehensive local information about hazards and risks, including who is exposed and who is most vulnerable. They take action to prepare for disasters and are adaptive and flexible to respond appropriately during emergencies
• people have taken steps to anticipate disasters and to protect themselves their assets and their livelihoods, including their homes and possessions, cultural heritage and economic capital, therefore minimising physical, economic and social losses. They have committed the necessary resources and are capable of organising themselves before, during and after disasters which helps to restore social, institutional and economic activity
• people work together with local leaders using their knowledge and resources to prepare for and deal with disasters. They use personal and community strengths, and existing community networks and structures; a resilient community is enabled by strong social networks that offer support to individuals and families in a time of crisis
• people work in partnership with emergency services, their local authorities and other relevant organisations before, during and after emergencies. These relationships ensure community resilience activities are informed by local knowledge, can be undertaken safely, and complement the work of emergency service agencies …

If we believe that there can be resilient communities, and individuals, then respect has to be given to them and their choices. For example, when helping a farmer the brigade may turn up, think ‘this farmer has it pretty much under control’ They can say to the landowner, including National Parks or Forestry – ‘you’ve got this, call us if you need us’ (see Gardner v Northern Territory [2003] NTSC 113 discussed in my paper ‘A case study of tort liability for fire damage’ (2007) 22(1) Australian Journal of Emergency Management 44-48) or ‘you’ve got this, but we’ll lend you a couple of appliances and crew but we’ll work toward your priorities – how can we help?’

Insisting that the emergency services will come in, take over, set priorities and otherwise manage the response is to defeat the objective of shared responsibility and disaster resilience (and see Mick Keelty, A  Shared Responsibility: The  Report of the Perth  Hills Bushfire February  2011  Review (Government of Western Australia 2011) for a discussion on the tension between evacuation and shared responsibility). Agencies like the Rural Fire Service need to work with their communities (as noted in the last dot point above).

Planning is an essential part of preparing for emergencies. Each area should have a local emergency management plan (SERM Act ss 27-32) and one would hope that where an area includes a national park or state forest that those agencies are represented on the Local Emergency Management Committee.

There is a Bush Fire Coordinating Committee that includes a representative from the Forestry Corporation and representatives from the Office of Environment and Heritage (as it was) and a person nominated by the Minister of Environment. Although departmental names have changed since the RFS Act was written, there is a person who can represent NPWS on the Committee.

Further there is a ‘Bush Fire Management Committee for the whole of the area of any local authority for which a rural fire district is constituted’ (s 50). Those committees are to prepare (s 52):

(a) a plan of operations, and

(b) a bush fire risk management plan.

When exercising his or her powers under s 44, the Commissioner of the Rural Fire Service (s 44(3)):

… is not subject to the control and direction of the Bush Fire Co-ordinating Committee in exercising the Commissioner’s functions under this Division but must, in exercising those functions, take into consideration any relevant bush fire management plan and, in the case of managed land, any relevant plan of the authority responsible for the managed land of which the Commissioner is aware.

During a declared s 44 fire (s 45A)

The Commissioner may delegate the Commissioner’s functions under this Division (other than this power of delegation) to any person including an officer or member of a rural fire brigade, a person employed in Fire and Rescue NSW, a person employed in the Department of Industry [ie FCNSW] or a person employed in the Office of Environment and Heritage [ie NPWS].

Managed land is inter alia (s 100A) land:

(a) that is dedicated, or acquired for the purpose of dedication, under the Forestry Act 2012 or in respect of which the Forestry Corporation has obtained the benefit of a forestry right within the meaning of Division 4 of Part 6 of the Conveyancing Act 1919, or

(b) that is dedicated or reserved, or acquired for the purpose of dedication or reservation, under the National Parks and Wildlife Act 1974, or…

A fire control officer is appointed for each rural fire district (s 10). A fire control officer is

… responsible for the control and co-ordination of the activities of the Service in the rural fire district for which he or she is appointed as fire control officer.

He or she ‘has the right to use any fire fighting apparatus in the rural fire district other than fire fighting apparatus under the control of the authority responsible for managed land’ (s 38(2)(b)) and ‘must take or cause to be taken all necessary measures for suppressing fires in the rural fire district and protecting and saving life and property in case of fire;’ (s 38(2)(d)).  A fire control officer can only exercise those powers in s 38(2)(d):

… if the fire control officer (and any member of the Service assisting the fire control officer in the exercise of the function) complies with the conditions (if any) imposed on the exercise of the function specified in any relevant bush fire management plan or other relevant plan of the authority responsible for the managed land of which the fire control officer is aware.

A plan of management for land reserved as a national park must include provisions for ‘fire management’ (National Parks and Wildlife Act 1974 (NSW) s 72AA). It is a function of the Forestry Corporation (s 11(1)(f)) ‘subject to the Rural Fires Act 1997, to carry out measures on Crown-timber land for the protection from fire of timber and forest products on that land’.

Finally there is the NSW Bushfire Plan. That plan says, relevantly

22. There are two services responsible for fire suppression in NSW being the NSW RFS and FRNSW. These two agencies are supported by NPWS [National Parks and Wildlife Service] and FCNSW [Forestry Corporation New South Wales] known as fire-fighting authorities.

23. NSW RFS, FRNSW, NPWS and FCNSW maintain fire-fighting capability to meet anticipated needs, including trained personnel for fire-fighting and specialist roles, logistics and supply arrangements, fire-fighting equipment and qualified Incident Management personnel.

73. [A class one fire is defined as] ‘A bush fire under the control of the responsible fire authority*, whether or not incidental/low level assistance is provided by other agencies’. *’Responsible fire authority includes NSW RFS, FRNSW, NPWS and FCNSW’.

75. All personnel operating on a fire ground are subject to the direction of the IC, irrespective of their source agency. The IC is subject to the direction of the relevant fire service Commissioner through the established chain of command.

Discussion

The National Parks and Wildlife Service (NPWS) and the Forestry Corporation (FCNSW) are landholders and like any landholders they have an interest in protecting their property from fire. They have the powers of a natural person as well as the powers and duties imposed on them by legislation.  That means they must have fire management plans, they can fight fires on their land and if we are going to give respect to concepts of resilient communities and shared responsibility they have to be able to set priorities on their land (eg saving that historic shed is very important, that grove of trees less so etc).

The legislation provides for extensive planning for bushfire fighting from local to statewide. NPWS and FCNSW are required to be involved in that planning.   The Commissioner acting under s 44 must have regard to the management plans of FCNSW and NPWS whereas a fire control officer ‘and any member of the Service assisting the fire control officer’ must comply with those plans.

The various plans may determine who is the incident controller at a fire. ‘All personnel operating on a fire ground are subject to the direction of the IC, irrespective of their source agency’.  The IC need not come from the ranks of the RFS or be the local Fire Control Officer

The questions:

• Do land managers have any powers under any act to take control and manage a fire incident on their land (eg state forests or national parks)?

Yes, they have the power of occupier and the powers vested in them by the Forestry Act 2012 (NSW) or the National Parks and Wildlife Act 1974 (NSW). As occupier they can take control of the fire on their land as can anyone. The RFS may take over that effort but are not required to do so.  Unlike a famer, FCNSW and NPWS have the powers identified in the planning process in the state and local emergency management and bushfire plans. The point of those plans is to determine how fires will be managed and that can include appointing Forestry or NPWS staff as the IC.

• Can the NSW Rural Fire Service Commissioner delegate that authority to a land manager, and if so would that only apply in a section 44 declaration? I would assume this to be yes and if so, do the land managers have the same powers that RFS officers have under the Rural Fires Act 1997 or when the Premier declares a state of emergency?

Yes. During a s 44 fire the delegate can exercise the powers of the Commissioner.  A declaration of a state of emergency will not vest Forestry or NPWS staff with the powers of an RFS officer. During a declared state of emergency ‘the Minister may direct any government agency to do or refrain from doing any act, or to exercise or refrain from exercising any function’ (SERM Act s 36) so he or she could shift authority to FNCSW or NPWS.

• Does a NSW Rural Fire Service volunteer (in particular officers) have to take direction from a member of another agency if they fundamentally disagree with tactics? (this could be combatted with a liaison).

They do if that member is the IC or, in context, their decisions are being made in accordance with fire management plans for managed land. Even if the RFS members don’t ‘have’ to take direction, one should consider why that other agency wants to adopt the tactics they do. If we are talking about FCNSW or NPWS remember that their staff work in the forests and parks every day, they know the land and they know the priorities and their firefighting crews are also trained and experienced. It would be a ‘brave’ call (ala ‘Yes Minister’) to decide as the RFS to simply set aside their planning and experience and attempt to exercise control or worse, set off with two agencies fighting the same fire with different strategies in competition rather than cooperation.  I would suggest that the solution is ‘to go above the Divcoms head in order to raise issues or concerns via the chain of command.’

The final question for today asks about

… the Oaths and Affirmations Act 2018 (VIc) specifically section 30 and who is an authorised witness.

I know there has been some discussion amongst my fellow colleagues around the interpretation of

Permanent employee with 5 or more years of continuous service who is not otherwise specified, if employed at one of the following:

State

Territory

State authority

Territory authority

Local government authority

The questions are:

• Does a paramedic or staff member of Ambulance Victoria who has been employed on a permanent basis for longer than 5 years meet this criteria?
• Are paramedics or staff members of Ambulance Victoria able to certify documents or witness statutory declaration?

I rang the Department of Justice and they actually could not give me an answer.

I have answered a similar question for members of the Victoria SES – see Can members of Victoria’s emergency service administer oaths and declarations? (March 19, 2019).  In that post I noted that there is both Commonwealth and Victorian law on this subject.

To understand who can make a statutory declaration under Victorian law one needs to look at the Oaths and Affirmations Act 2018 (Vic) and the Oaths and Affirmations (Affidavits, Statutory Declarations and Certifications) Regulations 2018 (Vic). The Act, s 19, lists who can take an affidavit.  That list includes ‘a person employed under Part 3 of the Public Administration Act 2004 with a prescribed classification’ and ‘any prescribed person or person who is a member of a prescribed class of persons’.

To see who is ‘prescribed’ we look to the regulations.   Regulation 5 says that authorised affidavit takers include a ‘a public service employee with a classification of level 2 or equivalent or above, however described’.

A person authorised to take a statutory declaration includes an ‘authorised affidavit taker’ as well as ‘a person authorised by or under a Commonwealth Act to take a statutory declaration under that Commonwealth Act’ (s 30). The Statutory Declarations Act 1959 (Cth) and the Statutory Declarations Regulations 2018 (Cth) Schedule 2, Part 2 cl 31 says that, amongst others, a person authorised to take a statutory declaration includes

Permanent employee of:

(a) a State or Territory or a State or Territory authority…

with 5 or more years of continuous service…

A number of registered health professionals including Chiropractors, Dentists, Medical practitioners, Midwives, Nurses, Occupational therapists, Optometrists, Pharmacists, Physiotherapists and Psychologists can take statutory declarations (Statutory Declarations Regulations 2018 (Cth) Schedule 2, Part 1) but paramedics have not yet been added to that list.

So paramedics can witness statutory declarations or take affidavits in Victoria if they are ‘a permanent employee of a State or Territory or a State or Territory authority…with 5 or more years of continuous service’ (Statutory Declarations Regulations 2018 (Cth) Schedule 2, Part 2, cl 31), ‘a person employed under Part 3 of the Public Administration Act 2004 with a prescribed classification’ (Oaths and Affirmations Act 2018 (Vic) s 19) or ‘a public service employee with a classification of level 2 or equivalent or above’ (Oaths and Affirmations (Affidavits, Statutory Declarations and Certifications) Regulations 2018 (Vic) r 5).

Paramedics, although registered health professionals do not meet any of those definitions by virtue of their registration. It follows that paramedics, per se, are not authorised to take affidavits or statutory declarations, but what about those paramedics that are employed by Ambulance Victoria?

Ambulance Victoria is established by the Ambulance Services Act 1986 (Vic), in fact there are a number of ambulance services (Schedule 1) that collectively are known as ‘Ambulance Victoria’ (s 3).  Each ambulance service has a board (s 17).  An ambulance service created under the Act (s 23(2)):

(a) is a body corporate having perpetual succession;

(b) is capable of acquiring, holding and disposing of property;

(c) is capable of suing and being sued;

(d) is to have a common seal;

(e) is to be governed by a board of directors;

(f) is capable of doing and suffering all acts and things that bodies corporate may by law do or suffer.

Each ambulance service is therefore a separate legal entity – separate from each other and from the government of Victoria. The ambulance services are however ‘public entities’ for the purposes of the Public Administration Act 2004 (Vic). The public service is made up of people employed under Part 3 in Public Service Bodies.  Ambulance services may be public entities but they are not public service bodies. Employees may be transferred between public service bodies and public service entities (s 28) but that does not make them the same thing.  Part 5 of the Act deals with public entities again confirming that public entities and public service bodies are not the same thing and by inference, employees of public entities are not employees of the public service.

I would infer therefore, that an employee of Ambulance Victoria is an employee of a public entity but is not ‘‘a person employed under Part 3 of the Public Administration Act 2004…’ or ‘a public service employee …’.

Are they a ‘permanent employee of a State or Territory or a State or Territory authority’ (Statutory Declarations Regulations 2018 (Cth) Schedule 2, Part 2, cl 31)?  I would suggest they are not an employee of the State as each ambulance service is its own separate legal entity.   What is a ‘state or territory authority’ is not defined in the Commonwealth Act or regulation.  A Commonwealth authority (r 5) includes ‘Commonwealth entity within the meaning of the Public Governance, Performance and Accountability Act 2013’.  As noted, the various ambulance services that make up Ambulance Victoria are ‘public entities’ so by analogy, they would be a ‘state authority’.

As noted in my earlier post, affidavits and statutory declarations are important and it is more than just witnessing a person’s signature. Because of their importance it is an offence to take affidavit if not authorised affidavit taker (Oaths and Affirmations Act 2018 (Vic) s 22) and it is an offence to take statutory declaration if not statutory declaration witness (s 31). Who would want to risk that on the basis that they will, if prosecuted, argue that Ambulance Victoria is a ‘public authority’?

It’s not surprising that the Department of Justice could not give an answer as they wouldn’t know the answer to questions about paramedic employment or the status of Ambulance Victoria.

Conclusion

In the absence of a definition of ‘state or territory authority’ in either the Statutory Declarations Act 1959 (Cth)  or the Statutory Declarations Regulations 2018 (Cth) the cautious answer has to be that an employee of Ambulance Victoria is not an authorised affidavit taker or statutory declaration witness and are not, therefore, authorised certifiers authorise to certify copies of documents (Oaths And Affirmations Act 2018 (Vic) s 39).

That advice should be tested with your local HR officials and/or the Victorian Public Sector Commission to confirm paramedics are not employed under Part 3 of the Public Administration Act 2004 (Vic).

Subject to that specialist advice on employment status, my view is that paramedics, simply by virtue of their registration, as well as paramedics who are staff members of Ambulance Victoria are not able to certify documents or witness statutory declarations in Victoria.

These two questions came as comments on my post RFS donations and writing new law (February 26, 2020) but I thought they warranted their own response rather than being lost and perhaps unseen in the comments.

The first comment was:

If NSW change the legislation, who then decides where & how the money is allocated? Can the NSW legislation enforce donations to be made outside of NSW?

The answer is that the Bill proposed by the Greens would empower the trustees to distribute money in ways not intended by the trust deed, but it would not compel them to do so. The answer to the question ‘who then decides where & how the money is allocated?’ is ‘the trustees’.    If the Parliament directed the trustees, the Parliament would in fact be commandeering private property and that creates its own problems.

It has to be understood that there is the Rural Fire Service created by the Rural Fires Act.  That service is a government operated service. The Rural Fire Service Donations and Brigades Fund is not the RFS, it is a separate entity. It receives money that people want to donate and it can only spend that money for the benefit of the RFS, but it is not the RFS.  It is its own legal entity. The parliament can authorise the trustees to spend their money, but it cannot direct them.  That then leads to the next and more detailed comment from the Draggacannalong Brigade, next brigade over from Kickatinalong (and the Kickatinalong brigade is the subject of much discussion on this blog).  Matt, the captain of the Draggacannalong Brigade says:

I have just begun looking into this “Trust” as the initial request for funding applications has been advertised. The criteria is very wishy washy and contradictory after a bit of a look into it and asking for information about the Trust many things raised my concerns.

1. I have been a RFS Member for ten years, of that Snr Dep Cpt for 2 then to date Cpt for 2 and have NEVER been made aware of this Trust or the ability to make application to access this funding?
2. On investigation the Trustees are made up of Two RFS Staff and Four Members of the RFSA All of whom are appointed at the sole discretion of the RFS Commissioner for perpetuity.

Things seem to look like a very closed shop environment particularly that the RFSA to me appears to be a retirement home for washed up RFS staff.

Given that we are talking about an extremely large sum of private citizens money the lack of transparency concerns me very much.

If anyone would be willing to go into the details of my concern with me I would greatly appreciate it as I am by no means a scholar just a humble smoke sucking hillbilly from Draggacannalong.

I am sure you have been ‘made aware … the ability to make application to access this funding’ because everyone’s in a new world.  The purpose of the trust was to provide a central fund with tax deductible status.  The 2017-2018 annual report says (p. 4)

The purpose of the Trust is to make available to brigades the ability to accept tax-deductible donations, both in person and online, with as little administrative burden as possible. It was established and is operated solely for the purpose of supporting the volunteer-based fire and emergency service activities of the brigades

As the RFS says (https://www.rfs.nsw.gov.au/volunteer/support-your-local-brigade) ‘Some brigades may accept donations or gifts which can be tax deductible for the donor’ but many cannot. The trust allows people to make a donation to their brigade, the donation is received by the trust and ‘earmarked’ for the nominated brigade. The donor gets a receipt that allows them to claim a tax deduction. The captain of the nominated brigade can ask the trustees to spend the donated money and provided the purpose meets the terms of the deed, the trustees could spend the money accordingly – ie to buy equipment, pay for training or help meet the administrative expenses.

I’m sure that given the annual income of the trust was $1m (give or take) and most of those are donations for particular brigades, the issue of calling for applications of what to do with the money has never arisen.

And it’s true that the trustees are two members of the RFS staff and four members of the RFS three of whom are, in their profiles, also identified as members of the RFSA (2017-2018 annual report p. 7).  That may indeed appear as a ‘a very closed shop environment … Given that we are talking about an extremely large sum of private citizens money’ but it has to be remembered that before January 2020 the were not ‘an extremely large sum of private citizens money’, rather there were reasonably small donations. The 2017-18 annual report says that in that year the trust received $546,035.00 donated to individual brigades and $222,009.00 for the central fund.  They noted (p. 6):

Two large donations were received during the reporting period:

› $25,000 received on 23 April 2018

› $20,000 received on 26 June 2018

An unsolicited donation of $52m plus other donations that have come in this summer are clearly beyond the trust and the trustee’s experiences or expectations.  They must be on a steep learning curve to work out what this requires them to do and no doubt some of that trust money will need to be spent on legal and accounting advice.  Asking trustees to deal with this sum of money and the unstated and misplaced expectations of the donors must indeed be a large burden.  That the trust is not well set up to manage such a large inflow of money – coupled with moral expectations – is hardly surprising.

The trust is now a multi-million-dollar exercise. That the set up that run a small donations fund is not adequate for managing both the donations and then the inevitable investment income and finding new ways to spend the money should not be a surprise.  Re-thinking how to run the trust is, I imagine, occupying the minds of the trustees and the RFS executive as well as trying to work out if they can honour Ms Barber’s ill-informed promise.

 

Today’s question revisits (NSW) paramedics treating those who cannot or will not consent to treatment. I’m asked:

Firstly where is our duty of care defined?  Is it legislation or is it something that we have adapted.  If so what is ambulance’s definition or guidelines?  We all say it, but legally what are our obligations in relation to this.

Secondly now this relates to competency and capacity.  I understand that we have a protocol A3 however it only states that the patient must receive; believe; retain and explain.  There is no formal questioning/tool.  My question here is if we identify through our questioning that the person is incapable of doing this where is our ‘power’ or ‘legislation’ to detain or remove this patient and take them to hospital.  Does it fall under ‘duty of care’ and if so I’m concerned that I have no guidelines as to what means ie force if necessary, I am able to use, that would not be deemed as assault.  My other problem with receive; believe; retain and explain is the intoxicated pt.  We have no definition of intoxicated or ‘test’ to define when one is.

The NSW Liquor Act 2007 (section 5) states that a person is intoxicated if

• The person’s speech, balance, co-ordination or behaviour is noticeably affected and
• It is reasonable in the circumstances to believe that the affected speech, balance, co-ordination behaviour is the result of the consumption or liquor.

So most of this comes about in this scenario:

Intoxicated person at a licensed premise, falls from standing height onto tiled floor, probably as a result of their intoxication and suffers a head injury.  They are very unsteady on their feet.  In my opinion they are intoxicated, evidenced by slurred speech, unsteady gait, you can smell it on their breath and their eyes are blood shot.  When you attend the premises the person is up, stumbling around and can answer your questions however you know that due to their level of intoxication that they probably don’t really understand the ramifications of what their injury could manifest into.  They are by themselves no one is available to pick them up and they reside at home alone.  They allow you to examine them, all their observations are within the flags. They have an obvious haematoma to their head as a result of the fall.  In the past I have utilised police under the Intoxicated Persons Act as a police officer may detain an intoxicated person found in a public place who is:

• behaving in a disorderly manner or in a manner likely to cause injury to the person or another person or damage to property.
• In need or physical protection because the person is intoxicated

This Act then goes onto to state that an intoxicated person detained by a police officer under this section is to be taken to, and released into the care of a responsible person willing immediately to undertake the care of the intoxicated person.

It gets a bit tricky however if the person is now no longer in a public place ie at home or friends party and the other people are intoxicated and there is no identified ‘responsible person’.  What power and/or legislation do we have to remove that person, due to them not meeting competency and capacity?  Can we ‘place’ them on the stretcher, would this be viewed as assault?  What if they become violent, can we sedate them?  What if we sedate them and they suffer an arrest?   I know that some people have been putting Mechanical Restraint Devices (MRD) on people to restrain them in order to protect the patient from harming themselves and to protect others however we don’t have legislation for this unless we are acting under the mental health act ie completing a section 20 which if the patient was only intoxicated, this act is not appropriate. I know this sounds extreme and in most instances’ communication/police presence etc will get you over the line however we all know there will be that case! I don’t want to be the one where it ‘goes bad’ and I don’t really understand my rights/obligations other than, I had a duty of care.

More to this what now if the person is drug effected.  Police could possibly detain the person under common law power for Breech of the Peace or LEPRA but again these powers mainly focus on public place.  We have the Medical Disturbance M28 protocol however again my problem with this I think might be that there is no legislation or is there and I just don’t know it.   If they don’t meet competency and capacity and they are in their home, what power/legislation do I have to remove them, sedate or restrain them if they are not compliant or become defiant and aggressive.  With mental health for instance if we have the power to take someone’s liberty away, search and restrain them if necessary as it is legislated, why don’t we have it for behavioural and/or intoxicated people that don’t meet competency and capacity especially if they are not in a public place.

Sorry I know it’s a lot but now that we are registered I’m wondering if our protocols are enough to rely on legally.  I don’t want to ever test it either hence all the questions and confusion.

Discussion

There is a lot there; we’ll try to go through it step by step.

Firstly where is our duty of care defined?  Is it legislation or is it something that we have adapted.  If so what is ambulance’s definition or guidelines?  We all say it, but legally what are our obligations in relation to this.

Fundamentally the concept of duty of care is a common law concept with some modification or codification in the Civil Liability Act 2002 (NSW).  Fundamentally a health care professional has a duty to exercise their profession with reasonable care.  What that means will depend on all the circumstances.  In Rogers v Whitaker (1992) 175 CLR 479 Mason CJ, Brennan, Dawson, Toohey and Mchugh JJ said (at [5]-[6]):

The law imposes on a medical practitioner a duty to exercise reasonable care and skill in the provision of professional advice and treatment. That duty is a “single comprehensive duty covering all the ways in which a doctor is called upon to exercise his skill and judgment”; it extends to the examination, diagnosis and treatment of the patient and the provision of information in an appropriate case. It is of course necessary to give content to the duty in the given case.

The standard of reasonable care and skill required is that of the ordinary skilled person exercising and professing to have that special skill…

Insert ‘paramedic practitioner’ instead of ‘medical practitioner’, and ‘paramedic’ instead of ‘doctor’ and it defines the paramedic’s duty of care.

As to competence and capacity, at [14] their Honours said ‘except in cases of emergency or necessity, all medical treatment is preceded by the patient’s choice to undergo it.’  A patient can refuse treatment even if that will lead to significant, permanent harm or death. A person is competent to consent, or refuse consent, to medical treatment if he or she is able to understand the nature of the suggested treatment, weigh up the consequences of and communicate his or her decision (In Re C (Adult: Refusal of Treatment) [1994] 1 WLR 290; Gillick v West Norfolk and Wisbech Area Health Authority [1986] 1 AC 112, 169).

If a person is not competent they cannot give, nor refuse, consent to treatment. The ‘‘power’ or ‘legislation’ to detain or remove this patient and take them to hospital’ is found in the common law of necessity (see The doctrine of necessity – Explained (January 31, 2017)).  In In Re F [1990] 2 AC 1 Lord Goff said:

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

As Lord Goff said ‘The principle is one of necessity, not of emergency’.  He gave these examples:

Take the example of a railway accident, in which injured passengers are trapped in the wreckage. It is this principle which may render lawful the actions of other citizens – railway staff, passengers or outsiders – who rush to give aid and comfort to the victims: the surgeon who amputates the limb of an unconscious passenger to free him from the wreckage; the ambulance man who conveys him to hospital; the doctors and nurses who treat him and care for him while he is still unconscious. Take the example of an elderly person who suffers a stroke which renders him incapable of speech or movement. It is by virtue of this principle that the doctor who treats him, the nurse who cares for him, even the relative or friend or neighbour who comes in to look after him, will commit no wrong when he or she touches his body.

The two examples I have given illustrate, in the one case, an emergency, and in the other, a permanent or semi-permanent state of affairs. Another example of the latter kind is that of a mentally disordered person who is disabled from giving consent. I can see no good reason why the principle of necessity should not be applicable in his case as it is in the case of the victim of a stroke. Furthermore, in the case of a mentally disordered person, as in the case of a stroke victim, the permanent state of affairs calls for a wider range of care than may be requisite in an emergency which arises from accidental injury.

If the patient is not competent a paramedic (or a doctor, or a first aider) can provide treatment that is reasonable in the circumstances and in the patient’s best interest. That can include taking the person into care and transporting them to hospital.

Intoxication does not equate to incompetence (see Alcohol and refusing treatment (April 3, 2014). People may make decisions when intoxicated that they would not make when sober but that does not mean their decision was not binding on them and others (see Neal v Ambulance Service of New South Wales [2006] NSWCA 102 (discussed at Ambulance Service v Neal ( January 29, 2009)).

It should be noted that the Intoxicated Persons Act 1979 (NSW) has been repealed and its provisions moved to the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) ss 205-210 (the ‘LEPRA’ Act).  Under LPRA an ‘intoxicated person’ is ‘a person who appears to be seriously affected by alcohol or another drug or a combination of drugs’.  Section 206 says:

(1) A police officer may detain an intoxicated person found in a public place who is–

(a) behaving in a disorderly manner or in a manner likely to cause injury to the person or another person or damage to property, or

(b) in need of physical protection because the person is intoxicated.

My correspondent suggests that drug intoxication is different. They say ‘More to this what now if the person is drug effected. Police could possibly detain the person under common law power for Breech of the Peace or LEPRA but again these powers mainly focus on public place.’  Whether they are intoxicated by drugs or alcohol makes no difference.  Being drug affected is not a ‘breach of the peace’ it’s their behaviour that’s relevant. Some drug affected people may be breaching the peace, some may be unconscious. As LEPRA says, relevant intoxication is the product of alcohol or drugs or a combination of those things.

In any event the provisions in LEPRA, as noted, only apply in a public place, they do not apply to a person who is intoxicated at home.  So ‘What power and/or legislation do we have to remove that person, due to them not meeting competency and capacity?’ The answer is, again, the common law of necessity.  What power do you have to remove an unconscious person? Or a child who is ‘home alone’? The answer to all those questions is the common law of necessity.

It’s true that the Mental Health Act is not appropriate. Intoxication is not a mental illness and the aim is to take the person to an emergency department not a mental health facility – see Mental Health Act 2007 (NSW) s 20 – a summary of my current thinking (October 7, 2019; Trauma or mental illness – WA (June 19, 2019)).

Conclusion

The critical point of this question is this:

With mental health for instance if we have the power to take someone’s liberty away, search and restrain them if necessary as it is legislated, why don’t we have it for behavioural and/or intoxicated people that don’t meet competency and capacity especially if they are not in a public place.

The answer is that a person who is mentally ill may still be competent. The point of the Mental Health Act 2007 (NSW) where it relates to involuntary treatment is to allow treatment to be given to a person who is competent but who is refusing treatment.  It is indeed a deprivation of liberty.

Where a person is intoxicated there is no provision for treatment against the patient’s will.  If they remain competent they can refuse treatment even if that is not in their best interests (see Ambulance transport against patient’s will (August 16, 2017)).  If they are not competent then the justification for treatment is the same justification as allows paramedics to treat any person who cannot consent whether it’s due to trauma or intoxication.  If a paramedic feels confident they can treat a person who is unconscoious or incompetent because of a head injury sustained in a motor-cycle accident then they should feel confident that they have the same authority to treat a person who is not competent due to intoxication. Where a person is not competent a paramedic can provide care that ‘a reasonable [paramedic] would in all the circumstance take, acting in the best interests of the assisted person’.

 

 

Today’s question is about:

…  searching patients (and utilisation of a metal detection wand) in Emergency Departments … and whose responsibility is it.

Largely speaking across … [South Australia] (at larger sites), if there is metal detection required as part of a search, then contracted site security will be called to undertake this as part of their Authorised Officer powers under Section 43 of the Health Care Act 2008 (SA).

Clinical staff at one site have undertaken the use of metal detection for searches and my concern is that clinicians don’t have authority under the Health Care Act to search (not an authorised officer), but do, in more limited circumstances under Section 56 of the Mental Health Act 2009 have the power to search.

Views expressed by clinicians whilst they might support the shift in responsibility to security to perform this… that everyone needs to understand that the liability for any undiscovered weapon would wholly shift to security also.

My view is that this is a naive and uninformed statement/rationale.

My views are that;

• Clinical staff in ED have narrow Authorised Officer powers and only under the Mental Health legislation to search patients.
• Clinical staff are not Authorised Officers under the Health Care Act.
• Contracted Site Security staff are authorised officers under the Health Care Act and have broader powers to search.
• Searching of persons for safety reasons, largely and more closely aligns to a security officer role than a clinician.
• Metal detection wands are largely a tool of trade for security personnel than a clinician.
• Any searching should be a collaborative approach – Clinician identifies a need to search (safety reasons) and seeks assistance of Security to undertake a search and lawfully seize any items of concern.

To state that liability shifts to security from clinical staff if security do the searches is a baseless, redundant statement.

• Metal detection with a wand is but a part of the search process (observation, pat down/frisk, inspection, questioning etc).
• If a ‘trained’ person uses a contemporary calibrated tool of the trade in an appropriate manner with good intent, then it is irrelevant whether they don’t locate a ‘concealed’ weapon / contraband and harm is brought to those around by the person carrying the weapon.

There is no ‘shift’ in liability from one part of the workforce to another.

I generally agree with my correspondent.

The Health Care Act 2008 (SA) s 43 says:

(1) This section applies to a person—

(a) who is present at a site at which an incorporated hospital provides any health services; and

(b) who— …

(ii) is considered by an authorised officer on reasonable grounds to be a threat to another person at the site; or

(iii) is suspected by an authorised officer on reasonable grounds of being unlawfully in possession of an article or substance; or

(iv) without limiting a preceding subparagraph, is suspected by an authorised officer on reasonable grounds to have committed, or to be likely to commit, an offence against any Act or law.

(2) An authorised officer may exercise 1 or more of the following powers in relation to a person to whom this section applies:…

(b) the authorised officer may require the person to submit to a search of his or her clothes, or of anything in his or her possession;

(c) the authorised officer may seize anything in the person’s possession that the authorised officer believes on reasonable grounds—

(i) could be used to harm a person on the site; or

(ii) constitutes an article or substance the possession of which is unlawful in the circumstances; …

(8) In this section—

“authorised officer” means an authorised officer appointed under a by-law made by an incorporated hospital under this Division.

Under the Mental Health Act 2009 (SA) s 56(3)(f), an:

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

The definition of authorised officer under that Act is much wider. Under the Mental Health Act an authorised officer is (s 3)

(a) a mental health clinician; or

(b) an ambulance officer; or

(c) a person employed as a medical officer or flight nurse by the Royal Flying Doctor Service of Australia (Central Operations) Incorporated or the Royal Flying Doctor Service of Australia (South Eastern Section); or

(d) a person, or a person of a class, approved by the Chief Psychiatrist, by notice in the Gazette, for the purposes of this definition; or

(e) any other person, or person of a class, prescribed by the regulations for the purposes of this definition;

It should come as no surprise that a condition that must be present before the Mental Health Act is relevant is that there must be a diagnosis of mental illness (s 56(1)(a) and (b)) or (s 56(1)(c)):

it appears to an authorised officer that—

(i) the person has a mental illness; and

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

No doubt there may be a desire to search people who are not mentally ill in which case the Mental Health Act is irrelevant.

Discussion

First, it is not self-evident that contracted site security are, or clinicians are not, authorised officers under the Health Care Act 2008 (SA).  That Act does not say who are ‘authorised officers’, rather it leaves it up to ‘an incorporated hospital’ to determine, via its by-laws, who are authorised.  They may have forgotten to authorise on-site security; they may have chosen to include clinicians in the list.

Second, all of this begs the question of whether authority is required to conduct a metal detector search and, if it is, whether the Health Care Act 2008 (SA) s 43 permits a metal detector search.  Section 43 permits ‘a search of his or her clothes, or of anything in his or her possession’.  The reason such permission is required is because touching a person without lawful justification or excuse is a battery. Touching someone’s clothing (eg a jacket they are not wearing) would be a trespass to goods.  Because the sort of search that may be anticipated by s 43 involves actual contact with a person or their property lawful authority is required.  Waving a wand over someone does not however touch them so it is not a battery or trespass. It may be that s 43 does not include a metal detector search as no authority is required.

But, countering that position is the Summary Offences Act 1953 (SA) s 66R.  That section says:

(1) A police officer may, for the purpose of detecting the commission of an offence under section 66Q or Part 3A, carry out a search in relation to—

(a) any person present within a declared public precinct; and

(b) any property in the possession of such a person.

(2) The following provisions apply to a search carried out in accordance with this section:

(a) the search must, in the first instance, be a metal detector search;…

(3) In this section—

“metal detector search” means a search conducted—

• using only a metal detector of a kind approved by the Commissioner; and
• in accordance with any directions issued by the Commissioner.

Clearly the Parliament did not think police could perform a metal detector search on the basis that there was no trespass and have set out a system to authorise those searches. Given the terms of the Summary Offences Act one cannot, with confidence, infer that either the Health Care Act or the Mental Health Act authorise a metal detector search without consent. But an authorised officer could seek permission to conduct a metal detector search with the ‘backup’ that if the person does not consent then the authorised officer can ‘require the person to submit to a search of his or her clothes, or of anything in his or her possession’.

‘To state that liability shifts to security from clinical staff if security do the searches is a baseless, redundant statement’ is correct.  The hospital is the person conducting the business or undertaking and the occupier of the premises and the employee of the staff.  It is the hospital that has the duty to ensure, so far as is reasonably practicable, that premises are safe. Having said that, it is hard to attribute common law responsibility on defendant A for criminal conduct by B (Modbury Triangle Shopping Centre Pty Ltd v Anzil [2000] HCA 61).

If a person manages to get a weapon into a hospital and do damage that person is primarily responsible for that conduct. As an employer the hospital will be liable to meet workers’ compensation obligations for any injured employee.  Anyone who wanted to sue in negligence they would have to prove that the hospital failed to take reasonable steps to secure the hospital noting that hospitals, in particular emergency departments, have to be open to the public and that hospitals and health care staff have to have a therapeutic relationship with their patients.  Having a doctor or nurse search a patient particularly one in extremis may not help that relationship.  What is ‘reasonable’ has to consider all those issues.  Where security has been contracted out, then there could be issues where the alleged negligence is with the security guard for failing to exercise his or her duties as required by the hospital.

Even if it was true ‘that everyone needs to understand that the liability for any undiscovered weapon would wholly shift to security also’ why clinicians would not welcome that.  Why would a clinician want to take on the occupiers responsibility to undertake a security search?

Conclusions

Let me return to my correspondent’s list:

• Clinical staff in ED have narrow Authorised Officer powers and only under the Mental Health legislation to search patients. That may or may not be true. It depends on the local hospital by-laws.
• Clinical staff are not Authorised Officers under the Health Care Act. That may or may not be true. It depends on the local hospital by-laws.
• Contracted Site Security staff are authorised officers under the Health Care Act and have broader powers to search. That may or may not be true. It depends on the local hospital by-laws.
• Searching of persons for safety reasons, largely and more closely aligns to a security officer role than a clinician. I agree with that.
• Metal detection wands are largely a tool of trade for security personnel than a clinician. I agree with that.
• Any searching should be a collaborative approach – Clinician identifies a need to search (safety reasons) and seeks assistance of Security to undertake a search and lawfully seize any items of concern. I agree with that.

To state that liability shifts to security from clinical staff if security do the searches is a baseless, redundant statement. –          I agree with that.

• Metal detection with a wand is but a part of the search process (observation, pat down/frisk, inspection, questioning etc). I don’t think that is true. The Summary Offences Act 1953 (SA) s 66R suggests that, at least for police, a metal detection search is something ‘special’. It is not at all clear that Health Care Act 2008 (SA) authorises a metal detection search though an authorised person could ask a person to submit to a search and if they don’t then require them to submit to a personal search. 
• If a ‘trained’ person uses a contemporary calibrated tool of the trade in an appropriate manner with good intent, then it is irrelevant whether they don’t locate a ‘concealed’ weapon / contraband and harm is brought to those around by the person carrying the weapon. Where the conduct of the search is ‘reasonable’ then it’s correct that a failure to detect a weapon or contraband would not be negligent.

There is no ‘shift’ in liability from one part of the workforce to another. That’s true, the ultimate responsibility for the safety will lie with the hospital. The hospital via its by-laws could make clinicians, or security, or both authorised officers. It may, on a risk assessment, determine that having on site security or security with a metal detector is not required.  The ultimate question, should a person in the hospital be injured by a person with a weapon, will be did the hospital take reasonable steps to prevent that outcome.  If clinicians, or security, are tasked with the search there may be questions of whether that tasking was reasonable and what training they had. Who is liable for what depends on all the circumstances.

If I was a clinician, I would not want to be doing that sort of searching, it seems to be an antithesis to the clinical relationship.  Hospitals probably don’t ask security to do triage, why ask clinicians to do security?

 

 

 

 

In Charter Hall Real Estate Management Services (NSW) Pty Limited v State of New South Wales [2020] NSWCA 26 (25 February 2020) the NSW Court of Appeal upheld a decision of the NSW Supreme Court finding that the defendant, as occupier of a building that had negligently exposed a firefighter to injury, was liable to indemnify the Brigades’ workers compensation insurer.

The incident occurred on 22 January 2007 (ie 13 years before this judgment) when NSW Fire Brigades (as they then were) were called to an alarm of fire at a shopping centre in Orange in the NSW Central West. His Honour, White JA said (at [6)]:

Mr McMullen was injured when he attended the shopping centre in response to the fire alarm. The fire panel indicated that the alarm was triggered from an air-conditioning unit on the roof of the shopping centre. Access to the roof was obtained through a roof access door. A security guard accompanied Mr McMullen and the other fire-fighter to the roof access door. The access door was at the top of a ladder. The ladder was variously estimated to be about eight feet, nine to ten feet, or 12 feet high. It had a metal locking bar in front of it described in more detail below. The bar was raised and the door opened to permit Mr McMullen and his co-worker to reach the roof to check the air-conditioning unit. Mr McMullen was satisfied that there was no fire in the air-conditioning unit and that it was a false alarm. When leaving the roof the other fire-fighter descended the ladder first. Mr McMullen followed. The primary judge described the circumstances of the injury as follows (at [22]):

“Before descending, Mr McMullen faced the ladder, put his foot on the top rung and held onto both sides of the ladder. On his way down Mr McMullen felt himself knock the locking bar with his elbow and then something hit his neck. He stopped where he was and felt pain in his neck. He realised that he had been struck by the locking bar. He took hold of the locking bar, pushed it back up into place and continued down the ladder. Mr McMullen described the pain as ‘pretty severe’ and gave evidence that he had never felt pain in his neck like that before.”

The judge in the District court found that the defendant in that court, the appellant in the Court of Appeal, Charter Hall Real Estate Management Services had breached the duty of care it owed to Mr McMullen.  At [8] White JA said:

… the primary judge found that the appellant, through one of its employees, a Ms Chapman, had actual knowledge of the risk of injury posed by the absence of any restraint to prevent the locking bar from falling onto a person using the ladder to access the door to the roof of the shopping centre. That was because a Mr Willox, who was employed by a third party to act as a security guard for the shopping centre and had performed that task for some 15 years, had reported to Ms Chapman on two occasions that the locking bar had fallen on him. The primary judge found that the risk involved a risk of death or serious injury and it was possible that the locking bar could fall onto a person using the ladder resulting in a fall of 12 feet to the floor at the bottom of the ladder. It was reasonably foreseeable that the locking bar could be disturbed by someone dislodging it from its resting place with a body part or an item of clothing. Simple and inexpensive precautions were available to avoid the risk of harm. The primary judge said (at [147]):

“A mechanism to secure the locking bar when it was leaned against the door jamb could have been obtained from a hardware store and installed by a tradesman in less than 30 minutes. A sign warning of the risk and advising that the locking bar should be held whilst descending the ladder could have been affixed in the area of the ladder at minimal cost.”

In simple terms the appellant argued that the trial judge was wrong in finding that there had been a breach of duty by the appellant and also for finding that there had been no negligence by either NSW Fire Brigades and fire fighter McMullen (see [11]).

White JA upheld the finding that the appellant had actual knowledge about the risks associated with the access door. There were at least two prior reports of the locking bar becoming dislodged and but for sheer good luck, not striking a person descending the ladder ([31]-[48]). Even without those actual events, the risk was clear. The door needed to be latched open otherwise there was a risk it would blow closed and dislodge the locking bar. The last person going down the ladder had to unlatch the door so it could be closed but then was at risk of the door blowing shut and the locking bar falling. If the locking bar did hti a person on the ladder there was a risk of them falling the 12 feet to the ground. The appellant ‘… ought to have known that the condition of the ladder, access door and locking bar was dangerous’ ([49]).

With respect to alleged contributory negligence by firefighter McMullen, White JA said (at [84]-[86]):

The appellant submitted that Mr McMullen was fully aware of the locking bar. He said he had undertaken a risk assessment on both the way up and the way down and that the locking bar fell only because he knocked it with his elbow. The appellant submitted that contributory negligence should have been assessed at 20 per cent.

It was not put to Mr McMullen in cross-examination that he was careless in knocking the bar when descending the ladder.

Mr McMullen was fully kitted out with breathing apparatus, helmet and sledge axe or Halligan tool … His accidentally knocking the locking bar (presumably at its lower point where it obtruded beyond the vertical towards the ladder) was accidental inadvertence not amounting to contributory negligence…

Macfarlan JA and Simpson AJA agreed with White JA. The appeal was dismissed with costs.

Discussion

Although not discussed in these terms, the case confirms – again – that there is no equivalent of the ‘firefighters’ or ‘firemens’ rule in Australia (see Court of Appeal upholds verdict in favour of injured Queensland police officer/rescuer (December 18, 2019)’ see also see http://www.firelawblog.com/category/firemens-rule/).  To quote from the decision the subject of that earlier post ([Name Redacted] v AAI Limited [2019] QSC 7, at [30]):

The authorities to which reference has been made establish that, provided the usual principles that govern the right of rescuers to recover damages for injuries are satisfied, the fact that a rescuer happens to be a police officer [or fire fighter] does not constitute a legal bar to liability whether the injury is physical (Haynes v Harwood), psychiatric (Jausnik) or both (Hirst).

In this case, as the court noted (at [68]):

Section 10 of the Occupation Health and Safety Act 2000 (NSW) as in force on 22 January 2007 required that a person who had control of premises used by people as a place of work must ensure that the premises were safe and without risk to health. Officers of a fire brigade were called to the premises as a place of work.

The fact that firefighters were there to do dangerous work did not relieve the defendant of their obligations.  The premises were unsafe.

It is true that this was not Mr McMullen suing the appellant. The plaintiff in the District Court was the State of New South Wales seeking to recover the money that it had paid to meet its workers’ compensation obligations. But the state was suing the defendant in negligence and it could only win that case if it could show that the defendant had breached its duty of care to the injured worker – not that the defendant/appellant owed some separate duty to the employer not to expose them to workers’ compensation liability.  In effect the State of New South Wales had to run the case the injured worker could have run should he have elected to do so (see [7]).

Conclusion

The case confirms that the occupier of premises where a fire or emergency service is called is under a duty to take reasonable care to ensure the premises are safe. In this case it was not a fire or the risks of firefighting that were in issue, it was the design of an access door that the firefighters and others had to use to access the roof. The design created its own dangers which the management had been warned about and which was obvious in any event. Their failure to ensure the access to and egress from the roof was safe was negligent.

As the negligence caused injury the negligent tortfeasor was liable to make good the losses and it is irrelevant that the person injured was a firefighter or rescuer.

 

 

I’ve written on the massive fundraising that was lead by Celeste Barber and led to a $51m donation to the NSW Rural Fire Service Brigades and Donations Fund – see

• Disaster fundraising for government or charity? (January 5, 2020);
• Diverting Facebook donations (January 6, 2020);
• Further complicating the issue of diverting Facebook donations, and perhaps an ‘out’
  (January 7, 2020);
• Donations to RFS trust on hold (January 13, 2020);
• Trust operations 101 (January 16, 2020); and
• RFS and donated funds (January 24, 2020).

In those various posts I suggested that the three ways that I (and colleagues) could see to distribute the money across the nation and across causes was (Trust operations 101 (January 16, 2020)) either

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)).

There have been reports that the RFS are intending to approach the Supreme Court (see Lachlan Moffet Gray, ‘RFS to join Celeste Barber in court to release bushfire donations‘ The Australian (online) (February 21, 2020); Sam Clench, ‘Celeste Barber reassures donors that ‘really serious’ effort is being made to release bushfire funds‘ News.com.au (February 21, 2020)).

Today Greens MP David Shoebridge announced that he was introducing a Bill to the NSW Parliament to give the trustees a one-off dispensation to allow them to redistribute some of the $52m.  You can read details of his proposal in his media release:

David Shoebridge, Media Release: Fixing the $52 million RFS donations mess (February 25, 2020).

Interestingly his press release says ‘Celeste Barber, who made the call for these record donations has indicated she will bring an application to the Supreme Court to address this problem.’ I cannot see that Ms Barber would have any standing to bring an action in the Supreme Court.  She is one of several million donors.  The applicant will have to be the RFS trustees.  As reported in the News.com.au article (above, emphasis added) ‘The next step is for the RFS to seek clarification from the NSW Supreme Court on how the money can be used.’

Will any of this work? Who knows.

The Supreme Court would normally get involved if a trust fails, eg money is raised to pay for someone’s medical care but they die before it can be spent, or money is raised for a specific project and more money than is required is raised.  Here there is no failure, the trust and its beneficiaries (the RFS and its brigades) still exist and even if Celeste Barber had an original goal, the RFS trust was not asking for a sum for a special project.  They can spend the full amount consistently with their trust deed.  I’m not sure on what basis the supreme court could or would make orders allowing a variation in the way the trust money is to be spent.

With respect to the Act of Parliament Mr Shoebridge will need to get the numbers to pass his Bill.  I cannot say if that will happen; and some may say this is a problem that doesn’t need fixing. The money was donated to the RFS trust so let it go where the donors elected to send it when they pressed ‘donate’.

Conclusion

There is still a long way to go to see if the RFS will be allowed to meet a promise that it did not make and honour a promise Ms Barber’s was in no position to make, to ensure “… that Victoria gets some, that South Australia gets some, also families of people who have died in these fires, the wildlife…’

 

Today’s question relates to using sirens as a form of community warning in South Australia. I’m told:

Fire Brigades have been using station sirens for a long time. Once, it was primarily to summon fire fighters to the station.  When paging became widespread in the 1990s, sirens took on more of a community warning function…

SACFS HQ … takes the view that the day of the station siren is over and has requested/directed their use be ceased.  We understand there are several drivers for this, primarily cost.

The first is (purported) legal cost.  Risk-averse lawyer-y types threatening all sorts of future court-room grief if CFS doesn’t make them 100% guaranteed to sound when needed, even if the power is out or they have been taken down for repair…

The second is operating cost. They need a lot of power to run … and need maintaining and replacing.  CFS argues that they are poor bang-for-buck in terms of coverage vs cost.  Except…

…  A small but significant percentage of Hills residents have little or no mobile or GRN reception in their homes, and as their land-lines are replaced by NBN, satellite voice & data coverage only.  But the sirens can be heard clearly, even in the deepest, darkest black-spots.  Because of this, many brigades and their communities in the Adelaide Hills want to retain or reinstate their station sirens…

So, the questions….

1. Is there any validity to the idea that CFS would be in some way liable for losses if the station siren doesn’t sound that one time it was needed?
2. Could a CFS Brigade “defy” HQ and retain/reinstate their siren anyway. I understand that the Brigade couldn’t force “The CFS” to pay for it, but would “The CFS” be able to stop them doing so if the Brigade had the funds available?  Property ownership of fire stations mostly lies with SAFECOM, the parent body over CFS, SES & MFS.

The issue of sirens as a tool for community warning was the subject of discussion in the 2009 Victorian Bushfires Royal Commission.  At the time Victoria’s Country Fire Authority did not support the use of sirens. The Commissioners, in their Interim Report (Chapter 4, Warnings) said:

4.206 Sirens are intended as a signal to those in the vicinity to seek further information or take protective action according to procedures established in the minds of those hearing the siren. When understood correctly (that is, as a trigger used against the background of an existing procedure for correct response) it is clear that a siren may have a useful role as part of an overall system of bushfire warnings.

4.207 CFA policy is that sirens are not to be used for warning the public. Mr Rhodes expressed the view that sirens have many limitations. He confirmed that the CFA does not advocate the use of sirens.

4.208 The Commission has heard evidence on the use of sirens in some communities in Victoria and South Australia. Whether the use of a siren is appropriate as a fire danger warning depends on local circumstances, including a developed community appreciation of its function. There is scope to investigate and develop the use of sirens in communities that would benefit from such an alert system. In addition, sirens may be useful outdoors, particularly for travellers and campers…

4.232 There is potential for more communities to attempt a comparable approach as that in use in Ferny Creek, Walhalla or Woods Point. Not all communities will want to institute a local alert siren. Some communities will determine to use their siren in different ways for different purposes. The option to pursue local solutions, including sirens, should be part of Municipal Emergency Response Plans and should also be given more prominence and assistance in the education campaigns and advice concerning bushfire preparedness.

As Mr Esplin notes in relation to the Ferny Creek fire alert siren:

The community should not be just a passive recipient of services; it should be an active participant in developing safety strategies that it knows how to apply and is willing to apply, and applies, and it is involved in a partnership with the emergency services and with local government … and it is my philosophy that where such a tripartite partnership can be recreated, the safety outcomes are maximised, but risk is mitigated to the greatest extent.

4.233 Sirens are one of a number of options that might be deployed in some areas to ensure the community is alerted to the need to be ready to receive warnings, search out further information, take defensive actions or prepare to implement a protocol for a local refuge.

Recommendation 4.7

The Office of the Emergency Services Commissioner and the CFA develop guidelines for the use of sirens in communities that decide to use a siren as part of their response to bushfires.

Now, to the questions.

1.  Is there any validity to the idea that CFS would be in some way liable for losses if the station siren doesn’t sound that one time it was needed?

Put in such simple terms the answer is ‘yes, there is some validity to the idea that the CFS could (not would) be liable’.  But there are many hurdles.

Sirens are contemplated as an emergency service warning tool. The Fire and Emergency Services Act 2005 (SA) s 129 says:

An emergency services organisation or a council may erect a siren in a suitable place for the purpose of giving warning of the outbreak or threat of a fire or the occurrence or threat of an emergency, and may test and use the siren.

The power to install a siren does not give rise to a duty or obligation to exercise that power (just because you can, does not mean you must).

Assuming that the installation of the siren gives rise to some ‘duty of care’ the essential issue in negligence law is that the obligation is to take ‘reasonable’ care, it is not a guarantee of safety.  To take reasonable care a defendant like the CFS would need to show that it had considered risks and had in place ‘reasonable’ maintenance procedures. Equally, as noted by the Royal Commission, there would need to be community understanding of what the siren meant and the CFS would have to take an active part in that community education (as they do now in, for example, explaining what fire warnings mean).  There’s no point having a siren if people don’t know what it means.

But in trying to make the CFS liable a potential plaintiff would have many difficulties.  Assuming that the installation of the siren gave rise to a duty of care, a common law duty is a duty to take reasonable care, not to guarantee safety – ‘an obligation to exercise reasonable care must be contrasted with an obligation to prevent harm occurring to others. The former, not the latter, is the requirement of the law.’ (Roads and Traffic Authority of NSW v Dederer [2007] HCA 42, [51]).

There is a risk that all warning options will fail to reach a person or will fail to work. The failure of mobile networks can guarantee that an ‘emergency alert’ will fail to reach those dependant on the mobile network but that does not mean anyone will be liable for that.  A siren might fail, it may not be heard, it may not be understood.  If there is a duty it is a duty to take reasonable steps to deal with those risks (regular maintenance, community education) not to guarantee that they don’t arise.  The installation of sirens may well be a reasonable response to a risk that other warnings won’t work in particular areas. If there is a risk of liability because the siren might fail, there may also be a risk of liability if other warnings fail and the use of the siren may be a reasonable response to that risk.

The next hurdle is causation. Even if there was negligence in failing to maintain or activate a siren, a potential plaintiff would have to show that the siren would have made a difference.  Where they suffer loss or damage due to fire it’s the fire that is the cause of the loss.  They would have to show that had the siren sounded they would have done something that they did not do and that would have avoided whatever losses they suffered. That will not be easy when warnings are communicated by other means, and where people can be expected to remain observant to local conditions. In catastrophic fire conditions, the warning may not have made any difference.

I would suggest the best approach is that recommended by the Royal Commission and that is the use of sirens should be a matter considered by the CFS, the community and local council that is required ‘to take measures to protect its area from natural and other hazards and to mitigate the effects of such hazards’ and ‘to provide infrastructure for its community … (including infrastructure that helps to protect any part of the local or broader community from any hazard or other event…)’ (Local Government Act 1999 (SA) s 7(d)).

2.   Could a CFS Brigade “defy” HQ and retain/reinstate their siren anyway.  I understand that the Brigade couldn’t force “The CFS” to pay for it, but would “The CFS” be able to stop them doing so if the Brigade had the funds available?  Property ownership of fire stations mostly lies with SAFECOM, the parent body over CFS, SES & MFS.

As noted, s 129 of the Fire and Emergency Services Act 2005 (SA) says ‘An emergency services organisation … may erect a siren …’.  An emergency services organisation is the SA Metropolitan Fire Service, the Country Fire Service (CFS) and the State Emergency Service (s 3).  The CFS is established by the Act and consists of the Chief Officer, the staff and the members of the brigades. But each brigade is not a separate legal entity nor is it, on its own, an ‘emergency services organisation’. In simple terms the Act allows the CFS to install a siren but that does not mean each brigade.  Each brigade is part of the larger organisation managed by the Chief Officer who has ‘control all resources of SACFS’ (s 60(4)(a)).

In short yes, the CFS could stop a brigade installing a siren even if the Brigade had funds available as ultimately the brigade does not own its funds. The brigade is not a separate legal entity, so the funds collected by the Brigade are funds owned by the CFS and are subject to the direction of the Chief Officer. IF that were not the case, if brigades could do what they wanted if they could afford it, there would not really be a country fire service.

Conclusion

The issue here are not really legal questions. The SACFS has the power to install a siren. The question is not or should not be about duty of care or liability but whether a siren could ‘ensure the community is alerted to the need to be ready to receive warnings, search out further information, take defensive actions or prepare to implement a protocol for a local refuge.’ That involves discussions beyond the CFS to include local government and the community and to ask them what they want and what will work for them.

If a siren is a good local response, there is no legal risk that should stop their installation. IF the community says that is the only warning that is going to work given ‘residents have little or no mobile or GRN reception in their homes, and as their land-lines are replaced by NBN, satellite voice & data coverage only’ in which case if there is a duty to warn, it may be negligent not to find an alternative such as a siren.

POSTSCRIPT

After writing this post a correspondent sent these details on the position in Victoria.

Following the 2009 Bushfires Royal Commission, Victoria went on to develop policy and procedures around the use of community sirens and undertook a pilot program exploring technologies to effect their use. In all, fewer than 40 communities ended up with community alerting sirens and these remain in use as part of the overall warnings and advice system in Victoria. Nearly all of them repurpose exisiting siren infrastructure attached to CFA stations, which were modified and linked into to the statewide warnings system. While it is possible for a community to seek to have a new siren installed, there appears to be no appetite to fund more sirens from government and in recent years minimal demand for additional sirens from the community. Here is a link to the Victorian policy: https://www.emv.vic.gov.au/responsibilities/community-alert-sirens Here is a link to CFA’s information about community alert sirens: https://www.cfa.vic.gov.au/warnings-restrictions/community-alert-sirens There are some inherent limitations in the use of sirens for community warning, not in the least of which is interpretation as to what siren sounds mean but also including range and audibility in adverse conditions. The use of smart phone apps and telephone alerting have overcome some of these, although all technological solutions are inherently subject to failure. In Victoria, the position has always been that sirens are just one of a number of community alerting mechanisms.  When used, they never signify evacuation and are simply a signal to “seek further information”. They are triggered at the discretion of an incident controller once warnings and advice messages reach  “watch and act” level and automatically at “emergency warning” level. One occasion on which they were used with good effect was the 2015 Wye River bushfires.

The AHPRA website reports that:

… Guidelines for mandatory notifications have been reviewed and publicly consulted on as part a scheduled review and to get ready for the changes to mandatory notification requirements coming into effect in early March 2020.

The revised guidelines explain the requirements to make mandatory notifications under the updated legislative requirements for treating registered health practitioners, non-treating registered health practitioners, employers of registered health practitioners and education providers to make mandatory notifications under the updated legislative requirements.

The requirement to make a mandatory notification about a practitioner is different for different notifier groups. For that reason, the guidelines about practitioners have been structured according to notifier type (that is treating practitioner, non-treating practitioner, employer) so that relevant information for that notifier group is easier to find.

As there are only limited circumstances when a mandatory notification can be made about a student, separate guidelines for notifications about students and practitioners have been developed.

You can read the revised guidelines on the AHPRA Guidelines here.

On 20 February 2020, the Supreme Court of The Australian Capital Territory handed down a decision in Carvalho v Town [2020] ACTSC 1, a claim for personal injuries compensation arising from a motor vehicle accident between a fire appliance driven by firefighter Town and a vehicle driven my Mr Carvalho.

Two interesting points to note. First, the matter was originally heard in the Magistrate’s Court. The Magistrate found that the driver of the fire appliance was negligent but that responsibility for the accident should be apportioned 40% to firefighter Town and 60% to Mr Carvalho. The end result was an award of damages in Mr Carvalho’s favour. The Magistrate assessed Mr Carvalho’s damages at $40,600. Discounting that amount to reflect Mr Carvalho’s contribution, the final award was $12,429.93 plus $2500 costs (all met by the ACT Insurance Authority, not Mr Town). The first thing to note therefore is that in terms of litigation this case did not involve a large sum of money.

Notwithstanding the value of the claim the matter was heard in the Magistrates court over three days in March 2018. An appeal was heard in the Supreme Court, before Mossop J on 9 December 2019. The decision of the court was handed down on 20 February 2020.  The accident happened on 27 February 2013. That means this decision was handed down one week short of 7 years after the accident. As we will see there was nothing particularly complex in this matter, so how it takes 7 years to resolve a relatively simply motor accident claim is, to be blunt, beyond me.

The facts

The facts were in dispute, but the finding of the Magistrate was that the fire appliance was travelling along Adelaide Avenue in Canberra.  Adelaide Avenue is a major road between the Canberra city and the satellite centre of Woden. It’s three lanes in each direction with the left most lane a T2 (Transit 2) lane so open only to vehicles with 2 or more persons, motorcycles and buses.

The evidence was that the fire appliance driven by Mr Town was travelling south in the T2 lane with lights and siren activated. They needed to do a u-turn to make their way to their emergency call. There was a u-turn bay across a wide nature strip. To make that u-turn Mr Town moved into the middle lane and slowed down, he began to turn across the T2 lane and collided with the vehicle driven by Mr Cavalho that was passing the slow moving appliance on its right.

The court held that the driver of the appliance, even though he was responding to an emergency call, that other drivers had obligations to give way and that he had the benefit of the exemption under the Australian Road Rules r 306, still owed a duty of care to keep a proper lookout for other road users.

(Interestingly the judgement says (at [20]) ‘The respondents had relied upon r 79 of the Road Transport (Road Rules) Regulation 2017 (ACT) that requires a driver to give way to an emergency vehicle displaying a flashing red or blue light’.  Or course the 2017 version of the Road Rules could not have been in force on 27 February 2013.  One assumes that the relevant law at that time was the Road Transport (Safety and Traffic Management) Regulations 2000 (ACT) that incorporated the Australian Road Rules into ACT law. Rules 79 and 306 were not significantly different at that time).

The Magistrate said (quoted at [21]):

There was a duty on the driver to take a high level of care to ensure that other road users were not placed in danger by the manoeuvre.  There is no evidence that the [appellant’s] vehicle was travelling at high speed, and yet the testimony of Officer Town was that he at no time saw the [appellant’s] vehicle before the collision.  That concession strongly supports a conclusion that, as the driver of the appliance, he breached a duty of care to the [appellant] to keep a proper lookout and I so find.

As noted, it was found that the plaintiff was 60% responsible. He was in a lane to the right of the appliance, He had ample opportunity to observe the appliance with its emergency lights on and then the right-hand indicator. Even if he did not know exactly what the appliance driver intended to do, he was indicating an intention to move to the right. The Magistrate found (at [25]):

… that a careful driver would have seen the indicator and would have slowed or stopped his or her vehicle to avoid a collision.  Even if the indicator had not been observed then the operation of the lights and perhaps the marked slowing of the vehicle with no obvious destination in sight would have caused a careful driver to slow or stop his or her vehicle.  He therefore found that the appellant’s failure to take reasonable care for his own safety contributed to his own injury to the extent of 60%.

All parties appealed. Mr Carvalho argued that the assessment of contributory negligence was too high, that the assessment of damages was too low, that there was fraud by the respondents, that the Magistrate was compromised by a conflict of interest, that his lawyer failed to follow his instructions, that he had new evidence, that their was collusion between witnesses for the respondent/defendant and that the Magistrate’s assessment of his and his mother’s credibility was unreasonable.  The defendant (Mr Town represented by the ACT Insurance Authority) also appealed arguing that the Magistrate erred in finding that there had been any negligence by Mr Town and/or the Magistrate should have found that Mr Carvalho’s actions amounted to 100% contributory negligence.

His Honour rejected all the grounds of appeal confirming that the Magistrate made no error in his assessment of the evidence or the law, confirming the finding of responsibility 40:60.

Legal lessons

This was not a complex case. The legal lesson for readers of this blog is to confirm, yet again, that even though the driver of an emergency vehicle has an exemption from the road rules, and even though other drivers are required to give way to emergency vehicles, each driver still owes a duty to avoid a collision.  The exemption from the road rules is not an exemption from all law or the duty to take care.

As His Honour said (at [102]), with respect to his case:

… there was no allegation nor finding of negligence arising from the fact that [the appliance] was making what would otherwise be a dangerous and inappropriate turn … it was appropriate for the first respondent to make that turn, but that in doing so a lookout should have been kept for vehicles in the lane to the right which, apart from viewing the indicator, could have no expectation that the vehicle would make that manoeuvre.

 

I have previously written about the role of paramedic and retained firefighter – see Registered paramedic or firefighter? (July 10, 2018) and NSW Paramedic and fire fighter – when does one role start and finish? (July 8, 2015).

I’m not sure if today’s question comes from the same person, or people who asked those questions but regardless of whether it’s the same person, they are both a retained firefighter and NSW paramedic. Today they say:

As a retained FF and registered paramedic on a truck if there is ever a need to treat or assess a patient at a job, I inevitably get tasked to do this.  Even if I am pump operator, since the introduction of ‘Registration’ I cannot really take the ‘cap’ of paramedic off and as such I am obliged to do this as the senior clinical person at a job. My questions are:

1. What documentation do I now use to state the level of care, assessment and/or recommendations that I have given either to someone who does not want any further treatment, or to give to another clinician (paramedic on duty) etc etc. F+RNSW seems to not see this a priority, I have bought it up on a local level and there were no answers, which is fine in theory if nobody ever needs to know what I did, but we all know that sometimes things turn to shyte, and in the worst case can go to Coroners Court for investigation. Like all Government Business units, the old adage of ‘if you didn’t document it, you didn’t do it’ rings true. We need a clinical incident form for medico-legal documentation on the truck to show what first aid or other clinical assessments or treatments are and were made. This is a significant risk to FF who are on the truck who either have their First Aid skills or other clinical skills and they carry the can if there is a police, clinical, F+RNSW procedural or coronial investigation
2. What is the FBEU doing about people like me in the Brigade in the way of remunerating us to act in the manner of senior clinician by default? If I am on the truck and through the National Registration process the role of senior clinician in the absence of anyone with a better medical knowledge than mine or other registered paramedics, then there should be a clinical allowance for people like me because quite frankly I am holding all of the organisation risk on my shoulders? What are your thoughts on this? Is this worth a general discussion amongst the FBEU Executive?

I will decline to answer question (2). It is outside the scope of this blog and any claimed expertise. Industrial matters are indeed a matter for the relevant union.

As for question (1) first some observations. First, surly the worst case is ‘someone dies who did not need to’, not that it goes before a coroner. If the matter got before a coroner and if the matter came down to a lack of documentation so there was an incomplete handover or the paramedic/fire fighter could not know recall what happened, what’s the coroner going to do? Recommend that FRNSW get a system in place to record patient care.

Second I have no idea what is meant by the assertion that the first aid person will ‘carry the can if there is a police, clinical, F+RNSW procedural or coronial investigation’. That they may be asked – what did you do? But I don’t know what ‘carry the can’ means in this context.

Now to turn to the question of what documentation. Of course, there should be patient care records – ‘a clinical incident form … to show what first aid or other clinical assessments or treatments are and were made’ – even if patient care is secondary to FRNSW’s primary purpose. Records are required to ensure continuity of care and to remind the treating firefighter what happened if that is a matter that needs to be recalled in the future; see First aid patient records – who and what are they for? (January 31, 2015) and record appropriately.

The WorkSafe Australia Model Code of Practice for First Aid in the Workplace says (p. 19):

A record of first aid treatment given should be kept by the first aider and reported to managers on a regular basis to assist reviewing first aid arrangements. First aid treatment records are subject to requirements under Health Records legislation. Further information is available from the Office of the Australian Information Commissioner.

But there is no prescribed form or standard – use a notebook (ideally a notebook with carbon paper if such stuff still exists, but that would do).

I would expect that there are forms to be completed if a firefighter is hurt on duty and they could be used in the station or on a truck. Or as a registered paramedic, design your own and take it to FRNSW with a suggestion that they adopt it, print it and put one on every fire truck.  If FRNSW won’t issue such a form, get your own. There are plenty of examples of patient care records and no doubt a shop like ‘Officeworks’ can supply a book with relevant records or see this from St John Ambulance Australia – https://shop.stjohn.org.au/workplace-patient-report-forms-10pack_1001836/.  Perhaps FRNSW should buy a pad of these for every appliance?

 

Today’s question from South Australia is said to be ‘adding to’ my ‘series of sackings of volunteers …’

One aspect which has surprised me in supporting this process, is that in SA there is no Legislative, Regulation, Government, or SA SES instrument to sign on a volunteer to the agency.  It just seems to happen.  There are Procedures, Policies, Codes of Conduct once a person is accepted into the agency, including being deemed an employee for the purpose of WHS and driving under emergency conditions.

Unless I am mistaken, unless there is a “formal instrument” which you sign on joining, am I right in my belief that you are “not covered” as a volunteer which requires you to be deemed an employee for the purposes of WHS and legislative operational requirements. The other implication in this case is that if the volunteer is not considered a nonpaid employee through an organisational instrument of engagement, then there is no legal mechanism to protect the volunteer in the case of an injury and workers compensation.

This aspect I believe is crucial in regard to the Legislation and Regulations in that volunteers can be terminated without ever being subject to disciplinary action as contained within the Legislation, Regulations and organisational instruments.

The interesting part contained within the SA SES Standard Constitution is that a member can be terminated upon application of the Unit Manager, Regional Commander or Deputy Chief Officer without the need for any justification at all, just on a whim. Again if there is no instrument for signing on a volunteer, then I believe there is no valid instrument to terminate a volunteer.

I think my correspondent is ‘mistaken’.  There is no need for a formal document of appointment, the issue is what we lawyers call a ‘question of fact’ (rather than a question of law). The question is ‘was or is the person a volunteer with the SES?’ First, it’s not true that there is no legislation on the matter. The Fire and Emergency Services Regulations 2005 (SA) r 58 says:

An SASES unit must—

(a) maintain a list of the names of its members with each member’s residential address, date of birth, certificate of identity number and date of joining the unit;…

A person will be a member of the SASES if their name appears on a unit membership list.

In the absence of a formal document of appointment you would look for other evidence – did they turn up for and were they accepted for training? Were they issued with a uniform? Were they held out by the SES as a member? Did they respond with the SES? Did they subject themselves to the discipline of the organisation? Did everyone behave as if they were a member?  One doesn’t have to answer all those questions, but they are the sort of questions that would be relevant and would allow someone, including a court, to determine that the person was, or was not, a member of the SA SES.

If you are a volunteer, then you are a worker for the proposes of the Work Health and Safety Act 2012 (SA). (To be identified as a work (s 7) is not the same as saying the volunteer is ‘deemed an employee’.  They are a worker, a worker may or may not be an employee).

And there is a means for compensation as noted in my earlier post Compensation for the death of volunteer firefighters across Australia (February 13, 2020)

In South Australia a volunteer firefighter is presumed to be employed by the Crown and is therefore a ‘worker’ (Return to Work Act 2014 (SA) s 4 and Schedule 1; Return To Work Regulations 2015 (SA) r 69).

The same provisions apply to SES volunteers (Return To Work Regulations 2015 (SA) r 69(1)(a)(i)).  Therefore a member of the SES is covered and the answer to who is a member will be answered by reference to the questions above.

As for disciplinary action of course, it is not the case that a member ‘can be terminated upon application of the Unit Manager, Regional Commander or Deputy Chief Officer without the need for any justification at all, just on a whim’.  Anyone seeking to discipline a member is required to comply with the Fire and Emergency Services Regulations 2005 (SA) r 62 which sets out detailed procedures to manage the discipline of volunteers.  These provisions are binding on the ‘Unit Manager, Regional Commander or Deputy Chief Officer’.

And the right to receive natural justice is a common law right that will be implied where a decision by one person affects the rights and interests of another, Even if there was an attempt to say that a person, who everyone thought was a member was not in fact a member because he or she had not completed ‘form a’ that person would be entitled to ‘natural justice’ (ie to be heard on the matter).

The law is far less concerned with form than substance. If there is no prescribed membership application form, then no form is required. The absence of a form does not mean there are no volunteers with SA SES. All the people whose names appear on the member list maintained by SES units are volunteers. And others may be found to be volunteers if they behave as if they are volunteers and the SES behaves as if they are volunteers even if it turns out there’s been an error in some paperwork somewhere.

Conclusion

There is nothing in the Return to Work Act 2014 (SA), the Work Health and Safety Act 2012 or the Fire and Emergency Services Regulations 2005 (SA) that says a person is a member if and only if they have completed form ‘A’.  In the absence of such a requirement my correspondent is mistaken. There is no implied rule of law that says that one can only be a member of something if there is a ‘form’.  If the government intended that a member as a member if and only if they completed the membership form, it would need to say that. In the absence of that rule it does not mean there are no volunteer members, it means that membership is not determined by whether or not someone signed the form. The prescribed evidence of membership is that the person’s name is entered on the list maintained by their SES unit but even that may not be determinative.  Assume Bill has been turning up, and out for years, receiving long service medals, accepting appointments, travelling for training and out of area response etc but it turns out that another person, with a similar name resigned nad when updating the list, Bill’s name was accidentally removed but the resigning member’s name still appears on the list.  A court, and I suspect the workers compensation insurer, would have no difficulty in finding that Bill was, and remains, a member of the SES.

Even without ‘a “formal instrument” which you sign on joining’ it is still possible to identify who are members of the SES and they are all  …workers for the purposes of the Work Health and Safety Act and deemed employees for the Return to Work Act. Should anyone seek to terminate their membership they have to comply with the Fire and Emergency Services Regulations 2005 (SA) r 62 and internal procedures.

 

Today’s correspondent

… was wondering what laws surround the use of red and blue lights and a siren in SA.

I believe using these to pull someone over would be impersonating a police officer, right?

What about having them fitted to a vehicle, I understand it would be a breach of the ADRs and be defectable [sic] but would it be an offence to have them fitted and use them to, let’s say make way through traffic?

If so, what would be the penalty and offence?

Would the same also apply to using magenta lights?

For earlier posts on red/blue lights, see https://emergencylaw.wordpress.com/page/2/?s=red%2Fblue

In South Australia (Police Act 1998 (SA) s 74)

A person who, without lawful excuse—

(a)         … or

(b)         represents himself or herself by word or conduct to be a police officer,

is guilty of an offence.

Maximum penalty: $2 500 or imprisonment for six months.

I have no doubt that using red/blue lights to communicate to a driver that he or she is required to pull over would be representing oneself by ‘conduct to be a police officer’ and would therefore constitute the offence of impersonating a police officer (s 74(1)(b)).

The Road Traffic (Light Vehicle Standards) Rules 2018 (SA) cl 114(5) says ‘A vehicle, other than an exempt vehicle, a special use vehicle, or a State Government enforcement vehicle must not be fitted with a light that flashes…’. I think, given the context of the question, I can infer that we are not talking about any of the vehicles listed. For clarity, an ‘exempt’ vehicle is (cl 3):

(a) an Airservices Australia vehicle; or

(b) an Australian Border Force vehicle; or

(c) an emergency vehicle; or

(d) a police vehicle.

A ‘special use’ vehicle is (cl 114(1)):

(a) a vehicle built or fitted for use in hazardous situations on a road;

(b) a vehicle used on a road under a dimension exemption;

(c) a vehicle built or fitted to accompany a vehicle mentioned in paragraph (b);

(d) a vehicle that is a bus fitted, before July 1999, with a sign telling road users that the bus carries children.

A special use vehicle may be fitted with a magenta light (cl 114(3)). An exempt vehicle may be fitted with any coloured light (cl 114(2)).

It is a breach of the standards to drive a vehicle on the road where the vehicle does not comply with the standard (Road Traffic Act 1961 (SA) s 116) so to drive a vehicle that is fitted with flashing lights where it is not ‘an exempt vehicle, a special use vehicle, or a State Government enforcement vehicle’ is to drive in breach of the Standard. The driver is subject to a maximum penalty of a fine of $2500 (s 117).

As for using such lights to make way through traffic, another driver may believe that they are obliged to make way for the vehicle because, if it is displaying red/blue flashing lights it must be a police or emergency vehicle. It follows that the driver could be guilty of impersonating a police officer (Police Act 1998 (SA) s 74) just as they would be if they tried to pull another driver over. Equally they may be guilty of the offence of impersonating an emergency services officer (Fire and Emergency Services Act 2005 (SA) s 126).  Given the driver would have no exemption from the road rules he or she would be criminally liable for any offence they committed along the way (eg failing to give way to other traffic, negligent driving, speeding etc).

Conclusion

The questions, and my answers are:

1. I believe using these to pull someone over would be impersonating a police officer, right? Yes, that’s right.
2. … would it be an offence to have them fitted and use them to, let’s say make way through traffic? Yes.
3. If so, what would be the penalty and offence? A maximum fine of $2500 plus the penalties associated with any traffic offences along the way.
4. Would the same also apply to using magenta lights? Yes.

Today’s question follows from yesterday’s post Is being disrespectful to a politician a breach of the RFS Code of Conduct (February 17, 2020).  Before I get to the question I see that there have been news reports that the firefighter in question was sacked.  He is reported to have said to The Project (see 5AA Firefighter Says He Was Sacked After His Rant About The Prime Minister (17 February 2020):

… he was stood down because of the comments:

“The message I got was about time you brought the truck back because we were about to send the police to go look for you. And then there were further comments with gestures and arm movements saying that I’m finished. It’s all over.

“Another captain from another brigade within Batemans Bay came out and I asked him the question, I said: ‘What’s going on?’ He said: ‘You’re finished because of your allegations and foul language against the PM of the country while representing the RFS’.

“Didn’t know you could get sacked from a volunteer organisation but apparently you can.”

I cannot believe that gets press space. Someone saying ‘you’re finished’ is not getting sacked, it’s someone expressing an opinion. Any member must have had some exposure to the RFS Code of Conduct and have realised that of course one can have one’s membership of a voluntary organisation removed, but not summarily – see Service Standard 1.1.2 Disciplineand most of the posts that appear here – https://emergencylaw.wordpress.com/category/disciplinary-matters/.  Given the effort the RFS goes to set out the Code of Conduct and ethics and the processes if it has in place if it wants to cancel a person’s membership no-one could honestly have believed that the reported comments meant that they, or anyone else, had been ‘sacked’ or dismissed from the RFS.

The next step in a matter that is being blown out of all proportion is today’s question:    

… regarding the reported creation of the West Nelligen Fire Brigade as a private fire fighting brigade outside the RFS management.  I have no interest on the political ramifications, rather the legal cover that may or may not exist for such a brigade. in particular it is mentioned that all intended members have their own insurance, bit of a blanket statement as I’m sure the insurance issue goes beyond covering themselves for injury and would extend to public liability among other things. in relation to the Rural Fires Act what would be the standing of a private brigade with regards to what is and isn’t covered, what they are and not allowed to do etc

(see ‘Firefighter insists he was sacked for anti-PM rant after NSW RFS denies claim’ SBS News (Online) (17 February 2020)).

Should ‘a number of local farmers from the Nelligen area to start a new community fire brigade, which has no affiliation with the NSW RFS’ they would be a private club. They could not use the title Rural Fire Brigade, they could not use the RFS shed or equipment. They would enjoy no rights or protections under the Rural Fires Act 1997 (NSW). They would, presumably, not be notified of triple zero calls. They could exercise no power nor authority that is granted to rural fire brigades by the Rural Fires Act.

At a fire they would be subject to the direction and control of the RFS (Rural Fires Act 1987 (NSW) s 22 including the power (s 22A) of an officer of a rural fire brigade or group of rural fire brigades to:

… cause to be removed any person, vehicle, vessel or thing the presence of whom or which at or near a fire, incident or other emergency might, in the officer’s opinion, interfere with the work of any rural fire brigade or the exercise of any of the officer’s functions.

Depending on how they organised themselves and how they behaved they could commit offences contrary to the State Emergency and Rescue Management Act 1989 (NSW) s 63B relating to impersonating ‘an emergency services organisation officer’.

For related discussions see:

• Operating a private fire brigade in SA (May 18, 2019);
• What is a NSW fire brigade? (August 27, 2014);
• Self help firefighting in Victoria (August 30, 2014); and
• Neighbours helping neighbours during a Victorian bushfire and the powers of the CFA (November 28, 2014).

 

 

Today’s question relates to the requirement for a ‘blue card’ by members of QFES – see Working with children check for QRFS and SES (July 20, 2019).  The question is:

In the cacophony surrounding the QFES interpretation of Blue Card requirements for volunteers by 31 March 2020, volunteers who do not wish to comply with that requirement are being told to resign or be sacked. As the First Officer of a QLD RFB, my understanding is that a brigade member can only be dismissed by the brigade of membership, not the QFES Commissioner, am I correct?

Secondly, can I using the authority given to a first Officer in an emergent fire situation, be prevented from calling on the assistance of those volunteers who have either resigned or been dismissed as a result of the Blue Card turmoil?

Question 1

The QFES Commissioner is ultimately responsible for the management of the Rural Fire Service and SES in Queensland (see Status of Queensland Rural Fire Brigades (September 10, 2014)).

There is nothing on membership of Rural Fire Brigades in the Fire And Emergency Services Act 1990 (Qld). The closest provision is s 81 that says ‘The commissioner may dismiss a person from any office held with a rural fire brigade or may disqualify a person from holding any office’ but given s 81 is about ‘officers of rural fire brigade’ it would infer that an officer, and a person ‘holding any office’ is different from a ‘member’.

Interestingly, s 132 says ‘The SES consists of the persons appointed by the commissioner as SES members.’  With the power to appoint comes the power to terminate the appointment (Acts Interpretation Act 1954 (Qld) s 25). There is no equivalent of s 132 when it comes to the Rural Fire Brigades. There is no provision that specifically that says the Commissioner can dismiss a member but equally there is nothing say a First Officer can, nor is there anything in the Fire and Emergency Services Regulation 2011 (Qld). The disciplinary provisions in Chapter 3, Part 4, Division 3 clearly relate to employees, not volunteers. But someone has to have that power to determine who is, and who is not, a member.

Given the Commissioner’s role is to form brigades (s 79) approve and at times direct Brigades with respect to their rules (s 80), direct how elections for officers are to be held, approve elections and appoint (and withdraw the appointment of) officers (s 81), determine the functions of a brigade and it’s area of operations (s 82), provide equipment for the brigade (s 84) and to be ‘responsible for the efficiency of rural fire brigades and may provide training and other assistance to them (s 85) it would stand to reason that the Commissioner can set out standing orders and procedures for membership including termination of membership and the Commissioner’s role in that process.

Unlike NSW RFS documents, the Queensland documents do not seem to be publicly available so I cannot see them but I would suggest that there are standing procedures such as the ‘the Code of Conduct for staff and volunteers’ that does empower the Commissioner to terminate a person’s membership. In any event, such authority could be implied in order to allow the Commissioner to fulfil his or her duties with respect to the emergency services.

Question 2

At a fire where (s 83):

… a rural fire brigade is in charge of operations for controlling and extinguishing a fire, the first officer of the brigade has, for that purpose—

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

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

Prima facie that would allow the first officer to ‘control and direct’ former ‘volunteers who have either resigned or been dismissed’ but who have made their ‘services … available at the fire’.

However s 83(3) says ‘Any person exercising a power or discharging a function under this section must comply with any code of practice and with any direction of the commissioner’ so if the Commissioner has directed that such persons are not be used, even if they are available, then that specific direction would override the general power in s 83(2). Again I don’t know whether such a direction has, or has not, been given.

Today’s question relates to the (in)famous video of an RFS volunteer telling the Prime Minister exactly what he thought – https://www.youtube.com/watch?v=DweZi38mWoI

The RFS has released a statement via Facebook that says:

The NSW RFS is aware of reports concerning the status of volunteer member Paul Parker from the Nelligen area.

We can confirm Paul remains a member of the NSW RFS and has not been dismissed.

My correspondent asks the question ‘is being disrespectful to a politician a breach of the code?’

Being disrespectful to a politician is not specifically prohibited by the RFS Code of Conduct and Ethics.  That’s not to say that it could not be an example of conduct that is a breach but it is not defined as a breach. So what can we say about Mr Parker? The answer is ‘nothing’.

It is not for me or any other observer to say whether or not this conduct (or any conduct) is or is not a breach of the Code. Some may think it was, other may think it was not. On these issues, opinions can differ. That is why in disciplinary proceedings someone would have to make a complaint of a breach, an appropriate officer would have to consider the complaint and consider whether that officer thinks the conduct could be a breach. Then the member would have to be asked if he accepted there was a breach, or not. If he did not the investigating officer would have to consider all the circumstances and decide if indeed there was a breach.  It is only after that process when all the circumstances have been considered that one could conclude whether there was, or was not, a breach in this, or any case.