Today’s correspondent asks ‘Would the situation be different in Australia?’  Context for the question is provided by a link to a story out of the UK: Ian Snug and Esther Beadle ‘Newly-elected MP falsely claims he is a ‘mental health nurse’’ NursingNotes (Online) 13 December 2019.

The gist of the story is that newly elected MP ‘Ian Levy claims in a series of pre-election social media posts that he works as a full-time “mental health nurse” with 30 years in the NHS’.  He is not however a registered nurse but ‘a healthcare assistant on an inpatient mental health rehabilitation unit’. The story says ‘Only the term “Registered Nurse” is a protected title, so while many claim his actions are misleading, they do not violate the Nurses Registration Act.’

With that context I infer that my correspondent’s question is really would similar behaviour violate the Australian Health Practitioner Regulation National Law.  Section 113 of the National Law says:

(1) A person must not knowingly or recklessly—

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

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

For nursing the protected titles (s 113(1)(a)) are ‘nurse, registered nurse, nurse practitioner, enrolled nurse’.  The protected ‘title for a health profession’ (s 113(1)(b)) is ‘nursing’.

I have previously argued that the use of descriptors such as ‘student’ or ‘retired’ would not breach the Act (see NSW students and retired officers referred to as ‘paramedic’ (August 14, 2019)).  Calling oneself a ‘student nurse’ or ‘retired nurse’ (or paramedic) seems to me to be explicitly trying to indicate that the person is not registered.  That is putting ‘student’ or ‘retired’ in front of nurse (or paramedic) could not ‘be reasonably expected to induce a belief the person is registered…’

The same is not true with the addition of words like ‘mental health’ or other words that may suggest a speciality (eg ‘emergency nurse’, ‘palliative care nurse’, ‘aged-care nurse’ etc).  In fact s 113(3) says the offence can be proved ‘whether or not the title is taken or used with or without any other words’. Adding the words ‘mental health’ before the word ‘nurse’ does not detract from the fact that the person is using the protected title ‘nurse’.

Conclusion

We are told in the UK story that ‘‘Only the term “Registered Nurse” is a protected title…’  That is not the case in Australia where the term ‘nurse’ is also a protected title.  If a person used the term ‘nurse’, whether with or without other words such as ‘mental health’ then he or she commits an offence if the circumstances in which they used the title ‘nurse’ ‘could be reasonably expected to induce a belief the person is registered’ under the Health Practitioner Regulation National Law. 

In short, the situation would be different in Australia.

Today’s correspondent poses a scenario and questions about doing CPR without a face mask. The scenario is:

… a child is unconscious not breathing, childcare educator attempts CPR without any PPE i.e. Face shield. Educator contracts communicable disease.

Questions:

• Are there any consequences related to work cover?
• Is a faceshield required to be used under WHS?

The Australian and New Zealand Resuscitation Councils, In ANZCOR Guideline 5 – Breathing (January 2016) say (p. 4; references omitted):

No human studies have addressed the safety, effectiveness, or feasibility of using barrier devices to prevent person-to-rescuer contact during rescuer breathing.  Nine clinical reports advocate the use of barrier devices to protect the rescuer from transmitted disease: three studies showed that barrier devices can decrease transmission of bacteria in controlled laboratory settings.

The risk of disease transmission is very low and need not deter rescue breathing without a barrier device. If available, rescuers should consider using a barrier device.

In ANZCOR Guideline 8 – Cardiopulmonary Resuscitation (CPR) (January 2016) they say (p. 3; references omitted):

The risk of disease transmission during training and actual CPR performance is very low. A systematic review found no reports of transmission of hepatitis B, hepatitis C, human immunodeficiency virus (HIV) or cytomegalovirus during either training or actual CPR when high-risk activities, such as intravenous cannulation were not performed. If available, the use of a barrier device during rescue breathing is reasonable. After resuscitating a person, the rescuer should reassess and reevaluate for resuscitation-related injuries

Work Health and Safety law (eg Work Health and Safety Act 2011 (NSW) s 19) requires a person conducting a business or undertaking to:

… ensure, so far as is reasonably practicable, the health and safety of:

(a) workers engaged, or caused to be engaged by the person, and

(b) workers whose activities in carrying out work are influenced or directed by the person,

while the workers are at work in the business or undertaking.

In determining what is ‘reasonably practicable’ regard must be had to (s 18):

(a) the likelihood of the hazard or the risk concerned occurring, and

(b) the degree of harm that might result from the hazard or the risk, and

(c) what the person concerned knows, or ought reasonably to know, about:

(i) the hazard or the risk, and

(ii) ways of eliminating or minimising the risk, and

(d) the availability and suitability of ways to eliminate or minimise the risk, and

(e) after assessing the extent of the risk and the available ways of eliminating or minimising the risk, the cost associated with available ways of eliminating or minimising the risk, including whether the cost is grossly disproportionate to the risk.

We can see that the risk of contracting a communicable disease has been determined to be ‘very low’. That is relevant under s 18(a).  The consequences of contracting a communicable disease, the consequence if the very low risk occurs would be high. The use of a ‘barrier device during rescue breathing’ has been assessed as a ‘reasonable’ response to the risk and no doubt is not very expensive.

Amongst other things a PCBU has to provide relevant equipment including first aid equipment (Work Health And Safety Regulation 2017 (NSW) r 42) and training (Work Health and Safety Act 2011 (NSW) s 19(3)(f)).  The Safe Work Australia Model Code of Practice: First aid in the workplace (July 2019) recommends that every work place first aid kit contains ‘Resuscitation face mask or face shield’

If a ‘childcare educator’ is expected to provide first aid to a child in their care that training would or should be at least a course in ‘Provide First Aid’ that would, from my experience, include some training in the need for hygiene and the use of barriers in performing CPR. With that training and the low risk it is then up to rescuers to decide if they are willing to perform mouth-to-mouth, mouth-to-nose or mouth-to-stoma resuscitation.

Let me then turn to the questions:

• Are there any consequences related to work cover [if a childcare educator attempts CPR without any PPE i.e. Face shield]?

Assuming that it is part of the person’s duties to care for the child (which seems axiomatic) then they contracted the disease at work and would be eligible for no-fault workers compensation. That is not an issue.

In terms of the criminal offence of a PCBU failing to provide measures to manage the risk to employees there could be an issue. As noted, there is a low risk of transmission, but the consequences may be dramatic and the cost of providing face shields is low.  Equally people expected to do first aid should have some training and most first aid kits have a barrier for the purpose.  If the PCBU has failed to ensure that people are trained so the rescuer can honestly say “I didn’t know of such risks or of such barriers” (eg the PCBU provides in house CPR rather than getting an RTO to provide a first aid course) or the PCBU fails to provide standard first aid kits so the rescuer doesn’t have the option of a barrier if he or she wanted to use one, then yes there could be an issue.

• Is a faceshield required to be used under WHS?

I think that would probably be too strong given the risks identified by ANZCOR and of course the risk to the patient if there is no effective CPR.  I would think the strongest one could say is that faceshields should be made available to staff (eg in first aid kits) and staff should be trained in their use (as they should be trained in all first aid equipment). I think it would go too far to say that the use is mandatory such that the PCBU or the staff member commits an offence if they fail to use one.

Today’s correspondent has:

… recently started to notice organisations that I work with begin to embed into crisis and emergency policies, statements about making decisions under legal professional privilege or assessing the emergency to determine if legal professional privilege needs to be invoked.  (There is often no guidance on how this policy approach is actually applied during the emergency)

Some of the organisations applying this are critical infrastructure owners who are included as part of State EM plans and their plans are written in collaboration with police and emergency services to align with State EM legislation.

I know a colleague who was deployed to Canada to assist with managing fires and the first person they were briefed by on arrival was the Govt lawyer who outlined the requirements for decision making and record keeping.  They were required to sign a letter to formally engage the lawyer and sign an agreement about how information is handled as part of the response and how all information/ documentation now was considered subject to legal professional privilege and they could not disclose information without legal approval.  I asked if that impacted the ability to effectively manage the incident and there were some challenges in sharing information with third parties that in Aust he would have freely shared updates with.  There was also the issue that all work generated during the day was taken and sealed and could not be referred to again, therefore each day was like starting a new and having to remember where they left off the day before.

I wonder whether organisations in Australia are being too risk averse by applying legal professional privilege as part of the management of an emergency when done as part of a wider Govt controlled response; or has this always been the case but just not applied as openly as it appears to be now or is this an increasingly new trend?

I would appreciate any thoughts you have or any reading you could direct me to.

This is not something I have heard of so I cannot say whether ‘this always been the case …or is this an increasingly new trend’.  I can say that, in my opinion, yes ‘organisations in Australia are being too risk averse [if they are attempting to fabricate situations to allow a claim for]… legal professional privilege as part of the management of an emergency’.

Legal professional privilege is a rule of evidence, but it is more than that.  To start with the rule of evidence, if a matter is privileged the owner of the privilege (in the case of legal professional privilege, the client of a lawyer) can resist having to produce privileged material to ‘the other side’ or to a court.  There is a uniform Evidence Act in force in the New South Wales, Victoria, Tasmania, the ACT, the Northern Territory and the Commonwealth (see https://www.ag.gov.au/LegalSystem/Pages/Uniform-Evidence-Acts-comparative-tables.aspx).   For ease of reference I will refer to the Commonwealth Act in the discussion below.

The Evidence Act 1995 (Cth) refers to client legal privilege to make it clear that the privilege belongs to the client, not the lawyer.  The critical section is s 118 that says:

Evidence is not to be adduced if, on objection by a client, the court finds that adducing the evidence would result in disclosure of:

(a) a confidential communication made between the client and a lawyer; or

(b) a confidential communication made between 2 or more lawyers acting for the client; or

(c) the contents of a confidential document (whether delivered or not) prepared by the client, lawyer or another person;

for the dominant purpose of the lawyer, or one or more of the lawyers, providing legal advice to the client.

The critical issue is that the communication has to be made, or the document prepared, ‘for the dominant purpose of … providing legal advice to the client’.

Client legal privilege is more than just a rule of evidence.  It should govern all aspects of a lawyer/client relationship. What you tell your lawyer, in confidence, should remain confidential. This is not some scam to benefit lawyers but a fundamental cornerstone of the common law.  In criminal cases the burden is on the Crown to prove any case beyond reasonable doubt.  That is to ensure that we all are protected from the excesses of the state that can bring so much more power and resources to any contest than any individual.  If they could just arrest people, let them go to their lawyer and then subpoena the lawyer there would be no burden on the Crown. Further if people cannot be honest with their lawyers many meritorious cases would not be run and equally cases without merit would be run because the lawyers could not give advice on what actually happened.

We might have no sympathy for many offenders in gaol after the Melbourne gang wars, but this principle is so fundamental that there is a Royal Commission (the Royal Commission into the Management of Police Informants) looking at the use of Ms Nicola Gobbo or ‘Lawyer X’ as a police informant. Her decision to inform on her clients was described by all the judges of the High Court of Australia as ‘fundamental and appalling breaches of [her] obligations as counsel to her clients and of [her] duties to the court’ (AB (a pseudonym) v CD (a pseudonym); EF (a pseudonym) v CD (a pseudonym) [2018] HCA 58, [10] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ)).

Further, the court said:

… Victoria Police were guilty of reprehensible conduct in knowingly encouraging EF to do as she did and were involved in sanctioning atrocious breaches of the sworn duty of every police officer to discharge all duties imposed on them faithfully and according to law without favour or affection, malice or ill-will. As a result, the prosecution of each Convicted Person was corrupted in a manner which debased fundamental premises of the criminal justice system. It follows … the maintenance of the integrity of the criminal justice system demands that the information be disclosed and that the propriety of each Convicted Person’s conviction be re-examined in light of the information. The public interest in preserving EF’s anonymity must be subordinated to the integrity of the criminal justice system.

The duty of confidentiality applies in all lawyer/client transactions.  If people cannot trust their lawyers, they cannot give honest instructions and if they cannot give honest instructions, they cannot get advice on their legal rights. It is not just a tool to allow lawyers to ‘get the guilty off’. If lawyers come to court without full knowledge of their client’s affairs in some cases meritorious cases will be lost; and other cases, without merit will be run.

The NSW Model Litigant policy says

3.1 The obligation to act as a model litigant requires more than merely acting honestly and in accordance with the law and court rules.  It also goes beyond the requirement for lawyers to act in accordance with their ethical obligations. Essentially, it requires that the State and its agencies act with complete propriety, fairly and in accordance with the highest professional standards. The expectation that the State and its agencies will act as a model litigant has been recognised by the Courts.

3.2 The obligation requires that the State and its agencies act honestly and fairly in handling claims and litigation by:

a) dealing with claims promptly and not causing unnecessary delay in the handling claims and litigation;…

d) where it is not possible to avoid litigation, keeping the costs of litigation to a minimum including by:

(i) not requiring the other party to prove a matter which the State or an agency knows to be true; …

g) not relying on technical defences …

Discussion

Legal privilege is an essential tool in an adversarial justice system. It is fair enough for the State or its agencies to rely on legal professional privilege when it is honestly and genuinely applicable but it serves no purposes and brings dishonour to make a sham of it.  Simply running a document past a lawyer may give rise to an argument or an attempt to obfuscate the truth but it would bring no credit to either the lawyer or their client. Further to try and manufacture a situation where the privilege can be claimed would simply delay proceedings, perhaps compel ‘the other party to prove a matter which the State or an agency knows to be true’ and would be an attempt to create a technical rather than honest argument.

The critical issue is that the communication has to be made, or the document prepared, ‘for the dominant purpose … providing legal advice to the client’.

Some documents are made for that purpose.  For example, if after the fire a landowner complained that there had been negligent conduct by the NSW RFS and wanted compensation (see for example Recovering the cost of damage by RFS (December 1, 2019)).  A summary document prepared by the RFS outlining what was done, or not done and including the opinion of the instructing officer as to the appropriateness of the decision may be prepared and delivered to the lawyers so that they can advise the RFS of any potential liability.  That document would be subject to client legal privilege.

But simply getting a lawyer to look at every document or asking volunteers to ‘sign a letter to formally engage the lawyer’ would not change the dominant purpose of communications logs, incident action plans or conversations between the members of the IMT.  To believe that this somehow creates a privilege is a non-sense.

Further a government and their agencies, as model litigants, should be disinterested in whether they are sued or not.  If a person sues and wins then they accept they did not act as required by law at the time.  If the person sues and loses then there has been a chance to test their arguments before an independent umpire.  The only difference between winning and losing is how much they pay.

Conclusion

Given the lack of litigation against emergency management agencies yes it would be my view that trying to create what appear to be fictitious arrangements to create an argument for legal privilege is to be too risk averse on the one hand, but exposing an agency to significant reputational risk on the other.  And if a court found that there were disingenuous attempts to create privilege it would no doubt put the party’s reputation at risk and may well mean a court prefers the evidence of the other party.

Where a communication occurs with a lawyer for the dominant purpose of obtaining legal advice, it is a privileged communication.  Running everything past a lawyer in the hope that it will give rise to a claim should anyone later (whether it’s the next day or the next year) want to know what happened is a sham.

 

 

Today’s correspondent is:

… an Emergency Trainer (based on AS 3745-2010) we instruct people on a regular basis on the process of silencing EWIS [Emergency Warning and Intercommunication System] Panels to facilitate a coordinated investigation of the cause of a fire alarm sounding and then to coordinate an evacuation as required. Recently I was advised that this was illegal under Division 5, Section 34 of the Fire and Rescue NSW Act 1989 which makes it an offence to tamper with any fire alarm or signalling apparatus. 

My Question: Is it considered tampering to silence the EWIS panel in order to complete an investigation or would this be considered as normal use of the EWIS system? The key word seems to be ‘tamper’, silencing the EWIS technically stops the fire alarm going off which would interfere with it but it’s one of the normal functions of the system

Interested in your thoughts on the matter. 

The relevant section of the Act (s 34) says:

A person who tampers with any fire alarm or signalling apparatus for giving notice of fire or who intentionally or recklessly gives any false alarm of fire is guilty of an offence.

‘Tamper’ is defined by Lexico (from Oxford, see https://www.lexico.com/definition/tamper) as ‘Interfere with (something) in order to cause damage or make unauthorized alterations’.  Clearly silencing an alarm by using a function of the panel in a way that it was intended to be used by a person authorised to do it is not to ‘tamper’ with the panel.  If that were not the case no-one could ever turn off a fire alarm once started no matter the circumstances. 

The authorised floor warden or fire fighter turns the alarm off after been alerted to the potential fire by the alarm, so it’s done its job.  That person who acts in accordance with industry standards is not doing anything ‘in order to cause damage or make unauthorized alterations’.

An unauthorised person who deliberately turns off an alarm in order to stop it warning people of an actual fire in the hope that people will die would be ‘tampering’ with the alarm but that’s a very different circumstance.

I don’t see how anyone could think that turning off the alarm by an authorised person if done in accordance with appropriate training and procedures, was ‘tampering’ with the alarm.

 

Today’s correspondent says:

The Fire Service I am employed by has conducted soil and water testing of numerous sites over the last year (Training Facilities and Stations.) As of yet the results of these have not been made public or supplied to staff. (Staff have not been formally notified of such testing, have only seen and asked contractors why they are drilling bores on site.)

Is there a way previous or present employees can gain access to or request site testing results? If these sites are proven to be contaminated – Ie PFOS, PFAS, heavy metals, other chemicals and products of combustion, Is there anything we as staff can do about such work locations? is this a matter for just the site owner whom accepts the current level of risk to its staff?

I suppose one could do soil and water testing for a number of reasons including if there are plans to build on the site.  If however the purpose is to look for contamination then the issue is likely to be governed under relevant WHS legislation (or OHS legislation in Victoria and Western Australia).

The Person Conducting the Business or Undertaking (the PCBU) has obligations to consult with staff and to take steps to protect staff (Work Health and Safety Act 2011 ss 19 and 49).  It is not ‘a matter for just the site owner whom accepts the current level of risk to its staff’.

If the agency is a government agency (which I assume it is) there could be applications to obtain information about the testing using Freedom of Information type legislation, but I would suggest the first step is to raise questions through the Work Health and Safety committee.

Today’s question comes from

… a CFA volunteer … wondering if you can clarify for a layperson what a “written instrument” may mean in reference to CFA Act & Regs.?

I refer specifically to Regulation 49 which does not appear to allow the Chief Officer to delegate his power to conduct a hearing, but I have also seen S6(2) suggests that the CO can by written instrument delegate his powers under the act or regs.

In what form might a written instrument take?  Should this be formally declared at a hearing?

Interested if you can clarify?

Regulation 49(1) of the Country Fire Authority Regulations 2014 (Vic) says ‘The Chief Officer must, not less than 21 days before the day set for the hearing of a charge, give written notice of the time, date and place of the hearing…’ and, at subsection (3):

The Chief Officer must hear the charge (unless the Chief Officer decides to dismiss the charge without a hearing) and—

(a) dismiss the charge; or

(b) find the charge proven and impose one or more of the penalties referred to in regulation 45.

There is no specific power to delegate but there does not need to be.  The Country Fire Authority Act 1958 (Vic) s 28 says:

The Chief Officer may, by written instrument, delegate to any person by name or to the holder of an office or position approved by the Authority, either generally or as otherwise provided by the instrument, any power or authority conferred on the Chief Officer under this Act or the regulations or any other Act or regulations, except—

(c)     this power of delegation.

The Chief Officer can delegate his or her powers and functions with respect to a disciplinary hearing (see also Interpretation of Legislation Act 1984 (Vic) ss 42 and 42A).

A written instrument is exactly what it says, something in writing.  It could be a standing order (eg where a delegation is made to officers of a certain rank or position) or a letter addressed to the delegate.   A written instrument means it has to be done in writing, nothing more.

In terms of a hearing, a person subject to the hearing could ask the person conducting the hearing to provide the written instrument that allows them to act as the Chief Officer’s delegate if that has not already been provided as part of the pre-hearing process.

A correspondent who works ‘in an event health services role’ has ‘an enquiry regarding bodycams’.  They write:

With the recent facilitation of NSWA paramedics utilising Body cameras, I was wondering if you could advise how this affects private EMS. For example, many security providers now utilise body cameras. When on scene whilst a patient is being treated are they able to continue filming? Or does this legally pose a legitimate confidentiality issue? Are we obligated as the treating clinicians to advise them to disable the camera?

Based on statutory ambulance services facilitating body cameras for staff members I am wondering if this has made any changes to legislation regarding patient confidentiality and thus where we stand as clinicians.

The simple answer is that there is no change for private EMS.

As for security personnel, they have no particular right to wear body cameras and are bound by the Surveillance Devices Act 2007 (NSW).  That Act (and similar legislation in other jurisdictions) has been discussed in many posts on this blog – see https://emergencylaw.wordpress.com/?s=surveillance

But if we assume, for the sake of the argument, the security services are using the cameras lawfully, the obligation to maintain the patient’s privacy is an obligation on the paramedic, not the security officer. The Code of Conduct for paramedics says that good paramedic practice includes ‘providing appropriate surroundings to enable private and confidential consultations and discussions to take place’ (Paramedicine Board Code of conduct (interim) [3.4(f)]).  That cannot always be possible where a person is being treated in a public place but the obligation to shield the patient (if possible) or to remove the patient (again if possible) is with the paramedic.  The security guard is not in breach of the paramedics’ code of conduct as he or she is not bound by it. To try to comply with the code, a paramedic or other ‘treating clinician’ can ask the security person to stop filming but they can’t ‘advise’ them or require them to do so.

As for the use of body cameras by NSW Ambulance paramedics, the Surveillance Devices Amendment (Body-Worn Recording Devices) Regulation 2019 (NSW) amended the Surveillance Devices Regulation 2014 (NSW) by adding regulation 5.  The new regulation 5 says:

5 AMBULANCE OFFICER’S USE OF BODY-WORN RECORDING DEVICES–TRIAL

(1)       This clause expires on 30 November 2020.

(2)       An ambulance officer is exempt from sections 7 (Prohibition on installation, use and maintenance of listening devices) and 8 (Installation, use and maintenance of optical surveillance devices without consent) of the Act in relation to the installation, use and maintenance of a body-worn recording device if the device is used in accordance with this clause.

(3)       A body-worn recording device is used in accordance with this clause only if–

(a)        the ambulance officer using the device is acting in the execution of the ambulance officer’s duty, and

(b)       the device is attached to the uniform of, or is otherwise worn by, an ambulance officer, and

(c)        at least one of the following apply to the use of the device by the ambulance officer–

(i)        before making a recording, the ambulance officer made a reasonable attempt to ensure that the persons likely to be recorded by the device are aware that the device is capable of recording images or sound, or both, or

(ii)       in the opinion of the ambulance officer, there is a significant risk of harm to the ambulance officer or another person, or

(iii)      the recording of images or sound, or both, by the device is inadvertent or unexpected.

(4) In this clause–

“body-worn recording device” means a listening device or optical surveillance device, or both, worn by a person.

“ambulance officer” means a paramedic or other member of staff of the NSW Health Service who is employed primarily in connection with the provision of ambulance services in the Ambulance Service of NSW (within the meaning of section 67A of the Health Services Act 1997).

First and foremost, this regulation only applies to employees of the Ambulance Service of NSW.  It there has nothing to say about, and no application to, private EMS providers or their employees, paramedics or not.   So there has been relevant changes to the legislation (above) but it is not of general application.  For paramedics not employed by NSWAS, nothing has changed.

This has been an issue, at least in NSW where paramedics objected to being required to pay for a working with children check – see for example ‘Paramedics giving free rides in protest against paying for Working With Children Checks’ ABC News (Online) 1 March 2018.

Today’s correspondent, from the ACT says:

Several years ago all staff at the ACT ESA were required to register and hold an ACT WWVP [Working with Vulnerable Persons] card, which for most will expire after three years in 2020 and require ESA staff to renew before their individual expiry dates..

The introduction of APHRA paramedic registration last year has prompted ACTAS management to (correctly) advise staff that APHRA registered members need not renew their ACT WWVP registration. Registered health professionals are deemed to have undertaken the required police checks under the APHRA umbrella legislation covering national paramedic registration.

After searching the internet to confirm this interpretation I discovered the following policy PDF from the Catholic Education office. It says:

21. Police officers, registered health professionals, lawyers, persons registered under the Aged Care legislation, and financial services licensees do not require WWVP Registration, provided their engagement is in their professional capacity.
22. Police officers, registered health professionals, lawyers, persons registered under the Aged Care Act 1997 (Cth), and financial services licensees under the Corporations Act must have a valid WWVP registration for any engagement in a personal/ non-professional capacity, such as a parent-volunteer at their child’s sporting event.

After consideration this document raises a number of issues:

1. It is probably not universally understood that registered health professionals are not required to apply for or renew their WWVP approval with ACT Government, thus leaving the health professional without a govt issued WWVP card.
2. The only way to substantiate a WWVP approval without a card is to provide a copy of an APHRA registration certificate. If a registered health professional wants a card to carry they will have to pay to renew their ACT Govt WWVP approval for 3 years.
3. A significant issue raised in the Catholic Education policy is that an APHRA approval is only acceptable when the individual is working in his/her capacity as a registered health professional. E.g. an ACTAS paramedic working operationally or an individual working as a volunteer or contract paramedic under the terms of registration. However an off-duty paramedic volunteering as a parent at school, scouts or with a youth sporting organisation cannot be recognised without producing an approved ACT or other state issued WWVP registration card.
4. It appears there is no current pathway for a registered health professional with APHRA pre-approval to apply for a discounted WWVP card without paying full fees for an additional government police check and the card issue.
5. Is the situation the same in the other states & territories where your readers reside?

The key, as always is to go to the law. In the ACT the law is the Working with Vulnerable People (Background Checking) Act 2011 (ACT). A person is required to be registered to engage in a regulated activity (s 12). A person is not required to be registered (s 12(2)(i)) if they are engaged in the regulated activity in their capacity as—

(i) a police officer, including a police officer (however described) of another jurisdiction; or

(ii) an AFP appointee within the meaning of the Australian Federal Police Act 1979 (Cwlth); or

(iii) a health practitioner; or

(iv) a lawyer; or

(v) a staff member of, or volunteer for, an approved provider under the Aged Care Act 1997 (Cwlth); or

(vi) a financial services licensee under the Corporations Act.

What is a regulated activity is defined in Schedule 1 to the Act. It includes ‘An activity or service … if the activity is conducted, or the service is provided, by— (a) an emergency service; or (b) a person acting on behalf of an emergency service.’ The Legislation Act 2001 (ACT) says that the term ‘emergency service’ in ACT legislation ‘means the ambulance service, the fire and rescue service, the rural fire service or the SES’. It also defines ‘ambulance service’ to mean ‘the ACT Ambulance Service established under the Emergencies Act 2004’. A ‘health practitioner’ is ‘a person registered under the Health Practitioner Regulation National Law (ACT) to practise a health profession (other than as a student)’ and so includes a paramedic.

What follows is that a paramedic (a ‘health practitioner’) working for ACT Ambulance (‘an emergency service’) is not required to be registered (ie to hold a working with vulnerable people registration card).

It’s true that the exemption only applies if the health practitioner is engaged in a regulated activity (and there are lots of them) in his or her capacity as a health practitioner (s 12(2)(i)).  If he or she is engaged in some other activity (eg working in childcare or as a part time party clown or providing respite care for vulnerable persons) then they would need to register for that activity.

The Access Canberra website says

An application fee of $135.00 applies to people who are employed to work with vulnerable people. Registration is free for volunteers, however if the volunteer also works in a regulated activity they are still required to pay the $135.00 fee.

It’s true, there is no discount for a person who is a registered health professional.  If the person is going to work in regulated activities in a capacity other than a registered health professional will have to pay the fee unless he or she is a volunteer.

Is the situation the same in other jurisdictions?

One cannot really answer the question for each jurisdiction. One obvious difference is that the ACT legislation is about working with vulnerable children.  NSW, on the other hand, has the Child Protection (Working with Children) Act 2012 (NSW).  Clearly the NSW Act is limited to children!  Section 8 says:

A worker must not engage in child-related work unless:

(a) the worker holds a working with children check clearance of a class applicable to the work…

Work as a health practitioner (which includes a paramedic) providing child health services (which includes ambulance services) is child-related work (Child Protection (Working with Children) Regulation 2013 (NSW) r 6).  There is no exemption for a ‘a working with children check clearance’ for registered health practitioners other than ‘a health practitioner in private practice, if the provision of services by the practitioner in the course of that practice does not ordinarily involve treatment of children without one or more other adults present’ (r 20(i)).  Accordingly, a paramedic in NSW must have a clearance whereas a paramedic in the ACT is not required to have one.

An ACT paramedic who crosses the border into NSW to provide services to a child is not required to have a NSW clearance, provided that the ‘period of [child-related] work does not exceed a total of 5 days in any period of 3 months’ (r 20(l)).

An ACT firefighter or other emergency service member working in NSW is not required to have a NSW clearance provided the ‘period of the child-related work in New South Wales does not exceed a total of 30 days in any calendar year’ (r 20(n)).

That does not answer the question for ‘every’ jurisdiction, but it does show that the situation is not the same in all jurisdictions!

On this blog when discussing liability for fire I’m usually discussing liability to pay damages for losses caused by the fire.  The outcome of prosecution arising from the Hazelwood fire in Victoria shows a different sort of liability. The operator of the mine, Hazelwood Power Corporation Pty Ltd has been found guilty of 10 breaches of the Occupational Health and Safety Act 2004 (Vic).

A report by KHQ Lawyers explains the prosecution and the potential consequence for others- you can read the KHQ report here:

• Bushfires & Safety Prosecution Risk – Company Found Guilty Of OHS Breaches (3 December 2019)

 

Today’s correspondent has:

… seen a growing number of residents being sent alerts by NSW RFS stating, something like “If you are in [affected area] seek shelter as the fire impacts. It is too late to leave.” (News article mentioning this kind of alert being issued in Shoalhaven NSW – https://www.sbs.com.au/news/emergency-fire-warnings-issued-in-nsw-as-winds-pick-up )

I appreciate that these messages are most likely intended to prevent people being trapped in vehicles when the fires hit, as opposed to trying to seek refuge in a structure which may provide greater protection.

My question is, what if these messages, for all their good intentions, are not the best advice for residents.

I can imagine that there might be situations where a resident trying to shelter in place may be their worst option, whereas trying to escape the area or seek refuge in a better prepared/constructed structure or a designated Neighbourhood Safer Place may be a better option. (I would have to think that people remaining in the affected area to the point that this kind of alert is issued would fall into two groups – people who have invested in preparing their property and are likely to be able to protect themselves effectively, and the second group being people who didn’t prepare, didn’t think to evacuate early, and are now stuck in an indefensible, unprepared structure.

I recognise that advice, much like your articles, can only be issued to a large audience in general terms, and so long as it is reasonable, and accurate for the majority, people in those edge cases are likely to find the advice imperfect, but I wonder whether someone could take this good (if brief) advice in a bad circumstance and end up with a worse outcome than if they had tried to escape, contrary to that advice.

If there is a nugget of a useful question here, which you want to address, I’d appreciate it.

I suppose the question is ‘could there be liability if it turns out the advice was, in the circumstances, less than optimum?’.

In phrasing it like that I think of the UK Grenfell Tower disaster where the London Fire Brigade warned people to stay in their apartments as that was considered the best advice but it turned out that in that building on that day it was not the best advice.  (The response to that fire has been the subject of a report which I have not yet full read and digested and so have not written on).  At the time of that fire (The Rt Hon Sir Martin Moore-Bick Grenfell Tower Inquiry: Phase 1 Report (October 2019) Vol 4, [29.16]), if a caller rang 999 (the UK equivalent of triple zero) to seek advice on what to do:

Brigade Control advise callers to “Get out and Stay out”, however if a call is received from a High rise building where Fire, Heat and Smoke are not affecting the caller, LFB would advise that:

‘You are usually safest to remain in your premises unless affected by fire, heat or smoke. If the situation changes you should leave your premises and dial 999, if you need further assistance.’

In that particular case however, it was poor advice.   The Phase 1 Report (Executive Summary [2.19]) says:

The firefighters who attended the tower displayed extraordinary courage and selfless devotion to duty, but the first incident commanders, although experienced, were of relatively junior rank. They were faced with a situation for which they had not been properly prepared. In particular:

a. None of them seem to have been able to conceive of the possibility of a general failure of compartmentation or of a need for mass evacuation; they neither truly seized control of the situation nor were able to change strategy…

c. The LFB continued to rely on the “stay put” strategy in place for Grenfell Tower which was not questioned, notwithstanding all the early indications that the building had suffered a total failure of compartmentation.

Whether that will lead to any liability of the LFB remains to be seen, but it is an example where a fire brigade gives advice based on standing procedures which are in turn (we hope) based on science and experience but in a particular case it can turn out to be the wrong advice. But is that the case in my correspondent’s example?

It is well documented that during the Black Saturday fires of 2009, Victorian police officers led a community to safety. The 2009 Victorian Bushfires Royal Commission (Final Report, Volume I, Chapter 10, p. 155) said:

Senior Constables Kenneth Dwight, Peter Collyer and Ian Hamill made the decision that evacuating the people gathered at the Gallipoli Park oval would be safer than allowing the people to stay there. They were confident that evacuation was possible because they had recently driven down the Buxton–Marysville road and it had been passable.

Senior Constables Dwight, Collyer and Hamill, along with Senior Constable Andrew Walker, who directed the people on the oval to drive in convoy to Alexandra, had to make snap judgments using very limited information. They exercised initiative and sound judgment. Although acknowledging that this approach went against prevailing policy and that the evacuation was risky because the Buxton–Marysville road could have become blocked, the Commission commends the officers for their bravery and decisiveness. They made a controversial decision, but they made it with the safety of the public foremost in their minds and successfully delivered those involved to a safer place.

Volunteers in two VICSES vehicles drove along the streets of Marysville trying to warn any residents remaining in the town. They used the vehicles’ public address system, calling out ‘SES Rescue, all vehicles evacuating Marysville are to head to Alexandra only’. When they reached the corner of Falls Road and Mount Kitchener Avenue, embers started coming in through the vehicles’ windows, and they decided it was too dangerous to stay. They went to the rear of the convoy, waiting as cars joined and advising people to keep going to Alexandra.

As the convoy drove north along the Buxton–Marysville road the smoke cleared. The police and the VICSES personnel were able to warn many residents along that road and in Buxton of the approaching fire by going from door to door.

The Commission commends the police and the VICSES volunteers involved in evacuating Marysville and Buxton for their courage and presence of mind.

In that situation the decision worked, and the police involved were rightly considered heroes.  It would have been a very different situation if all those involved had been led to their death. There will always be circumstances where people make a call based on the situation in front of them and where that does not accord with the official advice and sometimes, as in that event on Black Saturday, the outcome will be a success.

There will also be situations where l where people follow advice and it doesn’t work but that doesn’t make the advice negligent.  If you seek a medical opinion your doctor may prescribe medication that benefits most people, but you might be the person for whom it doesn’t work and you suffer debilitating side effects.  It would have been better for you to get some other advice but that does not mean the doctor’s recommendation was wrong or negligent.

To turn to the story that my correspondent refers to, the relevant warning in that story was ‘”If you are in the area … seek shelter as the fire impacts. It is too late to leave.”  That is not saying ‘seek shelter exactly where you are’.  If a person has followed RFS advice they have a bushfire plan which includes where they will shelter which may be someone else’s home or a neighbourhood safer place.   That is the advice is not necessarily shelter where you are but ‘to shelter in place … or seek refuge in a better prepared/constructed structure or a designated Neighbourhood Safer Place’.  But it is up to the person do determine what is the ‘better option’.

The advice such as that given in the quoted story is not telling people where to shelter, just that they should seek shelter.  My correspondent is correct that advice such as that on a website, emergency alert or via news media cannot be personal, it cannot tell people where to shelter or how they should react given the situation that they are facing at the moment.

Does this expose the fire service to potential legal action?  I have argued previously that failure to warn cases will be easier to run than others as there is little cost to issue warnings – see my papers:

• ‘The emerging legal issue of failure to warn’ (2012) 27(1) Australian Journal of Emergency Management 52-55.
• ‘Litigation for failure to warn of natural hazards and community resilience‘ (2008) 23(2) Australian Journal of Emergency Management 9-13.

That doesn’t however address this issue. Here a warning is being issued so the question is should a person follow the advice and suffer a harm would there be liability. The answer has to be almost certainly ‘no’.  The advice being issued by fire services is well informed by science (see https://www.bnhcrc.com.au/research/cluster/communications-warnings) and as noted it cannot be individualised or expected.

Further for legal consequences a person would have to prove, not merely assert, that if they had ignored the advice, they would have had a better outcome. That could never be shown.  If a person died whilst sheltering, the family may want to say ‘if they’d left, he/she would have survived’ but that could never be known.

Conclusion

Does generalised advice such as ‘”If you are in the area … seek shelter as the fire impacts. It is too late to leave” expose an agency such as the RFS to a risk of legal consequences if a person follows it and, for example, dies?   My answer is almost certainly ‘no’.

And that is my view without even beginning to ask if there is a duty to issue a warning (see for example Warragamba Winery Pty Ltd v State of New South Wales [2012] NSWSC 701 (July 19, 2012)) or the various protections that would be available to the RFS (for example Rural Fires Act 1997 (NSW) s 128 and Civil Liability Act 2002 (NSW) Part 5).

 

Today’s correspondent is unhappy with the response of the NSW RFS during recent fires, in particular:

… a fire break line constructed on our property by RFS, without being consulted, asked or told of even after it was constructed…

This so-called fire break, after construction, was marked on RFS mapping as too steep so effectively operationally useless, the helicopter landing area was dry dirt with much dust and small stones so operationally useless for helicopter landing and takeoff. There also exists an alternative line to construct a fire break in that location that could have been built with minimal disturbance along much less steep terrain contour, but myself as property owner was never asked for my local knowledge.

Regarding this and other RFS issues the first thing I did was to download and print and read the Rural Fires Act. Division 3 Rural fire brigades #28 (1) (2) appears to say that any property and environment damage is considered fire damage and claimable form one’s insurance. However, my insurance company claims that only those items listed on the insurance policy can be claimed for, hence they deny my claim. Is there any documentation or case law to support the view that one can claim property and environment damage from one’s insurance as appears to be indicated by #28 (1) (2)?

#30 Care to be taken.  Alternatively can one claim that RFS has a duty of care to do as little damage as possible and by not consulting with myself as the property owner with local knowledge, RFS has liability to remediate the area damaged by the construction of the fire break they built?

Rural Fires Act 1997 (NSW) s 28

This section says:

(1) Any damage to property that is caused by any person exercising any function conferred by or under this Division in good faith and any remedial work necessary to rectify damage to the environment is to be taken to be damage by fire within the meaning of any policy of insurance against fire covering the property so damaged.

(2) Any provision, stipulation, covenant or condition in any agreement that negates, limits or modifies or purports to negate, limit or modify the operation of this section is void and of no effect.

In response to my correspondent’s question ‘Is there any documentation or case law to support the view that one can claim property and environment damage from one’s insurance as appears to be indicated by #28 (1) (2)’ the documentation is s 28.  It means what it says.

The issue (which I suspect is what the insurer meant if someone said ‘only those items listed on the insurance policy can be claimed for’) is whether the property in question was insured for damage by fire.  If it was the damage done by the RFS was damage done by fire.  If the insurance did not cover damage by fire, then it won’t cover damage done by the RFS.   One can understand that buildings, crops, fences etc may all be insured for loss by fire, but other parts of the property may not be in part because it would be impossible to quantify the value of any loss.  But that is mere speculation on my part.

The answer here is ‘what did the insurance policy cover?’  If it would have paid out if the land in question had been damaged by fire, then it should pay out where it was damaged by the RFS during the course of firefighting operations.  If the insurance company don’t agree then it’s time to go to the Australian Financial Complaints Authority.

Rural Fires Act 1997 (NSW) Division 3

Section 23 says ‘An officer of a rural fire brigade or group of rural fire brigades may enter any premises for the purpose of exercising any function conferred or imposed on the officer by or under this Act.’

For the purpose of the Act ‘”premises” includes any building of any description or any part of a building and any land whether built on or not but does not include any building on, or land forming part of, managed lands.’  A landowners private land is ‘premises’ so entering the land to cut a fire break is entering premises.

Section 25 provides that

An officer of a rural fire brigade or group of rural fire brigades may, if persons are, or property is, endangered or likely to be endangered by a fire, incident or other emergency, do any of the following things:

(a) pull down, cut and remove or cause to be pulled down, cut and removed, fences on any land,

(b) destroy, pull down, shore up or remove, or cause to be destroyed, pulled down, shored up or removed, any buildings or structures or parts of buildings or structures on any land,

(c) destroy or remove or cause to be destroyed or removed any living or dead vegetation on any land,

(d) establish fire  breaks  on any land or cause fire  breaks  to be established on any land.

Before entering the ‘premises’ the owner must be notified (s 29) but not if ‘entry is required urgently and the case is one in which the Commissioner has authorised in writing (either generally or in a particular case) entry without notice.’  I will assume that in this case the requirements in s 29 have been met and entry was authorised without notice.

Section 30 says ‘In the exercise of a function under this Division [ie Division 3 Rural Fire Brigades], a person authorised to enter premises must do as little damage as possible.’

Finally s 128(1) says:

A matter or thing done or omitted to be done by a protected person or body does not, if the matter or thing was done in good faith for the purpose of executing any provision (other than section 33) of this or any other Act, subject such person personally, or the Crown, to any action, liability, claim or demand.

Discussion

There may be what appears to be an obvious conflict between s 25 and s 30.  Section 25 allows the RFS to do damage to property including building fire breaks, but s 30 says there must be ‘as little damage as possible’.  If the RFS are going to cut fences, pull down buildings and cut fire breaks they are going to do damage.  And if they have decided to cut ‘that’ fire trail the damage done to cut that trail is not avoidable.

The question from my correspondent’s point of view is ‘but what if there was an alternative that would have caused less damage?’

That is where s 128 comes into play.  When faced with a situation like a dynamic fire an incident controller has a number of options, no doubt each with ‘pros and cons’.  He or she has to make a decision in circumstances where, no doubt, other decisions could be made and which may end up being ‘better’ decisions.  To allow IC’s to operate the standard of care is reduced, it is not ‘did they act reasonably in the circumstances?’ but ‘did they act in good faith’ that is with a genuine attempt to perform their functions?’

In Electro Optic Systems Pty Ltd v State of New South Wales; West & Anor v State of New South Wales [2014] ACTCA 45 (the decision of the ACT Court of Appeal in the litigation arising from the 2003 Canberra fires and discussed in my post ACT Court of Appeal upholds verdict in favour of NSW over Canberra 2003 bushfires (November 3, 2014)) Jagot J accept (at [509]) that ‘The requirement of good faith requires a real attempt to discharge the required function and more than “honest ineptitude”’.

Katzmann J found that mere negligence does not prove an absence of good faith; if it did the section would have nothing to do ([634]). She said (at [635]):

In my opinion, for the purposes of s 128 a thing may be done (or omitted to be done) negligently but in good faith. Good faith may be made out where the relevant person does or fails to do something honestly, in good conscience, and for no improper or ulterior purpose, even if he or she acted or omitted to act negligently.

It would be my view that provided the IC was acting in good faith when he or she authorised the cutting of the fire trail, there can be no liability on the RFS even if it can be shown that another option may have caused less damage to the property.  The questions would be ‘did they do as little damage as possible when cutting that fire break’ not could they have adopted a different strategy that would have caused less damage.

If one could show that the decision of the IC or whoever authorised the cutting of the fire break was ‘so unreasonable that no authority having the special statutory power in question could properly consider the act or omission to be a reasonable exercise of, or failure to exercise, its power’ (Civil Liability Act 2002 (NSW) s 43A) then one may be able to sue the RFS for the cost of remediation. Short of that I would suggest given the outcome of decisions against fire brigades to date, the chance of success in any legal action would be next to nothing.

Conclusion

Incident controllers when facing a dynamic fire have to make decisions.  Landowners may want decisions that best protect, or do the least damage to their property but that is not the duty of the RFS.  As noted, the RFS has the power to do extensive damage to property.  It is to ensure that they can do that without looking over their shoulder at the law of negligence that ss 28 and 128 are there, along with express statutory authority to inflict damage on private property.

Having said that it should again be noted that this blog cannot give legal advice on particular cases and any person who does feel aggrieved should see a solicitor of their choice who can investigate the matter and how and why decisions were made to determine the legal position in the particular case.

 

 

 

 

 

 

 

Today’s correspondent asks

Is there a law where health professionals (paramedics) cannot schedule or diagnose other family members?

The simple answer is that there cannot be a law that people cannot treat or diagnose their family members; people do it all the time and in many cases must do so. The Paramedic Board’s Code of Conduct (Interim)  (June 2018) does not prohibit treating family members but it does caution against it.  The Code of Conduct says (at [3.14]):

3.14 Understanding boundaries

Good practice includes recognising the potential conflicts, risks and complexities of providing care to those in a close relationship, for example close friends, work colleagues and family members and that this can be inappropriate because of the lack of objectivity, possible discontinuity of care and risks to the practitioner or patient. When a practitioner chooses to provide care to those in a close relationship, good practice requires that:

• adequate records are kept
• confidentiality is maintained
• adequate assessment occurs
• appropriate consent is obtained to the circumstances which is acknowledged by both the practitioner and patient or client
• the personal relationship does not in any way impair clinical judgement, and
• at all times an option to discontinue care is maintained.

And at [8.11] Conflicts of interest:

Patients or clients rely on the independence and trustworthiness of practitioners for any advice or treatment offered. A conflict of interest in practice arises when a practitioner, entrusted with acting in the interests of a patient or client, also has financial, professional or personal interests or relationships with third parties which may affect their care of the patient or client…

When these interests compromise, or might reasonably be perceived by an independent observer to compromise the practitioner’s primary duty to the patient or client, practitioners must recognise and resolve this conflict in the best interests of the patient or client, practitioners must recognise and resolve this conflict in the best interests of the patient or client.

Where a practitioner is genuinely treating a family member, he or she has to bear in mind those provisions and act in the best interests of the patient.

But the focus in this question is on mental health law and, to put it into context, I’m told this arises in court proceedings where one party has claimed in evidence that the other party is suffering a mental illness and this diagnosis is based on that party’s experience as a paramedic.

If there really is, or has been, a therapeutic relationship between the parties, putting details of the patient’s diagnosis in an affidavit that is being used to advance the practitioners, and not the patient’s best interests is failing in all respects to act as an appropriate professional and is in breach of so much of the code of conduct as to be indefensible.

If, on the other hand, the paramedic does not have a therapeutic relationship with the person then I would expect that any judge would think the opinion in any affidavit would be irrelevant.  The conflict of interest is obvious and the person has not undertaken a proper or professional assessment of the other party – the alleged patient. That is not a diagnosis it is an abuse of power and, I would suggest, a breach of the obligation to maintain professional boundaries.

It’s not for me to give legal advice in particular cases but if I was a lawyer acting for a party in proceedings, I would consider seeking orders to have that material struck out of the other party’s affidavit on the basis that it is inadmissible.  It does however all depend on the jurisdiction and whether the rules of evidence apply.  Many judges may ‘allow it in’ but say that the obvious conflict is something they’ll consider when assessing the value of that evidence.  How to proceed requires legal advice from those involved in the matter not from the author of a blog.

(Note that this post is about vicarious liability to pay damages; it is not talking about criminal liability or professional disciplinary matters).

Vicarious liability is the rule that an employer is liable to pay damages to a person injured or who suffers loss due to the negligence of an employee.  It is a common myth (and one that has been again repeated to me in the last few days) that an employer can avoid liability – can leave the employee exposed – if they can show that the employee failed to strictly follow the employer’s rules and procedures.  That is wrong.  It’s a fairy tale used to scare people.  It is not the law.

The law says that vicarious liability extends to doing authorised acts in an unauthorised way (New South Wales v Lepore (2003) 212 CLR 511).

The most recent decision is the decision in Rodriguez & Sons Pty Ltd v Queensland Bulk Water Supply Authority trading as Seqwater (No 22) [2019] NSWSC 1657.  This is the class action against SEQWater and the State of Queensland over the 2011 Brisbane floods.  The judgement has been delivered in 15 chapters and will take me quite some time to get through and to provide a detailed report on what it might mean for the EM sector.  Even so, the court did issue a summary. The summary says

In conducting flood operations during the January 2011 Flood Event, the flood engineers were effectively obliged to abide by the Dams’ flood mitigation manual (the “Manual”). The Manual required the flood engineers use rainfall forecasts to select flood strategies and to guide releases. It also required the flood engineers to prioritise dam safety and the avoidance of urban flooding over the effects on rural communities of inundating rural bridges. The Court found that the flood engineers failed to comply with the Manual in these and other respects and that this, in turn, meant that by 11 January 2011 they were forced to make large releases of water to ensure Wivenhoe Dam did not fail. The Court found that the impugned actions of the flood engineers during the January 2011 Flood Event were not reasonable mistakes made in the heat of the moment, but systemic failures to apply the Manual that they had drafted.

Even so the defendants were Queensland Bulk Water Supply Authority trading as Seqwater (“Seqwater”), SunWater Ltd (“SunWater”) and the State of Queensland; not the engineers.  It is the defendants, and not the engineers that will be liable to pay the damages when they are calculated.

Vicarious liability only applies if the employee is negligent.  If, in this case, the engineers had strictly followed the manual they would not have been negligent.  If an employer could abandon an employee because they didn’t strictly follow procedures and processes the doctrine would be meaningless.

The justification for vicarious liability is not easy to explain – as the judges of the High Court of Australia noted in Hollis v Vabu (2001) 207 CLR 21 ‘A fully satisfactory rationale for the imposition of vicarious liability in the employment relationship has been slow to appear in the case law’ ([35], Gleeson CJ, Gaudron, Gummow, Kirby and Hayne JJ).   Some justifications are that the point of liability is to ensure that a person who is injured is compensated.  The ‘person’ that can best ensure that happens, either because they have the funds or the insurance policy, will be the business or government, not their employee.   Whether the employer is a business or a government delivering government services, they reap the rewards of the person’s labour, they pay the wages granted but the employee is acting in the employer’s interest not their own.  As the employer gets the benefit so too, they should take the risk.  The employer is also responsible for selecting employees, training them, building the relevant culture that may or may not prioritise safety etc.  All things that a person who engages with the business has no control over.   So the employer and not the employee is liable even when the employee or employees demonstrated ‘systemic failures to apply the Manual that they had drafted’.

And vicarious liability is a rule of law, not a choice.  A defendant like Queensland or SEQWater is not accepting liability on behalf of their employees because they want to, or support their employees (which they might).  They are liable because the law says that an employer is liable for the negligence of an employee.

Conclusion

Next time you hear ‘My [Your] employer wear liability but not if they can show that I [you] did not follow every procedure or policy in which case they’ll push me [you] under the bus and I’ll [you’ll] be personally liable’ know that the person saying that is wrong.

That is not how vicariously liability works.

That is an attempt to scare people into compliance.

It is a myth.

Vicarious liability applies when an employee (and I would also say, a volunteer) is negligent.  One grounds for being found negligent is failure to properly apply the employer’s policy and procedures.  Proof of that failure does not get the employer off the hook, it means they are liable.

Today’s question comes from

… a registered Paramedic, often responding to or transporting patients long distances after hours, late at night, early morning, and unfortunately these transports often result in collisions with kangaroos, causing damage to Ambulances, with Paramedics having to fill in insurance claims.

Recently the question came up as to whether filling out the insurance form would affect our personal insurance policies, no claim bonuses. I have contacted my personal insurance company and they state it does, but only new policies. I think this is very harsh as we would not usually be driving at these times due to high risk, but we are affected personally because of our occupation. Hope you can shed some light on this subject.

A contract of insurance is a contract of utmost good faith (Insurance Contracts Act 1984 (Cth) s 13).  An insured (in this context, the paramedic seeking to obtain or renew private insurance for his or her motor vehicle) has (s 21):

… a duty to disclose to the insurer, before the relevant contract of insurance is entered into, every matter that is known to the insured, being a matter that:

(a)  the insured knows to be a matter relevant to the decision of the insurer whether to accept the risk and, if so, on what terms; or

(b)  a reasonable person in the circumstances could be expected to know to be a matter so relevant, having regard to factors including, but not limited to:

(i)  the nature and extent of the insurance cover to be provided under the relevant contract of insurance; and

(ii)  the class of persons who would ordinarily be expected to apply for insurance cover of that kind.

The obvious way to know if a matter is relevant to the insurer is by reference to the questions they ask when one seeks to obtain, or renew, an insurance policy.

If a motor vehicle insurer asks about prior accidents, they are clearly not just asking about accidents in vehicles that they insure, as they would already have that information.  If a person was the driver in an accident in a car that they borrowed, or was insured by another company, they would want to know that so the information must be disclosed.  It stands to reason that they would also want to know about accidents when driving for work.

If the insurer asks about prior insurance claims that is a different matter.  The paramedic is not the insured in an ambulance accident, the ambulance service is.  The paramedic is filling in the form as agent for the ambulance service as they are the person who nows what happened.  The fact that they are the one filling in the form does not make them the ‘insured’ or the claimant.

The critical issue is to answer the insurers questions and to provide information (whether requested or not) that is relevant to their assessment of risk.  The fact that the accident happened, not that the paramedic did or did not fill out an insurance form, is the relevant fact.

Whether the disclosure is relevant to the risk assessment is a matter for the insurer. An insurer may accept that the work-related accident does not reflect on their risk with respect to a private car so it does not follow that the disclosure will affect the premium that the insurer offers so I cannot say whether the disclosure will affect the premium. But it does seem clear that if an insurer asks about earlier accidents, the information about the accident must be disclosed and that is the case whether the paramedic has filled in an insurance claim form or not.

The Australian Government’s Office of the Australian Information Commissioner has released a new Guide to Health Privacy (September 2019).  The Guide is:

…  written to help health service providers comply with their existing obligations under the Privacy Act 1988 (Privacy Act). It should be read in conjunction with the Privacy Act and the Australian Privacy Principles (APP) Guidelines.

Paramedics are not specifically mentioned in the guide (see in particular p. 1 and p. 3 examples of health service providers are listed).  Even so a health service is (p. 3):

… an activity performed in relation to an individual that is intended or claimed (expressly or otherwise) by the individual or person performing it:

• to assess, maintain or improve the individual’s health
• where the individual’s health cannot be maintained or improved — to manage the individual’s health
• to diagnose the individual’s illness, disability or injury
• to treat the individual’s illness, disability or injury or suspected illness, disability or injury
• to record the individual’s health for the purpose of assessing, maintaining, improving or managing the individual’s health

There can be no question that paramedics who conduct a patient assessment, diagnose and treat their illness or injury and keep patient care records are providing a relevant health service.

Health information (p. 4) means:

• information or an opinion about:
• the health, including an illness, disability or injury, (at any time) of an individual
• an individual’s expressed wishes about the future provision of health services to him or her
• a health service provided, or to be provided, to an individual

that is also personal information

• other personal information collected to provide, or in providing a health service to an individual. This includes personal details such as a patient’s name, address, admission and discharge dates, billing information and Medicare number…

Examples of health information include:

• information about an individual’s physical or mental health
• notes of an individual’s symptoms or diagnosis and the treatment given…

Again there can be no question that information recorded on a paramedics patient care record is health information.

The Guide deals with embedding privacy into health practice, collecting, using, disclosing, giving access to and correcting health information.  Relevantly to readers of this blog is what the guide says about sharing health information.

The guide reminds practitioners (at Chapter 3, p. 2) that they can disclose information:

… about a patient:

1. for the primary purpose for which you collected it, or
2. for a secondary purpose in certain circumstances…

The primary purpose is the specific main activity for which you collected the information.

Any other purpose is a ‘secondary purpose’. Information can be disclosed for a secondary purpose where:

• the patient would reasonably expect you to use or disclose the information for that purpose,

and

• the purpose is directly related to the primary purpose of collection.

The guide gives the following examples:

Example: Referral to a specialist

When a GP refers a patient to a specialist, most patients would expect the GP to disclose personal health information in the referral letter, and would expect the specialist to disclose information arising from the consultation back to the GP.

This general expectation reflects this common information handling practice in the health system. In addition, GPs and specialists usually advise their patient that they will contact the other practitioner in connection with the referral, and these discussions further inform a patient’s reasonable expectation of when you will disclose the health information.

Example: Treating team

A multi-disciplinary team approach to health care is common and usually involves sharing a patient’s health information within a ‘treating team’. It is important that the patient understands when and what information will be shared within a treating team, and who is part of the team. Once you have discussed this with your patient, there will be a reasonable expectation that health information will be disclosed within the treating team (provided the patient has not expressed concerns), and team members will not need to get the patient’s consent to uses and disclosures. If the patient has expressed concern about disclosures to certain team members, then you are likely to need consent to share information with that practitioner.

I suggest that it would be consistent with those examples to consider that a person would expect a paramedic to share health information with the treating team at a hospital.  In that case the practice of paramedics giving a handover to hospital triage nurse or ED doctor and handing over a copy of the patient care record would not be a breach of privacy.

The concept of the treating team however may be complicated.  First as discussed in my earlier post Giving feedback to paramedics (April 1, 2017) a paramedic who has treated a patient but who is no longer involved in their care is not, I would argue, any longer part of the treating team. Accordingly giving feedback to paramedics about how a patient was treated, their diagnosis, prognosis and outcomes after they have left the paramedic’s care is not sharing information with the treating team that is relevant to advancing the patient’s care.

Second, as discussed in my post Paramedics reading letters addressed to other treating health professionals (January 17, 2019) if a doctor has put a letter in a sealed envelope addressed to another practitioner the prima facie inference must be that the information is only intended for that other practitioner.  Neither the doctor, and more importantly the patient, might expect that information to be shared.  Before one opens the letter one cannot know what is in it and whether it is in fact relevant to paramedic practice.   By putting the letter in a sealed, addressed envelope, the author is by implication indicating that in his or her view the paramedic who may be called to transport the patient is not part of the treating team.

Finally, I still fail to see how ambulance services, or paramedics, can justify installing cameras to record health information for subsequent broadcast – How are reality ambulance shows legal? (Updated) (October 9, 2018). There can be no legitimate patient care interest in sharing information with a television producer, or TV audience.  Whatever value there is in these programs, it is not directly related to the primary purpose (the provision of paramedic care to the patient) for which the information was obtained.

And in response to the potential argument that such material is not used without consent, it is not the use that is the problem.  If the information is shared with the television crew, eg there is a discussion with the producer to determine what they may want to use, or a camera operator who discusses the case with the paramedics after the case, then the breach of privacy has occurred even if the footage never makes it onto TV.

This is an extract from a longer email chain.  I won’t reproduce it all but I infer that it refers to a fire that started in October but left a National Park and threatened private property on 12 November 2019, during a declared State of Emergency in NSW due to bushfires.  My correspondent says:

The 105000 ha fire started as a lightning strike, burnt 16 houses locally. The fire that hit me travelled about 10km in a few hours, no warnings issued, just vigilant neighbours.

To have a tanker show up, look and run is not impressive. If they were ordered out, is it not criminal negligence? There were 12 houses in the path of the fire left in the same predicament, left to fend for themselves.

The answer to the question ‘If they were ordered out, is it not criminal negligence?’ is ‘no’.

For criminal negligence (R v Wells [2016] NSWDC 169 [33]):

… the Crown [must] prove negligence of such a high standard that criminal punishment is appropriate. Negligent conduct penalised by the criminal law must evidence such a marked departure from the standard of care that the reasonable person would have exercised, that it merits criminal punishment.

The diagram below shows the difference between civil negligence and criminal negligence

First there has to be a duty of care.  As has been said often on this blog the fire brigades do not owe a duty of care to individuals: see

• Protecting the local community or following the IC’s command? (September 24, 2018);
• No liability for Yarnell (Arizona, USA) fire (April 3, 2017);
• Arizona State Forestry Division not liable to homeowners for property lost in the Yarnell Fire, 2013(May 8, 2015);
• ACT Court of Appeal upholds verdict in favour of NSW over Canberra 2003 bushfires(November 3, 2014);
• Queensland Fire and Rescue not liable after factory fire(October 3, 2014);
• NSW RFS village firefighting (April 9, 2014)
• Myer Stores Ltd v State Fire Commission[2012] TASSC 54 (August 24, 2012);
• Warragamba Winery Pty Ltd v State of New South Wales [2012] NSWSC 701(July 19, 2012); and
• Michael Eburn, ‘A case study of tort liability for fire damage’(2007) 22(1) Australian Journal of Emergency Management 44-48.

If the brigade owed a duty of care to my correspondent. they would owe a duty of care to everyone and they cannot respond to everyone.  Fire brigades have to make decisions about where to try to stop fires, where to allocate resources and what assets to prioritise. Those decisions may necessarily mean that some people are left to fend for themselves or some properties are lost to fire. Further the fire brigades can even make decisions to destroy properties by constructing fire breaks or setting back burns.  That right can be traced back to Malverer v Spinke (1538) 73 ER 79 and is inconsistent with the notion that the brigades have a duty to protect property they are authorised to destroy.

During the recent NSW fire emergency it was said (Rachel Rasker, ‘Catastrophic’ fire danger: what you need to know’ Sydney Morning Herald (Online) November 11, 2019):

Some fires may start and spread so quickly there is little time for a warning, police say.

There are not enough fire trucks for every house. If you call for help, you may not get it.

Do not expect a firetruck, the police warn. Do not expect a knock on the door. Do not expect a phone call.

With warnings like that a person would be hard pressed to claim that he or she had a reasonable reliance that the fire service would come and protect the property such that this reliance gave rise to a duty of care.

If there is no duty of care, there cannot be criminal negligence.

Even if there is a duty of care the duty is to act reasonably which has to take into account other competing obligations (in this case the obligation to provide fire protection across the state) and the level of resources available.  A single tanker may be ordered away from a location because it is required elsewhere or because it is too dangerous there for the crew.  Either way that would not be evidence of negligence and certainly not evidence of criminal negligence.

My correspondent says he had ‘50000l in tanks, three fire pumps set up’ and extensive fire experience.  If that was known to the RFS that may have been further reason to think it was reasonable to leave him to protect his property and divert scarce resources elsewhere.

Even if it was and houses were lost it would be necessary to show that the presence of the tanker and crew would have made a difference – almost impossible if the weather was catastrophic and there were 12 houses to protect.

Conclusion

The question I am answering is ‘To have a tanker show up, look and run is not impressive. If they were ordered out, is it not criminal negligence?’ The answer is ‘no, it is not criminal negligence’. It would not be negligence at all.

A NSW Paramedic asks:

We had a 30yr old palliative end of life care patient that we were transporting to hospice because the time was nearing when his family would have to say goodbye. He was in an out of consciousness. GCS 12 with us. But very agitated, moving constantly. The patient had ceased cancer treatment and verbally expressed his wishes for absolutely no interventions which his partner and family had expressed to us. The patient had not signed any legal care plan because in his mind, it was too much of a commitment to die. He just felt uncomfortable signing but was under end of life care with a palliative care team and only comfort measures for pain and nausea. Palliative care nurse was on scene, confirmed this. His partner and father were present asking us for no treatment, only transport.

The question are, legally…

1. In the absence of a care plan/NFR, can we justify bypassing two Emergency Departments to transport to the hospital where he is palliated.
2. If the patient passes away en route, is there a possibility that a member of his family can turn around later and ask why we did not provide fluids, etc to keep him alive long enough for everyone to be with him when the time comes…because there is no legal document stating to withhold fluids, supplemental oxygen, etc. Only his partner’s and father’s word. But legally, can there be a loss of registration/prosecution if someone in that family decided to prosecute.
3. What were our obligations in this instance? To commence treatment? To commence CPR? No legal documentation present. No enduring guardian.

We have spoken to many people understand the normal practices regarding this, but with the professional registration now, I think we want to know our obligations and confirmation that legally there are no repercussions.

There are two fundamental principles that apply here – the first is that a person is entitled to refuse treatment, any treatment, even if it is necessary to save their life.  Where forms are prescribed, and I note that there is no prescribed form and no relevant legislation in NSW, those forms are simply one way of communicating the patient’s wishes – not the only way – see Victorian decision on refusing medical treatment – reviewing the principles (November 24, 2018).   All medical end of life decision making legislation provides that the common law right to refuse treatment exists along with the legislative form meaning any effective communication of a patient’s wishes is sufficient – see for example Powers of Attorney Act 1998 (Qld) s 39; see also ““Please do not give me CPR”: ‘Do Not Resuscitate’ requests in retirement living” (September 9, 2019). See also all the posts that appear here – https://emergencylaw.wordpress.com/?s=refusing+treatment.

The second principle is that treatment should only be given in the best interests of the patient.  There is no obligation to provide futile or over burdensome treatment and in some circumstances to do so may be a battery and itself evidence of improper professional conduct (see Paramedics withholding futile treatment (June 14, 2019)).

In this case we are told the patient has ‘verbally expressed his wishes for absolutely no interventions’ and this has been confirmed by family members and the palliative care nurse. Further the request for ambulance transport is to transport the person to a hospice for palliative care, not to hospital for treatment.

To turn to the questions:

1. In the absence of a care plan/NFR, can we justify bypassing two Emergency Departments to transport to the hospital where he is palliated.

Absolutely.  You were tasked with transporting the person to a nominated destination because he was terminally ill.    There could be no justification for chosing to take him to an emergency department as he did not need emergency treatment.

2. If the patient passes away en route, is there a possibility that a member of his family can turn around later and ask why we did not provide fluids, etc to keep him alive long enough for everyone to be with him when the time comes…because there is no legal document stating to withhold fluids, supplemental oxygen, etc. Only his partner’s and father’s word. But legally, can there be a loss of registration/prosecution if someone in that family decided to prosecute.

Anything’s possible.  You could treat someone with all professional care and skill and someone could allege something.  Just because someone asks a question does not mean that there is no answer.  If someone was to ‘ask why we did not provide fluids, etc…’ the  answer would be ‘The treatment was not consented to nor indicated in the circumstances.’  The family cannot decide to prosecute, they could raise it with the paramedicine board who may indeed ask you to explain but that does not mean that there is not a fine explanation that they can communicate to the family.

The critical question is what could be ‘reasonably expected of a practitioner of an equivalent level of training or experience’.  That is what do you think your peers would do and if you are acting in accordance with that peer professional opinion you are acting as a reasonable and professional paramedic.  If you think the ‘normal practices’ are to treat the patient in accordance with his condition and wishes then that’s fine, because to ignore those wishes and to impose refused and futile treatment is to fail to act in your patient’s best interests and may be an assault and I would suggest is more likely to lead to professional action than honouring the obvious need if the patient is in fact in palliative care and the end stage of a terminal illness.

3. What were our obligations in this instance? To commence treatment? To commence CPR? No legal documentation present. No enduring guardian.

To act in the patient’s best interests and in accordance with their wishes, which do not have to be communicated on a prescribed form. Of course every case is different but based solely on the scenario described I would suggest the obligation was to allow the person to end his life with the greatest dignity possible.

 

Today’s correspondent has

… a question with regards to exemptions to NSW Road Rules 103 and 104, particularly with regards for exemptions to fire trucks to either Load Limit Signs and No Trucks signs.

My area (a bushfire prone area) has a number of roads with these restrictions in place as they are often winding and not ideal for trucks. These roads are also in some cases, emergency escape routes or routes that fire trucks would definitely need to travel on.

In an emergency (or just general travel), are there any cases where emergency vehicles are exempt from these restrictions? If not, are there any feasible load limit signs that the council could use to restrict heavy vehicles to a road without restricting fire trucks?

The Road Rules 2014 (NSW) rr 103 and 104 say:

103 LOAD LIMIT SIGNS

(1) A driver must not drive past a bridge load limit (gross mass) sign or gross load limit sign if the total of the gross mass (in tonnes) of the driver’s vehicle, and any vehicle connected to it, is more than the gross mass indicated by the sign.

(2) A driver must not drive past a bridge load limit (mass per axle group) sign if the mass (in tonnes) carried by an axle group of the driver’s vehicle, or any vehicle connected to it, is more than the mass indicated by the sign for the axle group.

Maximum penalty–20 penalty units.

(3) In this rule–

“vehicle” includes any load carried by the vehicle.

104 NO TRUCKS SIGNS

(1) A driver (except the driver of a bus) must not drive past a no trucks sign that has information on or with it indicating a mass if the GVM of the driver’s vehicle (or, if the driver is driving a combination, any vehicle in the combination) is more than that mass, unless the driver is permitted to drive the vehicle on a route passing the sign under another law of this jurisdiction.

(2) A driver (except the driver of a bus) must not drive past a no trucks sign that has information on or with it indicating a length if the length of the driver’s vehicle (or, if the driver is driving a combination, the length of the combination) is longer than that length, unless the driver is permitted to drive the vehicle on a route passing the sign under another law of this jurisdiction.

Maximum penalty–34 penalty units.

(3) The driver of a truck must not drive past a no trucks sign that has no information on or with it indicating a mass or length, unless the driver is permitted to drive the truck on a route passing the sign under another law of this jurisdiction.

Maximum penalty–20 penalty units.

(4) This rule does not apply to a driver if the destination of the driver lies beyond a no trucks sign and—

(a) there is no other route by which the driver’s vehicle could reach that destination, or

(b) any other route by which the driver’s vehicle could reach that destination would require the vehicle to pass another no trucks sign.

Rule 306 says

306 EXEMPTION FOR DRIVERS OF EMERGENCY VEHICLES

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

(a) in the circumstances–

(i) the driver is taking reasonable care, and

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

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

Discussion

Because rules 103 and 104 are a ‘provision of these Rules’ a fire brigade is not required to comply in an emergency.  It is important to remember that the driver of a fire appliance may be exempt from the road rules but he or she is not exempt from the laws of physics. Therefore, if the appliance exceeds the load limit of the road or bridge it may be dangerous to proceed and in those circumstances, it may be the case that the driver is not taking reasonable care and it is not reasonable to grant an exemption from r 103. No matter what the emergency it cannot help to drive over and collapse a bridge.

With respect to r 104 as quoted above, r 104(4) says that the ‘no truck’ rule does not apply where the driver’s destination ‘lies beyond’ the ‘no trucks sign’ and there is no other way to get there. That would mean that a fire appliance proceeding to a fire, or for any other purpose, may travel past a no truck sign to the firefighter’s destination.

If there is an alternative route to the destination then they should take it, but if there is an emergency and the ‘no truck’ route is the fastest and most direct route the exemption in r 306 could be applied.

 

 

This question follows from an earlier post on signage – Standards for first aid and AED signs (September 14, 2019). Today’s correspondent

… reflecting on the post from September … was wondering whether first aid providers have any further responsibility in this regard? I often see language like “event medical services” or “event health services” used around events and venues, in combination with the provider’s colour scheme, which seems to confuse patrons at times. Furthermore, I often notice extensive emergency and evacuation plans displayed which often include all kinds of information about a fire but rarely offer any indication of First Aid or AED locations – which I find rather odd. How often does a business face a building fire compared to medical emergencies or smaller injuries?

The answer is that no even first aid providers don’t have any particular obligations with respect to signage.

The critical issue for any person conducting a business or undertaking (a PCBU) is that they have to have emergency and first aid facilities in place.  That’s true whether the undertaking is a traditional office workplace or running a public function where event first aid providers have been contracted to provide first aid services to employees and visitors.

The Model Work Health and Safety Regulations (15 January 2019 and adopted in all states and territories other than WA and Victoria) say

42 Duty to provide first aid

(1) A person conducting a business or undertaking at a workplace must ensure:

(a) the provision of first aid equipment for the workplace; and

(b) that each worker at the workplace has access to the equipment; and

(c) access to facilities for the administration of first aid.

43 Duty to prepare, maintain and implement emergency plan

(1) A person conducting a business or undertaking at a workplace must ensure that an emergency plan is prepared for the workplace, that provides for the following:

(a) emergency procedures, including:

(i) an effective response to an emergency; and

(ii) evacuation procedures; and

(iii) notifying emergency service organisations at the earliest opportunity; and

(iv) medical treatment and assistance; and

(v) effective communication between the person authorised by the person conducting the business or undertaking to coordinate the emergency response and all persons at the workplace;…

(c) information, training and instruction to relevant workers in relation to implementing the emergency procedures.

One might think that a plan is of no effect unless it is communicated and one way to ensure that people have ‘access to facilities for the administration of first aid’ is to make sure they know where those facilities, whether it’s a staffed first aid post or an AED, actually are.  In some circumstances it might be said that a PCBU has failed to meet its duties to work health and safety if there is inadequate information or signage but that does depend on all the circumstances. There is not however a clear obligation or binding standard on signage.

It is interesting that the obligation with respect to an emergency plan includes an obligation to provide ‘information … to relevant workers in relation to implementing the emergency procedures’ and that may explain why my correspondent can ‘often notice extensive emergency and evacuation plans displayed which often include all kinds of information about a fire but rarely offer any indication of First Aid or AED locations’.

Of course a prudent PCBU would have regard to standards and the code of conduct for first aid but saying that takes us back to the original post – Standards for first aid and AED signs (September 14, 2019).

This question comes from a NSW SES volunteer so I’ll answer it with an SES focus. The question is:

A few of us were wonder about the powers of an Emergency Officer in NSW as per the SERM Act, but more so the appointment.

As per the Act

An emergency services officer is (s 32A):

(a) a police officer,

(b) an officer of Fire and Rescue NSW of or above the position of station commander,

(c) an officer of the State Emergency Service of or above the position of unit commander,

(d) a member of a rural fire brigade of or above the position of deputy captain,

(e) a Regional Emergency Management Officer,

(f) a member of the Ambulance Service of NSW of or above the rank of station officer.

If in ongoing incident, that may only be a “Level 2” size incident, under AIIMS, often I would assume the role of Incident Controller if it was a storm/flood etc. When I go off shift or not available, generally one of the Unit Deputies would become the Incident Controller.

So technically, that Deputy does not have the power of an Emergency Services Officer, so I would assume that any issue that requires that authority, that person would have to raise the issue back to me or another Unit Commander or above. Would that be the case?

I don’t really see it as an issue as if it is a large operation, it would generally be ramped up and I would only be called a Divisional Commander for my LGA and SES would run the IC at a Zone level. But, I thought it may have been wise for the SES to have Deputy Unit Commanders (like Deputy Captains are in the RFS) appointed as Emergency Officers.

There are two confusingly similar concepts here.  Emergency Services Officer is defined, as my correspondent has noted, in s 32A of the State Emergency and Rescue Management Act 1989 (NSW) (the SERM Act).   The role of the emergency services officer is only relevant during a declared state of emergency when the Minister can authorise those officers to take various measures to combat the emergency or ensure public safety (see SERM Act ss 37 and 37A).

Confusingly, the State Emergency Service Act 1989 (NSW) (the SES Act) s 15 refers to emergency officers.  An emergency officer is any person appointed by the Commissioner of the SES as an emergency officer.

You can see the confusion in the question I was asked  – my correspondent wrote (emphasis added):

A few of us were wonder about the powers of an Emergency Officer in NSW as per the SERM Act, but more so the appointment.

As per the Act

An emergency services officer is …

But the terms ‘emergency officer’ and ‘emergency services officer’ do not meant the same thing.  Then to add further complexity there is the position of ‘senior emergency officer’ – see NSW SES Emergency and Senior Emergency Officers, and the police (July 10, 2014).

If there is an event, that is not a declared state of emergency and the SES is the combat agency (SES Act s 19) then the various incident controllers are acting as the Commissioner’s delegate (ss 13 and 20) and the deputy unit controller may well be (if they are not all, already) appointed as an ‘emergency officer’ even if he or she is not an ‘emergency services officer’ or a ‘senior emergency officer’.  As the Commissioner’s delegate, he or she can take the action that the Commissioner can take (ss 22 and 22A).

In short a deputy unit controller appointed as the incident controller does not need the powers of an ‘emergency services officer’ as he or she has the powers of the Commissioner (subject of course to any limitations in their appointment or directions from the Commissioner).

In the event of a declared state of emergency an emergency services officer only has the powers given him or her by the Minister (or the Minister’s delegate). The Minister cannot give authority to act under the SERM Act ss 37 and 37A to a deputy unit controller, but even in those circumstances the SES and other emergency services Acts continue to apply, so the Commissioner can still delegate his or her authority under the SES Act to the Deputy Unit Controller or other emergency officers.

Further, under AIIMS the incident controller does not need all the powers.  The IC may create the plan but he or she may have to call on others.  In a simple flood an SES member may be the IC but he or she may, having decided that a road needs to be closed, have to ask the council as the roads authority to exercise their power to close the road.   Equally if in a state of emergency the deputy commander is the IC he or she may determine that a road needs to be closed and then ask the police or other senior emergency officer to give effect to the action plan and exercise their powers.

Conclusion

A person does not need to be an emergency services officer (as defined by the SERM Act s 32) to be an emergency officer (as defined by the SES Act s 15) and to exercise powers delegated to that person by the Commissioner of the SES under the SES Act.