Paramedics and the decriminalisation of public drunkenness in Victoria

Michael Eburn: Australian Emergency Law - 5 August, 2023 - 15:22

Today’s correspondent says:

As you may be aware, from early November public drunkenness will no longer be a criminal offence in the state of Victoria. Persons who are drunk in public but commit no other criminal offence will now be managed with a health response rather than a police response. I fully support these changes.

However, these changes have got me thinking about how paramedics will function as part of the health response. I believe the government will be funding new “sobering up centres” where alcohol effected persons can be transported to a safe place for support and care until they are sober. However, I believe patients can only be transported here if they consent to do so.

This then leads me to a question about what paramedics can do in a situation where a person being attended by paramedics is drunk in a public place but is refusing to attend a sobering up centre. The hypothetical person has committed no criminal offence, but paramedics believe that due to the person’s level of intoxication they do not have capacity to consent, and paramedics believe the patient may be a danger to themselves if left where they are. In this instance, would there be a legal basis for transporting the patient to hospital or another safe space (e.g. the patient’s residence with an appropriate carer) to ensure the patient’s safety?

It is my understanding that in this instance the patient could not be detained under section 351 [of the Mental Health Act 2014 (Vic)] by police unless the patient was also believed to be experiencing a mental illness alongside the intoxication. The Ambulance Victoria clinical guidelines suggest that when a patient does not have capacity to consent, paramedics should “act in the best interests of the patient” however I’m curious as to what the actual legislation to support this would be.

The changes to Victorian law are being made by the Summary Offences Amendment (Decriminalisation of Public Drunkenness) Act 2020. This Act will remove ss 13 to 16 from the Summary Offences Act 1966 (Vic). Those sections are:

13 Persons found drunk 

14 Persons found drunk and disorderly 

15 Arrest of person found drunk or drunk and disorderly 

16 Drunkards behaving in riotous or disorderly manner 

The Department of Health Public intoxication reform webpage says:

Ambulance Victoria and Victoria Police will continue to provide a response in instances of public intoxication where there are emergency health risks or community safety risks. In the absence of such risks, police officers will provide support to individuals in need of assistance, including referrals to the new health-led services where appropriate and available.

For police, in the absence of community safety risks, this may include providing general support such as contacting friends or family, arranging transport or contacting alternative local support services, or contacting an ambulance where an emergency health response is required. They may ultimately leave a person in place where support is no longer required, or consent is not provided. As they currently do, police will continue to contact ambulance services where a serious health risk is identified.

For ambulance services, there is expected to be limited change to current responses. Ambulance services will continue to respond to people who require emergency care and, if necessary transport them to emergency departments. They may also contact police if there are community safety risks.

There is to be no Victorian equivalent of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) s 206 (see Ashleigh Barraclough ‘Decision not to give Victoria Police new powers when public drunkenness is decriminalised draws union criticismABC News (Online) 17 January 2023)). The NSW section allows NSW Police to detain an intoxicated person because they are ‘in need of physical protection’.  That there is to be no equivalent in Victoria is not surprising, given the finding published on the Victorian Department of Health Public intoxication reform webpage that current laws:

…  have disproportionately impacted Aboriginal and/or Torres Strait Islander communities and people who would benefit from health and social support, rather than a criminal justice response…

Following decriminalisation, no person will be placed in a police cell or arrested solely on the basis of intoxication.

Victoria Police’s primary role in responding to people intoxicated in public will be limited to where community safety risks or criminality are present. The police response will be informed by the behaviour of the person, rather than the intoxication itself.

A section similar to the NSW section would be inconsistent with the stated aims. If police could still detain people, even if the basis was protective rather than criminal, it would still see people being put into police vehicles and cells, encourage conflict with police that may in turn lead to offending and criminalisation, and take people away from more culturally appropriate care.

Equally detention under Mental Health legislation would be inconsistent with the stated aims.  In Victoria police have the power to detain a person (Mental Health Act 2014 (Vic) s 351) if

(a)        the person appears to have mental illness; and

(b)       because of the person’s apparent mental illness, the person needs to be apprehended to prevent serious and imminent harm to the person or to another person.

Being intoxicated is not the same as being mentally ill. The mentally ill however may be intoxicated but if the aim is to get police to respond to the behaviour, not the intoxication per se, then just because a person is mentally ill and intoxicated would not alone, justify detention under that Act.

If the person is not committing a crime and is not a risk to community safety, they are free to accept the services offered, or not.  The Health Department envisages ambulance only being involved where the person requires emergency health care.

Paramedics require the patient’s consent or some other lawful justification or excuse before they can administer care to a patient. From that perspective it is important to remember that a person may be mentally ill but still competent to give or refuse consent to care; a person may not be competent to give or refuse consent but not be mentally ill (eg the unconscious, the young, the intoxicated etc).  Competence and mental illness are not synonymous. Equally a person may be intoxicated and competent even if the decision they make when intoxicated is not the decision they would make when sober, and even if they are likely to regret their decision in the morning.

A patient is not competent if they are not able to understand the information being provided and take that into account when making a decision. In the post Victorian decision on refusing medical treatment – reviewing the principles (November 24, 2018) I said:

The appropriate test for capacity, both at common law and under the Victorian legislation, is a functional test, that is the question is ‘whether, at the time the decision had to be made, the person could understand its nature and effects’.  It is not an outcome test that is whether it is a good or wise decision…

As Lord Donaldson MR (Butler-Sloss LJ agreeing) stated in In Re T:

[The] right of choice is not limited to decisions which others might regard as sensible. It exists notwithstanding that the reasons for making the choice are rational, irrational, unknown or even non-existent …

Butler-Sloss LJ added:

A decision to refuse medical treatment by a patient capable of making the decision does not have to be sensible, rational or well-considered.

An intoxicated person may reject advice, or having heard the advice make a bad decision but that does not deny their competence.  If, on the other hand, are so intoxicated that they cannot hear and comprehend what is being said to them, then care that is in their best interests and reasonable in all the circumstances can be provided. If for example the person is so intoxicated that they have passed out, then they can be treated as can any unconscious person.  The justification is not in the legislation but the common law  – see:

For paramedics, the decriminalisation of intoxication should make no difference to the practice.  Whilst public drunkenness is illegal, it does not affect the person’s right to give or refuse consent to treatment.  Whether the person has committed a criminal offence, or not, is irrelevant to the question of whether they can, or have, consented to paramedic care.

Conclusion

It’s not legislation, it’s the common law but the justification to treat the person who is not competent because of their intoxication is the same justification that allows paramedics to treat a person who is not competent because of their age, their injuries, their developmental disability, or any other cause of incompetence. 

If the patient is competent, they can refuse treatment even if, objectively, that is not a good idea or in their best interests.

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

Categories: Researchers

Paramedic dismissed for striking elderly patient

Michael Eburn: Australian Emergency Law - 31 July, 2023 - 07:00

I don’t know what it is about Queensland but I have previously reported on two Queensland paramedics who were sanctioned for striking their patient – see Two Queensland paramedics disciplined for striking their patients (February 15, 2023).  Today is another case where a Queensland paramedic was unsuccessful in an application to be reinstated after he was dismissed for slapping an elderly dementia patient across the face – Loveridge v State of Queensland (Queensland Ambulance Service) (No. 2) [2023] QIRC 207.

The gist of Mr Loveridge’s complaint was that the process adopted by Queensland Ambulance to investigate the allegations against him and to determine that the appropriate response was his dismissal, miscarried.  Deputy President Hartigan said that it would be a ‘short step’ to find that a failure by Queensland Ambulance to follow appropriate procedure would make the dismissal ‘unjust’ ([11]).

The complaint

Mr Loveridge and his paramedic partner (who was employed as part of a Graduate Paramedic Program) attended an aged care residential facility.  They were called to treat a woman with dementia who was being aggressive. There were allegations that the patient struck Mr Loveridge several times but these were ‘ineffectual’.  Mr Loveridge was heard to say, and admitted saying “If you hit me, I will have to defend myself” and “That’s assault” to the patient ([110]).  After their attendance the General Manager of the facility rang QAS and the following complaint was recorded ([42]):

Complaint against male officer on QAS unit.

Complainant stated that the male officer grabbed the patient by the face and slapped her.

He then verbally abused her, threatening her not to touch him again.

She states male officer then told nursing facility staff off for wasting hospital resources and told them that they should be managing the patient in the nursing facility.

The nursing home manager also reported the matter to police who determined to take no action ([53]).

Mr Loveridge was advised of the complaint the day it was made. Officers from QAS went to the facility and collected statements that had been prepared by staff reporting what they had observed. Mr Loveridge and his partner both denied the allegations.   

Ambulance service investigation

A formal investigation was commenced.  The investigator was ‘a Principal Complaints Officer employed in the Office of the Medical Director.  It was said that [she] … was independent of the QAS Gold Coast LASN [Local Ambulance Service Network] although she was an employee of the QAS’ ([64]). The investigator conducted interviews with staff from the aged care facility and with Mr Loveridge. 

Following receipt of the investigator’s report, Mr Loveridge was invited to ‘show cause’ why the delegate should not find that there had been misconduct.   In the course of letters between QAS and Mr Loveridge gave this version of events (at [72]):

The only time my right hand is free is when I have pulled the [sic] my hand from of [sic] the patients [sic] grip and quickly reached up above her left shoulder, next to her head, to grab the seatbelt.  I believe that this action has mistakenly given the impression that I have struck the patient when this is not the case.

All the witnesses from the facility stood by their original statements denying the possibility that what they saw was the situation described by Mr Loveridge.  One said:

I definitely seen [sic] the male paramedic force his hand onto the elderly female residents [sic] face, then slap her. After he her warned twice that he would do so.

My observations were not mistaken, I am sure.

Deputy Commissioner Emery determined that the allegation that Mr Loveridge had struck the patient was established and this constituted misconduct and that Mr Emery was considering the option of terminating Mr Loveridge’s employment. Mr Loveridge was invited to make a response which he did both in person and in writing.  Mr Emery then determined that the appropriate course was to terminate Mr Loveridge’s employment.

The industrial relations commission

The Commission role was to ensure that the process adopted was correct, not to make its own decision no whether or not Mr Loveridge should have been dismissed. To do that the Commissioner reviewed the material that was before Deputy Commissioner Emery and given the challenge to finding of misconduct, most of those witnesses also gave evidence before the Commission. 

With respect to finding that Mr Loveridge was guilty of misconduct, Her Honour said (at [289]-[292]):

I consider that it was available on the evidence before Mr Emery for him to form this conclusion. I do not accept Mr Loveridge’s contentions that Mr Emery was careless in performing his duties and making the decision.

I consider Mr Emery understood the seriousness of the allegation and undertook a process of considering the material in a careful and thorough manner.

I further accept that Mr Emery exercised an independent and open mind when considering the evidence. I accept that he did not have regard to the findings and conclusions of Ms Brightwell and consequently formed his own view on the material.

On the evidence before the Commission, there were four witnesses who deposed to seeing Mr Loveridge strike the patient.

The Commission determined (at [293]-[294]) that Mr Loveridge’s partner had given at least three different accounts starting with denying any wrongdoing to later saying she had seen Mr Loveridge strike the patient. Deputy President Hartigan took the view that her evidence could not be relied upon but the evidence of the staff at the facility was persuasive. Accordingly, she said (at [308]) ‘… on the evidence before the Commission, I am satisfied that Mr Loveridge engaged in the conduct as alleged. Further, given the nature of the conduct, I am satisfied that Mr Loveridge is guilty of misconduct within the meaning of s 18A of the AS Act.’

The issue then was whether the decision to terminate Mr Loveridge’s employment was ‘harsh, unjust or unreasonable’.  Her Honour, and Deputy Commissioner Emery took into account the impact termination would have on Mr Loveridge, but, said Deputy President Hartigan (at [324]-[327]):

Ultimately, I conclude, that Mr Loveridge, as a very senior and long-term employee with the QAS, did know that the conduct in which he engaged in with respect to the allegations was not of a standard expected of a senior paramedic. I have formed the view, having regard to evidence that Mr Loveridge’s conduct on 11 June 2019 radically deviated from the expected conduct of a senior paramedic. 

Relevantly, I am satisfied that the substantiated conduct is of such a nature that it was a completely inappropriate reaction to the situation, that it put the safety of a patient at actual risk of harm, that it did not adhere to the standards of the QAS and that it presented as a reputational risk to the QAS.

In my view, having regard to his position and the trust and confidence placed in him by the QAS, Mr Loveridge’s dismissal was proportionate to the conduct in which he engaged in respect of the substantiated allegations.

For this reason, I have concluded that Mr Loveridge’s dismissal was not disproportionate to the substantiated conduct.

Paramedics are at risk of assault in their work and are allowed to defend themselves and to use restraints in accordance with their clinical practice guidelines. But, as Deputy Commissioner Emery said (at [211]):

… the circumstances that Mr Loveridge found himself in on that day that led to him slapping an elderly woman are not uncommon. I get that the context of that environment was a little bit aggressive, and, you know, but it’s not uncommon and something that a paramedic is trained to and should be able to deal with at any given time. There are far more volatile circumstances that occur in our workplace as well that should not result in the assaulting of a patient either.

He did not argue that he hit her because he feared for his safety or, to use the words from Zecevic v DPP [1987] HCA 26, because he ‘believed upon reasonable grounds that it was necessary in self-defence to do what he did.’  He denied that he hit her at all, but the Ambulance Deputy Commissioner and the Industrial Relations Commission Deputy President both found that the evidence of the other witnesses established that he did.

Given that finding both the Ambulance Deputy Commissioner and the Industrial Relations Commission Deputy President determined that termination was the appropriate response As Deputy Commissioner Emery put it in the letter advising Mr Loveridge that he employment was to be terminated ([311]):

… the QAS holds a unique position of trust and confidence within the community. Our paramedics are welcomed into the patient’s home and their lives at some of the most vulnerable times the patient can experience.

Whilst I understand your desire to remain an Advanced Care Paramedic (ACP) with QAS and while I appreciate the difficulties you will face in securing alternative employment, your conduct whilst employed in the role of a paramedic with QAS was entirely inconsistent with the position our organisation, and its employees hold within the community.

Deputy President Hartigan said (at [332]):

Mr Loveridge did not meet the relevant requirements imposed upon him as an employee by a standard of conduct of the Code of Conduct in respect of the allegation and consequently contravened that standard. The substantiated conduct is serious and I am satisfied that it has ended the QAS’s trust and confidence in Mr Loveridge as an employee of the QAS. For these reasons, Mr Loveridge’s dismissal was proportionate to the conduct.

Mr Loveridge’s termination was neither ‘harsh, unjust or unreasonable’ and his application to be reinstated was dismissed.

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

Categories: Researchers

Protesting paramedic’s dismissal confirmed

Michael Eburn: Australian Emergency Law - 30 July, 2023 - 07:00

I have previously reported on the fate of paramedic Sally-Anne John who was suspended by the NSW Paramedicine Council after taking part in a rally protesting against measures adopted in NSW to deal with the COVID-19 pandemic and publishing comments about the police on social media – see NSW Paramedic suspended after participation in COVID-19 protests. (April 14, 2023).  She admitted saying the following words on her social media live stream from the protest:

“Of course the police have turned this peaceful protest into shit. As usual its always the fucking cops that do this. Always turn something peaceful into something it shouldn’t be. Fucking pigs!”

“They’ve started everything. It was a peaceful protest. We were doing nothing wrong. Then they come in with the tear gas and the heavy handedness… It’s just bullshit.”

“And they’re supposed to serve us. And we pay them.”

“Lockdown is not the way to go. But they’re dictated by higher up to do what they’re doing today.”

“Everyone should just come around and come in front the back of the police and just push them along.”

“I think everyone should stand their ground actually. The men should be up there. Let’s get the men up there! Let’s go! Let the men stand the ground. You guys, get up there! Stand your ground!”

“The coppers are shitting themselves. They’re all standing back to back. They’re totally fucking outnumbered.

“And no we will not go home. Fuck you and your comments on here. You fucking go home. Least I care about my country and my family. You fucking arseholes sitting on your arse there in front of the computer. Doing fucking jackshit and taking the fucking vaccine. No we won’t go home. We are home. This is our home. Australia’s our home. And we’re trying to protect it. All you people saying go home…psshtt, youse got no idea. You’ve been brainwashed. Youse are all brainwashed. Is it nice to know you don’t have a free thought in your head. That you do everything the government tells you. Pssshht no thank you. And regardless of what job I have, I still am able to think about things. I still have an opinion and a thought. And know this wrong. But all you people, you sheep who like to lap it up. ‘Oh I’m going to get my vaccine’. Yeah right, it’s not even a vaccine. You should do your research.” (Sic)

The result of disciplinary proceedings under the Health Practitioner Regulation National Law was that Ms John’s registration as a paramedic was suspended for three months.  She was allowed to return to practice after that time subject to some conditions.

Ms John was also convicted of an offence contrary to the Public Health Act 2010 (NSW) because she attended the protest when she was required to be self-isolating after exposure to COVID-19. The offence was proved but she was released on a ‘conditional release order’ (in older terms, a good behaviour bond) but without conviction.

Apart from disciplinary proceedings and criminal proceedings, Ms John was dismissed from her position as a paramedic with NSW Ambulance.  In John v Health Secretary in respect of the Ambulance Service of NSW [2023] NSWIRComm 1073 (26 July 2023) Commissioner Sloan dealt with her application to be reinstated to her position on the basis that the decision to dismiss here was ‘unfair’.  To be unfair a dismissal must be ‘harsh, unreasonable or unjust’ (Industrial Relations Act 1996 (NSW) s 84. Because Ms John was employed by the NSW Government the relevant law is in the state Act, not the Fair Work Act 2009 (Cth) but the test of ‘unfairness’ is the same).

In an internal disciplinary process, NSW Ambulance raised seven allegations of misconduct.

Four related to Ms John’s behaviour [at the protest] on 24 July 2021, which was alleged to have been in breach of the NSW Health Code of Conduct Policy Directive PD2015_049, the NSW Ambulance Social Media Operating Procedure PRO2019_109 and/or the Code of Conduct for Registered Health Practitioners, as administered by the Australian Health Practitioners Regulatory Agency (“AHPRA”). One allegation arose from the charge and plea of guilty in the Local Court. Two related to Ms John’s alleged failure to report to NSW Ambulance, respectively, the criminal charge and the suspension of her registration on 30 July 2021.

Ms John was advised of the complaints and invited to respond. ‘She admitted to the allegations and did not dispute that it was her voice on the recordings or the words attributed to her. She expressed contrition and remorse’ ([14]).  She was advised that the relevant delegate was considering her dismissal and she was given the opportunity to make submissions with respect to the appropriate sanctions. She was dismissed on 17 March 2023.

Given the serious nature of her breach, in particular a wilful breach of the self-isolation requirements and the language inciting violence toward police, Commissioner Sloan found that the decision to terminate her employment was not ‘unjust’ ([43]).

Ambulance followed the appropriate process to inform Ms John of the allegations against her and allowed her to respond. The dismissal was not ‘unreasonable’ ([44]).

That left the question of whether the decision was ‘harsh’.  A consideration of whether the decision was ‘hash’ requires a balance to be struck between the offending conduct and any factors in mitigation including length of employment and employment record ([46]).  To a certain extent Ms John was ‘hoist on her own petard’. Commissioner Sloan said ([48]-[50]):

I accept that Ms John has expressed remorse and contrition, including from the day of the protest itself. That is in her favour. However, it is qualified, to some extent, by the following submissions she made in reply in these proceedings:

“Management goes on and on about policies and procedures, all neatly tied up in a bow and emailed to the masses who are burnt out and not only during the pandemic. The problem with large organisations, the bigger they get the more policies and procedures and then throw in all the policies and procedures from all the linked organisations and you’re under a pile of red tape and paper. Only a robot would be able to decipher and take in all this information WHILST working a 4 x 12+ hr shifts per week. Do you really think an on-road paramedic who is up at 5am in the morning, works a 12 + hr shift has the time to read all the emails, policies, and procedures[?] …The majority of us working paramedics are out there just earning a living luckily doing something we love and are good at in order to put food on the table for our family whilst helping out community when they need us. Not the world that management live in where they are sitting in an air-conditioned office all day, pushing the send button on emails that they have absolutely no idea if the masses are reading them. Those in management and leadership roles often lose sight of the fact that people are not machines, systems or projects and cannot be ‘managed’ as if they are inanimate objects incapable of thought and emotion. When do you consider the ‘human factor’[?]”

These submissions contain some echo of the comments made by Ms John during her livestream on 24 July 2021. Her reference to the “the world that management live in where they are sitting in an air-conditioned office all day, pushing the send button on emails that they have absolutely no idea if the masses are reading them” echoes the comments she made on 24 July 2021 to people “sitting on your arse there in front of your computer”.

The submissions also call into question the extent to which I could have confidence that Ms John would abide by NSW Ambulance policies and procedures were she to be reinstated. There is more to being a paramedic than clinical, on-the-road skills.

The Commissioner found the decision to dismiss was not ‘harsh’.  The application was dismissed.

Discussion

Ms John had been a paramedic for 18 years. She lost her career and has been subject to public criticism (including having her cases discussed on this blog) over a decision she made on one day, but, as she said (at [53]) “you cannot change what you have done but you have got to accept responsibility for what you have done and move on from it”.

In her submissions she gave details of her personal circumstances to put her behaviour into context. This circumstances, said the Commissioner (at [34]), ‘do not exonerate her from her conduct. They may help to explain why she felt it necessary to support her husband by attending the protest on 24 July 2021; they do not explain her decision to livestream the event, much less the damaging and offensive commentary which she offered to accompany it.’ 

Her decision to attack management in her submissions, and to imply that the issue was a breach of policy that it was unreasonable to expect her to know rather than an obvious and foolish departure of accepted conduct, did not help her case. As the Commissioner said (at [40]) ‘…as NSW Ambulance submitted, you do not need a policy to know that what Ms John did was wrong. NSW Ambulance submitted, with some justification, that “[i]t is difficult to imagine a more serious case of misuse of social media”.’

Minds could differ on whether the decision to terminate her employment given the periods of suspension, both from her employment and as a paramedic, was harsh.  One could argue that her suspension, the imposition of conditions on her registration and the outcome of the criminal proceedings were all determined to allow her to demonstrate that she understood the seriousness of her actions.  If she’s ‘done the time’ then arguably she has a clean slate.  And to a certain extent that is true. Ms John remains a registered paramedic and it is open to any other ambulance service (public or private) to employ her if they want to. The question in this case was whether NSW Ambulance was compelled to continue her employment. 

The Commission found that they were not. As Commissioner Sloan said (at [55]):

… I am not persuaded that Ms John’s dismissal was disproportionate to the gravity of the misconduct in which she engaged. I have given careful consideration to Ms John’s expressions of remorse and contrition. However, the question is not whether the Commission ought to give Ms John another chance, but whether it was harsh for NSW Ambulance not to have done so.

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

Categories: Researchers

Coroner’s findings after death of Ambulance Tasmania paramedic

Michael Eburn: Australian Emergency Law - 29 July, 2023 - 14:13

In my post NSW Ambulance fined for breach of Work Health and Safety legislation (May 3, 2023) I discussed the prosecution of NSW Ambulance for failing to properly manage and audit the use of scheduled drugs. This allowed paramedics to misappropriate drugs for their own use putting them, their colleagues and their patients at risk.  One paramedic, suspected of taking drugs, took his own life after being presented with those allegations.

It appears a very similar situation arose in Tasmania and was subject to an inquiry by the Tasmanian Coroner – see Findings, Comments and Recommendations of Coroner Olivia McTaggart following the holding of an inquest under the Coroners Act 1995 into the death of: DAMIAN MICHAEL CRUMP (5 July 2023).

The coroner said (pp. 115-116):

Mr Crump ended his life [on 23 December 2016] following a lengthy course of stealing dangerous drugs from AT, his employer. He was a highly intelligent Intensive Care Paramedic who loved his work and enthusiastically imparted his clinical knowledge to many of his colleagues.

Unfortunately, he suffered long-standing mental illness and unresolved psychological issues. His poor mental health was unrelated to his work at AT. Nevertheless, his practices and behaviour at work regularly exceeded appropriate boundaries and, in the weeks before his death, alarmingly so.

He was never adequately called to account for his behaviour by AT management, the spoken and unspoken view being “That’s just Crumpy!” Further, it was known amongst his colleagues and some managers of his longstanding intention to die by suicide before the age of 40 years. This was not taken further as a welfare issue, despite his deteriorating mental state.

The coronial investigation highlighted severe resourcing deficits in the organisation, inadequate management of staff and a culture of tolerating unacceptable behaviour. These factors substantially contributed to Mr Crump’s behaviour and welfare not being dealt with and his drug thefts remaining undetected. He was therefore able to remain working as an operational Intensive Care Paramedic.

His manager and close friend took it upon herself to look after him, knowing of his mental illness and believing that he was honest with her. He was, however, dishonest about his medical treatment and his drug addiction. He treated her and other managers disrespectfully at times and was generally disrespectful of authority within the workplace. She became conflicted in her managerial role when she was required to report her belief that he had been stealing AT medication to police, and to initiate an internal investigation. There were no processes in AT to ensure that an internal investigation was progressed at all, and therefore Mr Crump was not formally identified as being responsible.

Numerous other opportunities existed for AT to properly deal with his behaviour and actions, including [a] … serious ambulance incident nine days before his death. Appropriate intervention may have uncovered his addiction and thefts at that time.

Because of the unfeasibly large workload of AT managers and their lack of adequate training, there was no proper auditing of medication and there were no pathways to deal with Mr Crump’s behaviour or welfare. He was therefore able to remain at work and able to keep stealing Schedule 8 medications from the drug store.

In the course of her inquiry the coroner identified the following issues that may have contributed to Mr Crump’s death:

Inadequate manager to staff ratios

Duty Managers had far too many paramedics, volunteer ambulance officers and patient transport officers to manage to be able to provide effective guidance or supervision.  Figures ranged from 200 to 440 people reporting to a single manager. Apart from staff welfare functions they had to manage the day to day operations looking after rosters, fleet management etc. The coroner said (at p. 86) ‘… it is difficult to be overly critical of individuals in AT, especially those at the Duty Manager level. They were required to operate with little training and support in a system that had not been conducive to sound and efficient decision-making for a long while’.

This span of control made it impossible for the duty managers to deal with what was described as Mr Crump’s ‘inappropriate behaviours, and the reasons for them’ (p. 91).

The coroner was critical of one manager who was also a personal friend of Mr Crump’s. The coroner was of the view that this manager was too close to Mr Crump to be able to properly report and manage his behaviour and take action when he was identified as a suspect in the misappropriation of drugs.

Safety Reporting and Learning System

Ambulance Tasmania had an electronic Safety Reporting and Learning System (SRLS). Issues were reported into the system but the ‘resolution of a large volume of individual reports [was] a “completely overwhelming” task’ (p. 92). There was evidence that reports were not read and were closed off without being properly dealt with.  In Mr Crump’s case some issues were raised with managers who discouraged their junior staff from making an SRLS report. The coroner said (p. 92) ‘The SRLS was not effective to resolve issues or complaints in a timely manner, and therefore staff members were reluctant to use it to report incidents’.

The Bus as a means of management

The bus was a metaphorical bus that difficult paramedics were put on to ‘drive them out’ of the ambulance service. Paramedics ‘on the bus’ were ‘treated in a way that they may reasonably perceive as being bullying, harassing, intimidating, marginalising’ (p. 94). The Coroner said:

… The Bus developed as a management technique which at least several managers considered a viable pathway to deal with risks or disciplinary issues. Of course, such a construct was unfair, lacked transparency and induced significant angst in AT employees.

In my view, The Bus was only able to become an entrenched technique for behaviour modification because of the lack of sufficient leadership and clear pathways for formal disciplinary and welfare processes.

It was accepted that the Bus was abolished in 2014 but even after that time ‘there remained a lack of formal procedures for disciplinary action in respect of AT employees and a culture of reluctance of reporting inappropriate behaviour’.  As such colleagues were unwilling to report Mr Crump’s behaviour in part due to a sense of loyalty, a recognition that his career would be jeopardised rather than his welfare advanced and a fear of repercussions to themselves.

The coroner’s recommendations

Some of the coroner’s recommendations were that Ambulance Tasmania:

  1. Implement random drug and alcohol testing for all employees as a matter of priority.
  2. Conduct regular reviews of the operation of its policies relating to the management, storage, safekeeping, handling and accountability of drugs to ensure that the policies are effective and contemporary.
  3. Provide regular training for all staff and managers regarding their obligations in respect of each policy relating to the management, storage, safekeeping, handling and accountability of drugs held by Ambulance Tasmania; and implement and maintain robust systems of accountability that ensure a high degree of compliance.
  4. Implement a system of regular mandatory psychological assessments for its employees in order to identify mental health and psychological issues, and any changes, over the whole period of their employment with Ambulance Tasmania.
  5. Continue to make efforts to reduce the span of control for duty managers and other managers.
  6. Regularly review the ability of front line managers to undertake their duties of supervision adequately.
  7. Provide regular training for all managers in managing staff generally and in responding to mental health issues.
  8. Provide training for managers who are required to conduct or oversee investigations under a policy; this training to include knowledge of the policy, basic investigation skills, reporting requirements in SRLS or other electronic platform and identifying and managing conflicts of interest.
What’s an ambulance service to do?

This is a necessarily complex area. Ambulance services and paramedics have legal and ethical duties to look out for the welfare of their staff and colleagues. Paramedics are reminded that they have a professional obligation to report colleagues who practice paramedicine whilst under the influence of alcohol or other drugs (Health Practitioner Regulation National Law, definition of ‘notifiable conduct’).

Where a paramedic is abusing drugs and suffering a mental health crisis, they may be a threat to themselves, their colleagues, patients, and the community. Reporting them may however lead to a punitive response (see for example Dismissal of Queensland paramedic for unlawful drug use on duty confirmed (June 29, 2019)).  

The coroner recognised that a factor that may have contributed to Mr Crump’s death ‘may have been a failure of AT to appropriately manage him and, if necessary, discipline him or terminate his employment (p. 7).  But the job may be all that is holding the person together. In evidence, Dr Sale a consultant psychiatrist, said (at p. 44) that if Mr Crump had been dismissed:

“I think he would’ve been devastated, because it’s obvious from the stuff I’ve been reading and these various statements by colleagues and, I think, Dr Frampton and a couple of others that the job was his life. This was a man who, in retrospect, is somewhat psychologically fragile for some time and that one of the things that kept him together was his job.

The Manager who was also Mr Crump’s friend was torn between ‘understanding that her role required managing him appropriately; but, as his friend, wanting to ensure that he remained in his work, with the loss of his job potentially catastrophic for him’ (p. 68).

Ambulance services cannot compel their staff to seek mental health treatment. In Hegarty v Queensland Ambulance [2007] QCA 366, a claim for damages by a paramedic for PTSD, Keane JA said ([43]-[46]):

The area of debate in the present case concerned the extent to which the defendant was duty-bound to ensure that its superior officers should intervene with individual ambulance officers in relation to possible signs of deterioration in their mental health. The private and personal nature of psychological illness, and the consequential difficulties which attend the discharge of an employer’s duty in this respect, must be acknowledged as important considerations. The dignity of employees, and their entitlement to be free of harassment and intimidation, are also relevant to the content of the duty asserted by the plaintiff. Issues of some complexity arise in relation to when and how intervention by an employer to prevent mental illness should occur, and the likelihood that such intervention would be successful in ameliorating the plaintiff’s problems.

The case made for the plaintiff at trial, and which was ultimately accepted by the learned trial judge, was that the plaintiff’s supervisors should have been trained to identify possible signs of stress and invited him to seek professional help. The plaintiff’s case means that the employer must be concerned, not only with non-performance by the employee as an employee, but also with possible episodes of unhappiness in the employee’s private life. It is not self-evidently necessary or desirable that employees’ private lives should be subject to an employer’s scrutiny. To some extent in this case, the plaintiff’s case, as it was developed in the course of evidence and in argument in this Court, depended on an assertion of a culpable failure by the plaintiff’s superiors to scrutinise aspects of the plaintiff’s private life away from work.

Issues did necessarily arise, however, as to the identification of a sufficient basis for the making of a suggestion by the defendant that the plaintiff seek psychological assessment and treatment. The resolution of this issue is fraught with difficulties peculiar to cases of psychiatric injury. In cases of apprehended psychiatric injury, unlike cases concerned with the amelioration of physical risks in the workplace, important values of human dignity, autonomy and privacy are involved in the formulation of a reasonable system of identification of psychiatric problems which may warrant an employer’s intervention and the making of a decision to intervene. An employee may not welcome an intrusion by a supervisor which suggests that the employee is manifesting signs of psychiatric problems to the extent that help should be sought, especially if those problems are having no adverse effect upon the employee’s performance of his or her duties at work.

Employees may well regard such an intrusion as an invasion of privacy. Employees may rightly regard such an intrusion as a gross impertinence by a fellow employee, even one who is in a supervisory position. If an employee is known to be at risk of psychiatric injury, prospects of promotion may be adversely affected and questions may arise as to the entitlement, or even obligation, of the employer to terminate the employment. Employees who are ambitious, and eager for promotion, and whose signs of dysfunction might equally be signs of frustrated ambition, might rightly be deeply resentful of suggestions which reflect an adverse assessment of the employee’s ability or performance and prospects of promotion. …

(See also QAS not negligent in management of paramedic’s PTSD (December 12, 2018)).

In Mr Crump’s case, he assured supervisors that he was getting medical help, but on this he lied even going so far as to forge a medical certificate from his treating psychiatrist (p. 96).

If ambulance services cannot compel people to seek treatment, and if for whatever reason people are unwilling to disclose their own impairments then all ambulance services (and other employers) can seek to do is identify through other means, such as drug audits and drug and alcohol testing where there is a problem. Where paramedics are discovered using drugs or are otherwise unfit for duty the only option may be to terminate their employment, but this too is likely to aggravate their illness.  One can only wonder whether, if Mr Crump had been managed and probably terminated, it would have saved his life by removing his access to drugs and encouraging him to seek professional help, or whether it would have encouraged him to take his life earlier?  On the other hand, if people are unwell and are being made unwell by their employment, some of which cannot be avoided – police, paramedics and firefighters must as part of their employment be exposed to traumatic events – then it may be in their best interests to leave that employment regardless of how much it defines them.

I don’t have a solution. Ambulance services must have regard to the well-being of all their staff, their patients and the community and that will at times require intervention into the lives of their staff and possible dismissal from employment. Those that look to coroners’ findings and prosecutions under Work Health and Safety laws to serve as a message to ambulance services to ‘do better’ may find that ‘doing better’ means more supervision, less trust and faster action to not only identify those struggling to cope but also to remove them from the front line, if not the service all together.

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

Categories: Researchers

Are St John Ambulance (Victoria) volunteers ‘good samaritans’?

Michael Eburn: Australian Emergency Law - 25 July, 2023 - 16:18

Today’s correspondent is

… a volunteer for St John Ambulance Victoria, and as part of this role I have been updating some training information. This has led me to you.

Currently our training packages suggest that as volunteers working in event health services, we are covered legally under the good Samaritan Act, I don’t agree, nor think this is particularly correct, as although we the volunteer are not receiving payment we receive other benefit, such as service awards. The organisation of St John receives a payment for service from the event management also.

St John Ambulance has insurance that covers its staff and volunteers, but what act would we fall under?

The ‘Good Samaritan’ provision in Victoria is the Wrongs Act 1958 (Vic) s 31B. It says:

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

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

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

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

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

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

Section 31B refers to ‘no money or other financial reward’ This is different to say the Civil Liability Act 2002 (NSW) s 56 that requires a good Samaritan to act ‘without expectation of payment or other reward’ (emphasis added).  I agree with my correspondent that a member of St John (NSW) or the NSW SES or RFS) may not be getting paid but they do get ‘other’ rewards for their service and should not be considered good Samaritans (see Who to treat? A question for St John first aiders (June 30, 2013) and NSW SES Good Samaritans (August 25, 2014)).  The position may be different in Victoria given the Act only refers to ‘money or other financial reward’.

In an published article (Michael Eburn, ‘Protecting volunteers?’ (2003) 18(4) Australian Journal of Emergency Management 7-11 at pp. 8-9) I said:

United States cases on Good Samaritan legislation have held that the legislation will not apply where there is a pre-existing duty to treat a patient. The argument goes that if the purpose of the Act is to encourage people to act when they might not otherwise act, then it need not and should not apply to persons who are under a legal obligation to act in those circumstances. A person who acts when under a legal duty to act is not a ‘Good Samaritan’ intended to be protected by this sort of legislation (Velazquez v Jiminez, 798 A.2d 51, 64 (NJ, 2000); …

A similar argument could be made with respect to volunteer members of rescue and first aid organisations. These organisations are established for the very purpose of providing emergency assistance and care and so, it could be argued, the members are not ‘Good Samaritans’ in the sense of a person who:

… comes, by chance, upon a victim who requires immediate emergency medical care, at a location compromised by lack of adequate facilities, equipment, expertise, sanitation and staff. (Velazquez v Jiminez, 798 A.2d 51, 65 (NJ, 2000)).

Notwithstanding this possible argument, the Premier of New South Wales said that the Good Samaritan provisions he was introducing ‘… will mean no liability for voluntary rescue organisations, such as surf life saving clubs, if a person is injured in the course of or in connection with a rescue’. By this speech, the Premier must have intended that members of such organization are to be considered ‘Good Samaritans’ even if the very purpose of their organization is to provide first aid or other emergency medical care.

If St John has entered into an agreement to provide health services, then it, and by extension its members, are duty bound to render assistance when asked to do so.  Given St John holds itself out as a leader in first aid, and provides people ranging from first aiders to medical practitioners with claimed expertise in the field, it would be perverse if it were held to a lower standard of care – that is a standard of ‘good faith’ rather than ‘reasonable care’ when it comes to the provision of the very service it claims to be expert in providing. If the reasoning in Velazquez v Jiminez were applied that would take them outside the good Samaritan legislation and I think that is the better analysis than that given by the then NSW Premier. 

In any event St John Ambulance is paid to provide event health services. Even if it sometimes provides health services without a fee, it receives donations because of its role as a first aider. Both generally, and in specific cases, St John receives money to provide first aid services so it is not a good Samaritan.  A person who needs assistance approaches the first aiders on duty not because they want assistance from that person, they want assistance from St John Ambulance. St John Ambulance provides that assistance through the volunteer who acts as the hands and eyes of St John.  If there is negligence it is St John Ambulance that was negligent in the way it, through its volunteer, rendered care.  Any injured patient could (and would be well advised to) sue St John Ambulance (Vic) and not any particular first aider.

If St John volunteers, whilst on duty, are not good Samaritans (or even if they are) they are further protected by the Wrongs Act 1958 (Vic) s 37. That section says

(1)        A volunteer is not liable in any civil proceeding for anything done, or not done, in good faith by him or her in providing a service in relation to community work organised by a community organisation.

(2)        Any liability resulting from an act or omission that would but for subsection (1) attach to the volunteer attaches instead to the community organisation.

Without tracing it in detail I think we can accept that St John is a community organisation (see s 34) and that being a volunteer is doing community work (s 36).  This also confirms that whilst the volunteer is not liable, the organisation for which they volunteer is.

St John volunteers who are not on duty but step forward to assist at a medical emergency or other accident would be protected by Victoria’s good Samaritan legislation. The legislation was originally written to reassure health practitioners that if they assisted at an emergency they would not be required to treat a person as if they had the resources and teams that they would have in a hospital (see Good Samaritan legislation – a comparison (February 22, 2017) and the discussion of the first Australian good Samaritan law, the Law Reform Act 1995 (Qld) which applies only to doctors and nurses, and the findings of the Ipp Review). Equally St John volunteers who may be used to being part of a larger team, equipped with oxygen, a defibrillator, pain relief drugs etc should not be worried that if they go to assist someone with nothing that somehow they will be held to the standard that could be expected from an equipped St John team. It is in exactly those circumstances that legislation such as the Wrongs Act 1958 (Vic) s 31B is meant to apply; not because anyone has been sued in those circumstances but because it was believed a fear of being sued may make people who could help reluctant to do so.

Conclusion

It is arguable that St John volunteers whilst on duty with event health services are protected by Victoria’s ‘Good Samaritan’ legislation, but I think that result would be perverse and not what the legislation was intended to cover. A better analysis is that they are protected by the volunteer protection provisions which says that although the volunteers are not liable, the organisation for which they volunteer – in this case St John Ambulance Australia (Victoria) – would be liable for any negligence.

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

Categories: Researchers

Using a communications device – Ambulance Victoria

Michael Eburn: Australian Emergency Law - 25 July, 2023 - 13:01

Today’s correspondent is a Victorian paramedic who has:

… been reading the updated Road Safety Road Rules 2017 (Vic) and I have been comparing version 18 (01/07/2022) with version 20 (05/04/2022), specifically rules relating to mobile phone usage.

Upon review I have found that rule 300 Use of mobile phones says:

(1) The driver of a motor vehicle must not use a mobile phone while the motor vehicle is moving, or is stationary but not parked, unless the driver holds a full driver licence and—

(d) the motor vehicle is an emergency vehicle, enforcement vehicle or a police vehicle.

However, in version 20, Rule 300 have been removed and appears to be have replaced with Rules 304A to 304Q. This rule goes into significantly more detail around the use of electronic devices in cars, including inbuilt displays, handheld device, and wearable devices. Under this new rule I am unable to identify any clauses granting emergency service workers the ability to use electronic devices in a way that we are required to as part of our operational duties.

The only part of the rule I can identify that would apply to emergency workers is rule 304H Operation of inbuilt devices, mounted devices and motor bike helmet devices in motor vehicles:

(1) Subject to subrules (2) to (5), a person in a motor vehicle must not operate an inbuilt device, a mounted device or a motor bike helmet device while the vehicle is moving, or is stationary but not parked.

(2) A fully licensed driver or a passenger in a motor vehicle may operate an inbuilt device, a mounted device or a motor bike helmet device in the motor vehicle while the vehicle is moving, or is stationary but not parked, if the operation of the device—

(a) does not involve the driver—

(i) entering information, text, numbers or symbols on the device, unless the operation is performed using voice controls only; or

(ii) scrolling on the device; and

(b) is for one or more of the following purposes—

(vi) to carry out a professional driving task;

A professional driving task is defined in Rule 304A as:

professional driving task means a task that supports a professional driver’s performance of work-related functions undertaken while driving, and includes the following in relation to the professional driver’s work—

(a) accepting or rejecting a job;

(b) information gathering;

(c) maintaining security;

(d) maintaining safety;

(e) facilitating passenger movement;

Based on my interpretation of these rules I would understand that the definitions for professional driving task (a) and maybe (b) would be most applicable to paramedics.

Noting that, I would say that if a vehicle has a fitted Mobile Data Terminal (MDT) then it would be okay for paramedics to touch the MDT for the purposes listed above under the “professional driving task” definition. In regional Victoria however, we don’t have MDTs and as such rely on Pagers or mobile phones (depending of service and reliability), neither of which are mounted within the vehicle to receive case details and use either in-vehicle or third party GPS navigation devices to respond to jobs – these devices have poor or limited voice control ability which requires us to manually key in addresses.

Whilst we often work in pairs the passenger of the vehicle would usually be able to program the navigation and read out case details for us, we are often working alone as single officers due to staff shortages or as part of a single responder model so we must read the case details ourselves and program our GPS ourselves. Obviously, the safest option would be to pull over to the side of the road, stop and then program those details in, then continue, though that isn’t practical at times due to the limited safe spaces to stop along rural roads which often have little to no shoulder and are often high speed roads.

My interpretation of the change in these rules are that unless we are operating under rule 306 responding with lights and/or sirens we must not touch our phones/pager to obtain case details and update the GPS unless we are stationary.

If I am correct, would the rules need to be amended in order to allow paramedics (and all other emergency service workers) to read their pager, and type in GPS location details while responding to non-lights and sirens cases?

Within the rules/act would there be any room for an emergency worker to contest any fines issued to an emergency worker for using an electronic device as part of their occupation due to that being the technology that is provided to them to complete their job? Noting that I don’t believe a physical police officer would issue a fine to emergency workers for completing tasks at work, however in VIC there are now automatic mobile phone/seatbelt cameras which would likely issue infringements for this.

My correspondent has made a good effort at interpreting the legislation but it reminds us that it’s always wise to look to the definitions. Section 304B defines what is meant by the word ‘device’.  It says, at 304B(2):

A “device” does not include— (b) an item in or on a police vehicle, an emergency vehicle, an enforcement vehicle or a sheriff’s vehicle.

An emergency vehicle includes ‘a vehicle operated by or on behalf of and under the control of— (i) an ambulance service created under section 23 of the Ambulance Services Act 1986 or listed in Schedule 1 to that Act’ (ie Ambulance Victoria) (Road Safety Road Rules 2017 (Vic), Dictionary).

My correspondent’s issues are solved because a pager, mobile phone or GPS device, whilst in an Ambulance Victoria ambulance,  is not a ‘device’ for the purposes of rules 304A to 304Q so the rule against using a device (r 304H) does not apply to the driver of an ambulance. That does not deny that it would be safer to pull over and stop, or have an offsider use the device, but it is not illegal to use it in the circumstances described in the question.

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

Categories: Researchers

Sexual harassment and work health and safety

Michael Eburn: Australian Emergency Law - 21 July, 2023 - 12:44

Today’s correspondent says:

Your recent comments regarding “Referring complaints of sexual misconduct to police or AHPRA (May 20, 2023)” were thorough, useful and provided great clarification.

With reference to your post “NSW Ambulance fined for breach of Work Health and Safety legislation (May 3, 2023)” are there responsibilities that have not been met if the sexual misconduct complaints were to have occurred in NSW? Would this be similar across all States?

What is the Work, Health and Safety responsibilities of any organisation to provide a work environment free of sexual touching and harassment and especially if historical complaints already exist showing a pattern of behaviour from an individual?

In NSW a recent survey of members of the Health Services Union may uncover many aspects of this problem in that State. The issue of sexual harassment in Ambulance Victoria is well documented with compensation to victims pending and an apology issued by the organisation.

For the situation (or hopefully the past situation) in Ambulance Victoria see Victorian Equal Opportunity and Human Rights Commission, Independent Review into Workplace Equality in Ambulance Victoria (2021) (VEOHRC Report). 

That report says (Vol 1, p. 235):

The Commission asked survey respondents who reported sexual harassment to identify the types of unwelcome sexual behaviour that they had experienced. Among the 330 respondents, the five most commonly reported behaviours were:

• sexually suggestive comments or jokes (83.3% or n=275)

• unwelcome touching, hugging, cornering or kissing (44.5% or n=147)

• intrusive questions about your private life or physical appearance  (38.8% or n=128)

• staring or leering (35.2% or n=116)

• inappropriate physical contact (27.3% or n=90)

Providing a workplace that is ‘free of sexual touching and harassment’ is required by both anti-discrimination legislation (in NSW, the Anti-Discrimination Act 1977 (NSW) Part 2A) and by work health and safety laws (in NSW, the Work Health and Safety Act 2011 (NSW)).

With respect to the Anti-Discrimination Act, an employee commits a criminal offence if he or she subjects another employee to sexual harassment (s 22B(2)).  By having a workplace that creates unfavourable conditions for an employee because of their sex, trans-gender status or marital status the employer may also be guilty of an offence (ss 25, 38C and 40 respectively). If a person is being harassed or being denied opportunities unless they ‘put up’ with unwelcome behaviour can be attributed to the employer would depend on the offender’s status. For example, if one paramedic makes unwelcome comments to another, that paramedic may commit an offence (s 22B(2)) but it may be a step too far to say the employer has harassed the employee. If, on the other hand, the person making inappropriate comments, or touching etc is a supervisor, and the employee ‘… felt I had to ignore [it] in order to ”fit in”, despite the fact that it didn’t sit well with me’ and felt ‘forced to put up with uncomfortable sexual innuendo in order to prevent my career being ruined …’ (VEOHRC Report, p. 237) then that behaviour could, arguably be attributed to the employer. In those circumstances the employee could argue that the employer, represented by the supervisor, is ‘denying the employee access, or limiting the employee’s access, to opportunities for promotion’ unless they put up with behaviour that a person of a different sex would not have to put up with (Anti-Discrimination Act 1977 (NSW) s 25(2)(b)).

The Work Health and Safety Act requires an person conducting a business or undertaking

… must 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.

A workplace with sexual harassment and the identified consequence of that behaviour (and see again VEOHRC Report) about why workplace equality matters (Vol 1, [3.1.1] and the potential impacts on individuals and the organisation ([5.2]) is not ensuring the health and safety of its staff.

But no organisation including NSWA turns a blind eye to these behaviours. I have been provided with an email from Craig McGlynn, A/Executive Director People & Culture, NSW Ambulance dated 11th July. He says:

I take this opportunity to remind you that NSW Ambulance has a comprehensive system in place for investigating an allegation of sexual harassment by a colleague or a member of the public, including:

Where there are policies and procedures in place but a supervisor continues to misbehave, particularly when it is the supervisor’s job to implement the policies then it is much harder to attribute that behaviour to the employer.

As for work health and safety the PCBU’s obligation is to take ‘reasonable’ measures to prevent the conduct. What is reasonable requires consideration of (Work Health and Safety Act 2011 (NSW) 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.

Minds may differ on whether any particular response meets the test of being ‘reasonable’ and ultimately that is what courts are there to decide, remembering that in any criminal prosecution the case must be proved ‘beyond reasonable doubt’

Conclusion

The question I was asked was

What is the Work, Health and Safety responsibilities of any organisation to provide a work environment free of sexual touching and harassment and especially if historical complaints already exist showing a pattern of behaviour from an individual?

The answer is the employer or PCBU has to ‘ensure, so far as is reasonably practicable’ a workplace free of sexual harassment. What is ‘reasonably practicable’ is open to debate.  Where ‘historical complaints already exist [suggesting or alleging]… a pattern of behaviour from an individual’ then that is relevant to considering s 18 ie its relevant to questions of the likelihood of the risk and what is known about the particular risk.  But what is reasonable also has to take into account duties to employees to investigate and provide procedural fairness to employees when investigating and acting on allegations of misbehaviour (s 18(d)).

Comment

I infer that the correspondent who wrote this question also posed the question that lead to the post Referring complaints of sexual misconduct to police or AHPRA (May 20, 2023). I infer that they believe an ambulance manager has been the subject of a number of complaints and they are concerned that person remains in their job. I remind readers that this is not the place for legal advice and I cannot comment on specific cases.  The legal principles are set out above, but what action is required would require detailed knowledge of the facts – what complaints have been made, what has been the response of the service, what has been the response of the individual, what is the attitude of the complainants etc.  There is no way I can know that and even if I did I would not seek to give advice to NSWA or any complainant on what they should do.  Nothing I write could be used to say to NSWA – “you have a legal obligation to sack or suspend this person”.  If anyone thinks there is a breach of the laws discussed in these posts they should take it up with their trade union, the Anti-Discrimination Board or WorkSafe NSW.

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

Categories: Researchers

Paramedic charged with a serious offence – Under what circumstances does one’s registration become suspended?

Michael Eburn: Australian Emergency Law - 20 July, 2023 - 14:46

Today’s correspondent brings a news story to my attention. The story reports on allegations that a person who is now an ACT paramedic sexually abused a young man back in the 1980s (when the offender was in his 30s and the victim ‘under 18’).  There is no suggestion in the story that the offending has anything to do with his paramedic practice or whether he was an ambulance officer at the time. After a first appearance, the defendant was released on bail subject to conditions that he does not have children at his home unless his wife or another adult is present. I don’t need to link to the story to answer to today’s question and I won’t, given these are just allegations.

The question is:

Under what circumstances does one’s registration become suspended? The aforementioned story noted bail restrictions prohibiting contact with children within a specific adult present. The Magistrate clearly has some concerns about public safety, wouldn’t AHPRA (or it’s delegate) move to suspend registration until such matters are dealt with, or at the very least add restrictions to practice?

The Health Practitioner Regulation National Law (ACT) is designed to protect people by ensuring only fit and proper persons are registered as health practitioners.  Unprofessional conduct by a health practitioner includes ‘the conviction of the practitioner for an offence under another Act, the nature of which may affect the practitioner’s suitability to continue to practise the profession’ (s 5).  This person has not been convicted. 

If he is convicted then one would imagine, in the normal course of events, the Paramedicine Board would consider the circumstances of the offending and whether that reflected on his ‘suitability to continue to practise the profession’.  If the Board thought it did, it could make a complaint of unsatisfactory professional conduct to be assessed by a ‘performance and professional standards panel’.  If the panel agreed, it could impose conditions on the person’s registration (s 191).

If the Board took the view the conduct amounted to ‘conduct of the practitioner, whether occurring in connection with the practice of the health practitioner’s profession or not, that is inconsistent with the practitioner being a fit and proper person to hold registration in the profession’ ie professional misconduct, then they could put the complaint before the ACT Civil and Administrative Tribunal (ACAT).  If ACAT agreed, it could suspend or cancel the practitioner’s registration (s 196).

Even before conviction the Board may take immediate action (s 156) if the Board:

… reasonably believes that—

(i) because of the registered health practitioner’s health, conduct or performance, the practitioner poses a serious risk to persons; and

(ii) it is necessary to take immediate action to protect public health or safety;

The Act gives the following example of when action may be taken in the public interest

A registered health practitioner is charged with a serious criminal offence, unrelated to the practitioner’s practice, for which immediate action is required to be taken to maintain public confidence in the provision of services by health practitioners.

The Board may well take the view that these allegations meet that test and take immediate action to suspend or place conditions on the person’s registration.

Of course, all that depends on the Board being aware of the allegations.  The employer is required to report an employee who has engaged in ‘notifiable conduct’ (s 142) that is (s 140):

(a) practising the practitioner’s profession while intoxicated by alcohol or drugs; or

(b) engaging in sexual misconduct in connection with the practice of the practitioner’s profession; or

(c) placing the public at risk of substantial harm in the practitioner’s practice of the profession because the practitioner has an impairment; or

(d) placing the public at risk of harm by practising the profession in a way that constitutes a significant departure from accepted professional standards.

Given there is no suggestion that this conduct was related to the practice of the profession it does not appear to fall within ‘notifiable conduct’.

A voluntary notification may be made where another practitioner or employer believes ‘that the practitioner is not, or may not be, a suitable person to hold registration in the health profession, including, for example, that the practitioner is not a fit and proper person to be registered in the profession’ (s 144(1)(c)).  Given the definition of unprofessional conduct and professional misconduct, above, other paramedics or the employer may well choose to make a voluntary notification to the Paramedicine Board.

A person’s criminal history includes ‘every charge made against the person for an offence, in a participating jurisdiction or elsewhere, and whether before or after the commencement of this Law’ (s 5).  It follows that whether convicted or not, this practitioner will have to reveal that he has been charged if and when he applies to renew his registration.

Or the Board may become aware of it simply be reading the news.

Conclusion

The suspension of someone’s registration is not automatic. Before conviction, it requires a decision by the Board taking into account the factors listed in s 156 of the Health Practitioner Regulation National Law.  After conviction it would require a complaint to be made to, and upheld by the appropriate Tribunal, in the ACT that is the ACT Civil and Administrative Tribunal (ACAT).

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

Categories: Researchers

Costs in the matter of Larter v Paramedicine Council (NSW)

Michael Eburn: Australian Emergency Law - 20 July, 2023 - 10:20

The matter of John Larter (Paramedic John Larter’s appeal to NCAT – you lose some, you win some (February 9, 2023)) returned to the Civil and Administrative Tribunal to determine the question of costs – Larter v Paramedicine Council of New South Wales (No 3) (Costs) [2023] NSWCATOD 105 (19 July 2023).

John Larter (Photo Credit: ABC News (Online) https://www.abc.net.au/news/2021-11-10/paramedic-john-larter-has-covid-vaccine-case-dismissed/100608970)

In NCAT Larter had sought orders to the effect that the decision to suspend his registration was improper. He hoped to have the suspension and any record of it removed. He was unsuccessful in that application.  By the time of the hearing his suspension had been lifted but there were conditions on his registration. He sought to have those conditions removed and on that application he was successful.

The normal rule is that the loser has to pay the winners legal costs.  But what happens when you ‘lose some’ and ‘win some’?  With respect to the appeal against the suspension, Larter was ordered to pay the Council’s costs in the normal way.  With respect to the appeal against the imposition of conditions, the Council was ordered to pay ½ of Larter’s costs.   This was because, even though he won the point, he raised many legal arguments that were (at [49](3)-(4)):

… described as having “no substance”; “no application to the present appeals”; “no basis”; and being “misconceived and lacking in substance”.

In fact, a number of those grounds could be said to be, using the language of Justice Leeming in Jan, as close to unarguable…

In fact (at [49](5)) the Tribunal determined that the grounds that did succeed were not clearly raised by Larter (or more accurately, his lawyers) but were identified by the Tribunal itself.  At [49](6) Senior Member Dixon said

In my view, had the Appellant’s case been confined to that issue, and not all the unsuccessful grounds, the hearing would have been considerably shortened and would have been dealt with much more cost-effectively.

Conclusion

The way Larter’s appeal was run unnecessarily extended the time and cost of the proceedings and this was ‘strongly against recovery of the full costs of the appeals’ hence the order that Larter was to recover only ½ of his eligible costs for only one part of the appeal.

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

Categories: Researchers

Duties owed to patients in ED

Michael Eburn: Australian Emergency Law - 17 July, 2023 - 10:58

Today’s question came as a comment on the post Transport to the closest hospital, or the one the patient wants to go to? (July 2, 2021) but it’s not really on the point of that post, so I thought I’d give it a separate answer.  The question is:

If you get a concussion and are taken to hospital then looked at then sent home with a fact sheet and the next day you have all the symptoms that is on the fact sheet so ring the hospital and tell them bad migraine and they call for an ambulance then they take you to hospital and they tell you to go and wait with the rest of the people in the emergency department is that right and let me walk out left to fend for myself with no care at all from the hospital staff

A hospital that operates an emergency department owes a duty of care to all who present at that department for treatment (see Barnett v Chelsea and Kensington Hospital Management Committee [1969] 1 QB 428; Darnley v Croydon Health Services NHS Trust [2018] UKSC 50 both discussed in Treating patients whilst ambulances are ramped (December 28, 2018) and see also the posts here https://australianemergencylaw.com/?s=barnett)

The duty is a duty to provide reasonable care but what is reasonable depends on all the circumstances including the number of staff on duty, the needs of other patients and the assessments made by the triage nurse to assign relative treatment priorities.  There is not, and has never been, a guarantee that arriving by ambulance will get someone into ED faster than arriving by car.  And one would have to be living in a news vacuum to be unaware of the pressures on hospital emergency departments.

Whether it was ‘reasonable’ to direct a patient to ‘go and wait with the rest of the people’ depends on all those circumstances – how did the patient present, what facilities were available, what were the needs of others seeking treatment? If the patient collapsed and died or suffered severe brain injury, success at litigation would depend on competing expert views trying to assess the ‘reasonableness’ of decision making at the time the decision was made and before the outcome was known.

A patient’s own assessment of their needs, and their demand to be seen does not impose a duty to see them ahead of other patient’s – see Patient’s demands do not create a duty to treat (April 11, 2020). A person cannot move ahead in the triage queue by insisting that they are a priority.

Where the patient has no adverse outcome, a patient may want to complain to the health service about what they perceive to be a lack of service, but there is no claim for compensation. A claim in negligence requires proof both of negligence and that the negligence caused damage. Where there is no damage, there is no cause of action.

As for the claim they ‘let me walk out left to fend for myself with no care at all from the hospital staff’ it has to be remembered that the hospital cannot stop a person from walking out (see No power to detain a patient just because it’s good for them (January 22, 2023)).  If a patient is planning to walk out before they can be seen by medical staff there may be a duty to try and warn them of the consequences of that action – see Advising patients who want to leave a hospital emergency department – UK and Australia (October 16, 2018) and in particular the discussion of the Australian case, Wang v Central Sydney Area Health Service [2000] NSWSC 515.  But again what could be done, and whether the level of observation was reasonable and would and could identify that the patient was leaving cannot be answered in the abstract.   In this particular case, the advice that should have been given may have been no more than to give the fact sheet the patient already had in which case a failure to give it again may not amount to a breach of duty.  And again if the patient suffered no adverse consequence there can be no legal cause of action.

Conclusion

It is well known that the public health system, and emergency departments in particular are under extreme stress.  My correspondent may not have received the level of care they expect or perhaps that health practitioners want to give but we cannot address that here.

Whether there was any legal error – a breach of a duty of care or a breach of professional standards – cannot be determined without many, many more facts.  I can say with a high degree of confidence that it is not axiomatically wrong to ask a patient that arrived by ambulance to wait in the general waiting area, that there may be delays in being seen and that a patient is allowed to leave at any time should they wish to do so.  It is not an issue that the hospital ‘lets’ a person leave, a hospital cannot stop a competent patient leaving if they want to.

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

Categories: Researchers

Paramedics as immunisation provider in NSW

Michael Eburn: Australian Emergency Law - 14 July, 2023 - 15:35

Today’s correspondent says:

I am currently a paramedic in NSW whose about to be employed by a Medical Centre, part of the duties discussed would be immunisations. I have searched and found no evidence that paramedics cannot immunise, however no information supporting NSW paramedic immunising. AHPRA states paramedics can if appropriately trained and have relevant authority. The authority for NSW does not mention paramedics. Legally can I practice under a GP in this setting, or do I need to seek authority from NSW? 

I have asked a similar question for paramedics in Queensland and Western Australia – see:

If the medical practitioner is prescribing the immunisation for the patient, then a paramedic can assist by giving the injection as anyone can assist a person to take medication that has been prescribed for them (Poisons and Therapeutic Goods Act 1966 (NSW) s 16(d1)).

A paramedic cannot give vaccinations without the patient obtaining a prescription from a doctor then the matter is more complex.  The Chief Health Officer has given authority to appropriately trained nurses and midwives who have completed appropriate programs of training – see Poisons and Therapeutic Goods Regulation 2008 – AUTHORITY Supply of poisons and restricted substances (28/10/2022).  There are also details on the authority of pharmacists – NSW Pharmacist Vaccination Standards (11/11/2022).

The pharmacist standard talks about ‘A registered pharmacist initiating and administering a vaccine under his/her own authority…’.  The relevant authority is the key issue. Where for example there is an immunisation clinic where people attend, are examined and immunised, then the person making the decision to administer the vaccine, and responsible for the vaccinations safe storage must be a medical practitioner or an authorised nurse, midwife or pharmacist. 

If the person comes to a medical practice, sees the doctor who confirms that a vaccination is in order, and where it is the doctor who is in possession of the immunisations and responsible for their storage etc then it is the doctor’s authority that is relevant. If the doctor asks the practice nurse or the practice paramedic, to administer the medication that the doctor has prescribed then it is the doctor who is ‘immunising’ the patient even if the practice paramedic provides the hands that actually administer the injection.  The employing medical practitioner and the paramedic would however both need to be satisfied that the paramedic had sufficient training to know what needs to be known to safely administer the immunisations.

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

Categories: Researchers

Arranging a shift swap for training

Michael Eburn: Australian Emergency Law - 14 July, 2023 - 15:03

Today’s question is an industrial law issue but it’s relevant to emergency law given the organisation – NSW Ambulance – and the nature of training – rescue.  My correspondent says:

Ambulance has mandated compulsory training that rescue Officers must attend a minimum of 6 training days per year or you will lose your accreditation as a rescue Officer.

There is a current work instruction stating that Officers must organise their shift swaps to attend this mandated compulsory training or get approval from management to attend on overtime.

My question is that if this compulsory training has been mandated by the Ambulance Service then is it their responsibility to get me to training? It is difficult to arrange swaps as you have to rely on others and work around or sacrifice your family life. All attempts to attend on overtime are outright refused even though it is available under the work instruction.

What are my employer’s responsibilities, and can they force you to arrange swaps to attend mandatory training given that swaps are very hit-and-miss?

The experts on industrial law are the trade union industrial officers.  As this question required specialist knowledge, I took the unusual step of asking someone else – in this case Bree Jacobs, Industrial Officer at the Australian Paramedics Association – one of the sponsors of this blog.  Her answer is:

Advice from the APA

The question asked at the core is really an industrial question surrounding the foundation of the employment relationship.

Can NSW Ambulance require me to change my shifts to attend training?

The employer-employee relationship is underpinned by various obligations, rights and duties which come from various sources including employment contracts, polices, procedures, legislation and case law. One particular duty that many Paramedics would be familiar with is the duty to comply with a lawful and reasonable direction. It would seem that the basis on which NSW Ambulance has requested that staff organise ‘shift swaps’ to attend Rescue Training is through such a direction.

Is asking me to organise a shift swap a lawful and reasonable direction?

The foundation of the employment relationship is one in which an employee presents for work at an agreed upon time, performs agreed upon work and in return is remunerated. I have considered this question in the context of the requirement to swap a shift as being a change to rostered hours. As Paramedics work 24 hours a day, 7 days a week not normal business hours, their hours and roster patterns are outlined in the Paramedics and Control Centre Officers (State) Award 2022.

There are two circumstances in which a posted roster may be changed. I will address each individually below.

Exceptional Circumstances

Paramedics hours of work are dictated by a roster which is ‘posted’ at some time in advance of (but no less than 7 days prior to) the start of the roster period. A ‘posted’ roster may only be changed where there are exceptional circumstances AND at least 7 days’ notice is provided to the affected staff (Paramedics and Control Centre Officers (State) Award 2022 cl 22(a) and (b)).

The NSW Ambulance Specialist Training Work Instruction (WI2022-006) which deals with Rescue Training states that:

”The SOU will disseminate an annual training activity calendar no later than 30 November the year prior to ensure planning time. The training calendar will be constructed to offer repeated learning outcomes to enable flexibility.”

If it is the case that a training calendar is published in this way, it is hard to see what exceptional circumstances would exist that would warrant changing of a roster.

Irrespective of the above, it does appear to be the case that it is not the employer that is changing the individual’s roster but rather that they are making a request of the individual to change their own roster.

Mutual Agreement

The only other circumstance where a roster may be changed is by mutual agreement between the parties ((Paramedics and Control Centre Officers (State) Award 2022 cl 22(f)).

Now I am assuming that the person who asked the question is not agreeable to organising a shift swap to undertake the training but is rather being told that that they are required to do so. The factual circumstances here seem to indicate that NSW Ambulance is relying on mutual agreement on the basis that if the individuals do not agree to the change then they will not be able to complete the ‘mandatory’ training.   

Summary

Both employers and employees are required to comply with the provisions of Awards. As such, it would be difficult to see how a direction to arrange one’s own shift swap would be a lawful and reasonable direction.

Is NSW Ambulance required to facilitate my attendance at mandatory training?

I will answer this question using a different example.

Section 5 of the Award has this to say about Paramedic: 

(iii)    Paramedic means an employee who has successfully completed the necessary and relevant training and work experience as determined by the Service to become a Paramedic and who is appointed to an approved Paramedic position. Provided that such an employee shall be required to undertake and successfully complete further instruction/in-service courses necessary for the maintenance of their clinical certificate to practice and the reissue of their clinical certificate to practice every three years.

In the above clause, Ambulance requires Paramedics to undertake certain clinical training (typically referred to as MCPD) at least every three years. In such cases the employer should (and does) facilitate this in accordance with the rostering provisions. To require attendance on rostered days off is unlikely to be a lawful and reasonable direction and would create an entitlement to overtime.  

Is rescue training mandatory?

The question posed to me leads us to an additional question that must be considered. That is, whether the training referred to as ‘rescue training’ is mandatory training.

To answer this, we need to consider the regulatory framework.

The State Rescue Board of NSW

The State Rescue Board of NSW was established by the State Emergency and Rescue Management Act 1989 (NSW) (and I am assuming the questioner is a member of a rescue unit accredited by the State Rescue Board of NSW). 

According to the State Rescue Board, NSW Ambulance has six accredited Rescue Units, namely:

  1. Bomaderry (General Land Rescue, Vertical Rescue and In Water Flood Rescue)
  2. Cowra (General Land Rescue and In Water Flood Rescue)
  3. Rutherford (General Land Rescue, In Water Flood Rescue and Vertical Rescue (pre-accreditation))
  4. Singleton (General Land Rescue and In Water Flood Rescue)
  5. Tamworth (General Land Rescue, Vertical Rescue and In Water Flood Rescue)
  6. Wagga Wagga (General Land Rescue, Vertical Rescue and In Water Flood Rescue)

A list of accredited rescue units may be found on the NSW Government website here: https://www.nsw.gov.au/emergency/rescue-and-emergency-management/state-rescue-policy

Obligations in relation to rescue for agencies, units and operators

The State Rescue Board Policy says:

7.02         It is the responsibility of each agency which provides accredited rescue units, to ensure that their rescue operators are trained in accordance with the SRB Policy and their skills are kept current.

As you can see an obligation is placed on the agency (in this case NSW Ambulance) to ensure that their rescue operators are trained in line with the stipulated policies and procedures.

There are no guidelines in the policy that stipulate minimum number of annual training days, types of training, currency or frequency requirements. This is left up to the agency (NSW Ambulance in this case) to determine in accordance with the relevant policies, legislative obligations and standards.   

What the NSW Ambulance Policies and Procedures say

The Award is silent on the types, frequency and requirements surrounding rescue training so I will move onto consideration of the NSW Ambulance policies and procedures as they relate to rescue training.

I am not aware of the Work Instruction that the questioner references that states that shift swaps need to be used to facilitate attendance at training. There were older iterations of the Work Instruction that include similar provisions around TOIL and shift swaps that were the subject of an industrial dispute brought on by APA (NSW). Those iterations were subsequently amended. The most recent work instruction relating to specialist training for NSW Ambulance that we have sighted is the WI2022-006 Land Based Specialist Training.

I have taken relevant excerpts from the WI and reproduced below:

“Authorised training programs are provided to operational staff to maintain required proficiency levels, that complement recertification and competency based assessments.”

AND

“Specialist paramedics are required to assess and plan their individual training needs in order to maintain baseline proficiencies (typically this involves attendance at no less than 6 training days per calendar year). Attendance requirements should be established with their line manager as early as possible. Wherever possible the PDP process should be used to plan the years training. Short notice release for training (within 7 days) will generally not be supported.“

The WI further states:

“Wherever possible training should be done on shift in early consultation with line management. This is to allow adjustments to rosters for back filling using normal rostering processes such as the use of casuals and part time paramedics.”

AND

“It is acknowledged that at times, it is not always possible for rosters to be adjusted and operational deployments will remain the priority. Should this result in requiring staff to carry out training when not on shift, they are entitled to be paid overtime. Requirement for staff to carry out training when not on shift will only be supported with prior approval of the relevant Associate Director of Clinical Operations in conjunction with the Manager, Special Operations Unit.“

You will note from the above that the Work Instruction states that the preference of NSW Ambulance is that Paramedics complete specialist training on their rostered days on.

The complexity for rescue operators is the requirement to maintain 24/7 coverage to the communities they serve. This means it may not be feasible to be released from rescue rosters to complete training and still maintain coverage to the community. In these circumstances the work instruction states that staff are entitled to be paid overtime when required to undertake training on rostered days off. This is consistent with the Award.

NSW Ambulance is the agency responsible for ensuring adequate training for rescue operators that is also consistent with the Rescue Board’s requirements. Now, the difficulty with the question of whether training is ‘mandatory’ is perhaps the construction of the sentence: “typically this involves attendance at no less than 6 training days per calendar year”.  It may be clear to rescue operators their requirements around training each year, but I have not sighted any document that clarifies the exact nature of training requirements – types, duration etc. The construction of the sentence does not in of itself dictate a specific number of mandatory training sessions. The requirement for an individual on my reading could be more, or less than six days. Whether or not this is sufficient and compliant with the requirements is a question I will leave to the experts. 

Irrespective of this, there seems to be no contention that there is some amount of training that must be done each year to maintain currency. There is no question that this specific training is mandatory. As stated in the Mandatory Requirements section of the Specialist Operator Scope of Operations, Training, Currency and Authorisation Policy Directive:

Operators must:

“Be trained, current and authorised by NSW Ambulance to practice the suite of specialist skills for which they have been deployed to undertake (i.e. their authorised scope of operations)”

AND

“In the event a specialist operator has not maintained the relevant clinical certification, together with the training, currency and authorisation for their specialist operator role, they cannot continue to operate in that role.”

The Directive goes on to state:

“Failure to meet relevant training, currency and authorisation requirements will be managed according to NSW Ambulance Managing For Improved Performance and/or Behaviour Policy/Procedures (PD2017-024), Managing for Improved Performance and/or Behaviours (PRO2017-028).”

AND

“Compliance is a shared responsibility between NSW Ambulance and individual staff. It is the responsibility of each individual to ensure they comply with the standard required to maintain qualifications and currency for the role(s) in which they are employed.”

This Policy reinforces the regulatory framework which states that the Agency is responsible for ensuring the requirements are met for Rescue Units with obligations placed on rescue operators to also maintain their skills to the requisite standard. If compliance with such requirements is a shared responsibility (which the Directive states it is) then it stands to reason that NSW Ambulance, or its managers have a responsibility to facilitate attendance at training and not simply put the onus on operators to organise attendance at such days. It is also difficult to understand how (or why) operators would be managed through a performance management process when they stand ready and willing to undertake training, according to the questioner, it is the Agency that will not facilitate this.  

Conclusion

That is indeed a long answer so to draw out what I think are the conclusions:

  1. A direction that paramedics must arrange their own shift swap is not a lawful or reasonable direction.
  2. The obligation is upon ASNSW to facilitate training either on rostered days on or, if that is not possible, on rostered days off with the employees entitled to be paid at overtime rates.

It is all very well to have those conclusions, but it may be of little help if service managers insist on directing paramedics to arrange their own shift swap. In that case paramedics would be advised to consult their union (which in NSW may be the APA or the Health Services Union) for assistance and, if necessary escalating, the matter as an industrial dispute to be settled in accordance with industrial law.

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

Categories: Researchers

Practice subject to conditions and prohibitions

Today’s correspondent has:

… thought about the following scenario which may be an interesting question for the blog:

A registered health professional has conditions imposed on their registration which prevent the provision of clinical care, or a registered health professional who transitions to non-practising registration wants to engage in work as a first aider or event medic for a private organisation who provides healthcare services to the public. This organisation credentials both first aiders and health professionals as part of their clinical team.

Is an individual who engages in such practise as a first aider in breach of their registration conditions or non-practising registration?

What about the scenario where either of the above individuals assists as a good Samaritan to a member of the public and provides first aid care, aided by their knowledge? I am especially thinking about where the individual might be already registered to an app like GoodSAM.

The AHPRA Code of Conduct which applies to most of the registered health professionals, including paramedics, defines practice as:

… any role, whether remunerated or not, in which the individual uses their skills and knowledge as a practitioner in their regulated health profession. For the purposes of this code, practice is not restricted to the provision of direct clinical care. It also includes using professional knowledge in a direct non-clinical relationship with patients, working in management, administration, education, research, advisory, regulatory or policy development roles and any other roles that have an impact on safe, effective delivery of health services in the health profession.

There are 15 registered health professions. Not all health professionals would be using their professional knowledge if working as a first aider or event medic – eg optometrists, podiatrists, Chinese medicine practitioners etc.  This question will be of most relevance to medical practitioners, nurses and paramedics.  I’ll limit my discussion to paramedics.

A paramedic who is working as a first aider or event medic cannot, seriously, avoid using the skills and knowledge they have acquired on the road to registration.  It would seem therefore that they would be practising their profession.

The Health Practitioner Regulation National Law primarily works through protection of title rather than restriction of practice. Prima facie then one might think a paramedic with non-practising registration could work as a first aider/event medic without using the title ‘paramedic’.  Section 75 of the Health Practitioner Regulation National Law (Qld) (the model adopted by the other states) says, however:

(1) A registered health practitioner who holds non-practising registration in a health profession must not practise the profession.

(2) A contravention of subsection (1) by a registered health practitioner does not constitute an offence but may constitute behaviour for which health, conduct or performance action may be taken.

It is not a criminal offence, but the practitioner could be subject to professional discipline.

As for a paramedic who has had conditions imposed on his or her practice it depends on what those conditions are.  In the recent case, discussed in the post Paramedic deregistered for sexual abuse of patients (July 3, 2023), the Tribunal made orders prohibiting the paramedic from any health practice specifically because he ‘was able to be employed as a first responder/medic team leader with Safety Australia Group without being a registered paramedic. Without a prohibition order, there may be nothing stopping him from applying for jobs that do not require registration as a paramedic.’  The order was made under s 149C(5) of the NSW Act and prohibited him from providing any form of health service including ambulance services which are, in turn, defined to mean ‘services relating to the work of rendering first aid to, and the transport of, sick and injured persons’ (Health Services Act 1997 (NSW) Dictionary).

Where a person is subject a prohibition order, failure to comply with the terms of that order is a criminal offence (Health Practitioner Regulation National Law (Qld) s 196A).  If the person’s registration is subject to conditions, failure to comply with the conditions is not a criminal offence but may be subject to disciplinary proceedings.

As for first aid care, I have argued elsewhere that a person who come across a scene where first aid is required should not be considered as practicing their profession such as to require Professional Indemnity Insurance nor, it would follow, with respect to any restriction on their practice.  Whatever has led to restrictions on their practice does not mean that they may not be able to help where life or death depends on it – see Eburn M. Registered paramedics, insurance and first aid – looking for coherence in law. Australasian Journal of Paramedicine [Internet]. 2019 Feb. 4 [cited 2023 Jul. 4]; 160. Available from: https://ajp.paramedics.org/index.php/ajp/article/view/663.  I would hope therefore that it would not be considered a breach of either conditions or a prohibition order if a person stepped up to render assistance at an accident that they came across by chance and where their actions could relieve suffering or save a life.

I think it would be different if they have gone so far as to register with the GoodSAM app as then they are holding themselves out as being available to render care so I shall return to that situation, below.  In that case whether they are in breach of the terms of any condition or prohibition order would depend on the terms of those orders.  I think a person with non-practising registration could argue that they are not practicing their profession if they simply respond to provide CPR but as noted in my article cited above, that does not appear to be the view of the Paramedicine Board.

Conclusion

I think a paramedic who is working ‘as a first aider or event medic for a private organisation’ cannot help but use ‘their skills and knowledge as a [paramedic] practitioner’ regardless of the organisations scope of practice. I would think therefore that even if they are not using the title ‘paramedic’ they are practising the profession of paramedicine. 

Whether that is a breach of any conditions on their registration, or a prohibition order would depend on the terms of those conditions or registration.  A paramedic who holds non-practising registration or is in breach of conditions of their registration may be disciplined for such conduct. A person who is acting in breach of a prohibition order commits a criminal offence.  I would think it would be intended that someone subject to a prohibition order is also not being held out as a fit and proper person to respond to an emergency call via the GoodSAM app. I would suggest that a court would consider signing up for that app would be a breach of a prohibition order and would also be a breach of relevant conditions of registration.

A person who is eligible for registration, but is not registered, can do what they like provided they don’t use the title ‘paramedic’.

I don’t think a person who comes across a scene requiring assistance should be considered to be practising the profession if they render first aid but that is a debatable point.

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

Categories: Researchers

Revisiting emergency warning lights in NSW

Today’s correspondent is from an private EMS provider. They are:

… sorting out lights for our new Ambulances. Are there any issues with a red/amber combination. I would use red and white but apparently pulsating white lights at night is prohibited. Red is great for daytime use. We can’t use blue or white. So the only options we have are.

1. Solid red.

2. Red/amber combination.

The Light Vehicle Standards, adopted as Schedule 2 to the Road Transport (Vehicle Registration) Regulation 2017 (NSW) define an emergency vehicle as ‘a vehicle driven by a person who is—‘ a member of the Ambulance Service rendering or providing transport for sick or injured persons’.

I have argued before that I think reference to ‘the Ambulance Service’ rather than ‘an ambulance service’ means the Ambulance Service of NSW established by the Health Services Act 1997 (NSW).

Rule 114 of the Light Vehicle Standards says:

(1) A vehicle may be fitted with any light or reflector not mentioned in these rules.

(2) However, unless subrule (3) or (4) applies, a vehicle must not display or be fitted with–

(a) a light that flashes or rotates, or

(b) a light or reflector that–

(i) shows a red light to the front, or

(ii) shows a white light to the rear, or

(iii) is shaped or located in a way that reduces the effectiveness of a light or reflector that is required to be fitted to the vehicle under these rules, or

(iv) shows a blue light.

(3) Despite rule 15 and any requirement of a third edition ADR, an emergency vehicle or police vehicle may be fitted with any light or reflector.

(4) Despite rule 15 and any requirement of a third edition ADR, the following vehicles may be fitted with a light or lights, at least one of which must be mounted on top of the vehicle, capable of displaying a flashing or rotating light–

(a) ambulances,

(b) police vehicles,

(c) fire fighting vehicles,

(d) mines rescue or other rescue vehicles,

(e) Red Cross vehicles used for conveyance of blood for urgent transfusions,

(f) public utility service vehicles,

(g) tow-trucks,

(h) motor breakdown service vehicles,

(i) vehicles used for the delivery of milk that are required to stop at frequent intervals,

(j) buses used solely or principally for the conveyance of children to or from school,

(k) vehicles exceeding the length, width and height limits of these rules,

(l) vehicles frequently used to transport loads that exceed the maximum length, width and height limits of these rules,

(m) vehicles used to escort vehicles referred to in paragraph (k) or (l),

(n) vehicles used by Transport for NSW,

(na) vehicles used by the National Heavy Vehicle Regulator,

(o) vehicles used by an employee of a council of a local government area for the purposes of enforcing excess weight limits legislation,

(p) State Emergency Service vehicles,

(q) any other vehicles that are approved by Transport for NSW.…

(7) A light that may be fitted under subrule (4) must be capable of displaying–

(a) in the case of … an ambulance, –a blue or red light, or

(b) in the case of a Red Cross vehicle, a mines rescue or other rescue vehicle or an emergency vehicle within the meaning of the Road Rules 2014 (other than a vehicle referred to in paragraph (a))–a red light, or…

(e) in the case of any other vehicle–a yellow light unless otherwise approved by Transport for NSW

In short:

  1. The vehicle cannot have flashing lights unless it meets one of the exemption criteria;
  2. Is it an ambulance? See What’s an ambulance? (May 28, 2017).  If it is an ambulance it can have red/blue flashing lights.
  3. If it’s not an ‘ambulance’ is it an ‘emergency vehicle within the meaning of the Road Rules 2014 (other than a vehicle referred to in paragraph (a))’?  An emergency vehicle is, relevantly, a vehicle driven by ‘a member of the Ambulance Service …’, emphasis added and again noting it says ‘the Ambulance Service’ not ‘an ambulance service’.  A private EMS service is not ‘the Ambulance Service’ so my correspondent’s vehicle does not fall in that definition of an ‘emergency vehicle’. It can be an emergency vehicle if Transport for NSW has approved the members as ‘emergency workers’.  If that has happened, the vehicle can have red flashing lights (cl 114(4)(q) and 114(7)(b)). 
  4. I cannot see how the vehicle operated by a private EMS service would be classed as any of the other vehicle types listed in r 114(4)(a) to (q) so the cannot have a yellow flashing light either.
Conclusion

If the vehicle is registered as an ambulance, it can have red/blue flashing lights.  If it is not, specific approval would be required from Transport NSW to fit either a red or yellow (amber) flashing light to a vehicle that is operated by a private EMS provider.

For related posts see:

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

Categories: Researchers

Paramedic deregistered for sexual abuse of patients

When writing my report on NSW RFS firefighter imprisoned for multiple child sexual offences (July 1, 2023) I said that ‘The point of reporting is to distil some lessons for emergency workers or the emergency services not merely to report for its own sake particularly where the particular facts are egregious and may be triggering.’

Health Care Complaints Commission v Thistlethwaite [2023] NSWCATOD 95 is another disturbing case that again needs to be reported. As The Civil and Administrative Tribunal says (at [113]):

The public is entitled to know whether a practitioner has been the subject of disciplinary findings and orders. Other members of the profession have an interest in knowing whether a colleague has been disciplined, and why. Decisions also provide a marker of what is unacceptable to other members of the profession.

The issue before the Civil and Administrative Tribunal was the status of Mr Thistlewaite’s registration. The Health Care Complaints Commission made two complaints. The first was that the practitioner had been committed of a criminal offence (Health Practitioner Regulation National Law s 144). The second was that he had been guilty of unsatisfactory professional conduct Health Practitioner Regulation National Law s 139B(1)(1) when he engaged in ‘inappropriate conduct of a sexual nature towards his colleague’ ([22]).

Complaint 1

Mr Thistlethwaite

… was employed by Safety Australia Group as a paramedic supplied to NSW Trains for the provision of paramedic services at NSW railway stations’…

Commencing in July 2019, a number of young women came forward and made allegations of inappropriate touching by Mr Thistlethwaite that they stated occurred when they were examined by him following episodes of feeling unwell while travelling on a train or at a railway station.

His last victim, patient H, was a nurse who identified that Mr Thistlewaite’s examination of her was not clinically indicated. She immediately reported the matter to her mother and then ‘to the first police officer she came across when arriving at Central Railway Station from Redfern’ [60]).

Mr Thistlewaite was subsequently convicted of 16 offences against 8 women.  When sentencing the offender, King DCJ said ([60]):

… The offender sexually touched each of the victims under the guise of legitimate medical treatment. His offending was sophisticated, well disguised and calculated…

The offending escalated over time. He commenced with touching of the breast area for the first victims. Then moving to the touching of the mons pubis area for [Patient D] and [Patient F]. It then culminated with his hands inside the underwear of [Patient G] and the full exposing of the genital area of [Patient H]. He lowered the pants of [Patient F] and [Patient H] without warning…

For several victims the offender rang their private telephone number, or sent unsolicited and unnecessary messages, sometimes of a sexual nature…

The offending can reasonably be described as both serial and predatory sexual offending. …”

He was sentenced to imprisonment for 3 years and 6 months with a non-parole period of two years ([9]). 

The issue for the Tribunal (at [59]) was whether ‘the circumstances of the offences for which Mr Thistlethwaite has been convicted render him unfit in the public interest to practise his profession.’  Not surprisingly the Tribunal found that Mr Thistlewaite was unfit to remain a paramedic. The Tribunal said ([80]-[85]):

… public interest contemplates both the direct risk to patients and the indirect risk to the public through damage to their trust in the profession. When health professionals are convicted of serious criminal offences and that criminal conduct occurs whilst performing their professional role and responsibilities, the public’s ability to entrust their care to those health professionals is eroded if the practitioner continues to practise.

The serious nature of the offences and the length of time over which they occurred, may cause most reasonable members of the public to fear placing themselves, or their loved ones, in the care of a convicted practitioner lacking rehabilitation and insight…

Mr Thistlethwaite’s offences were serious, warranting sentences of imprisonment. The offences were not isolated and committed over the course of six months with victims ages ranging from 17-27 years. It was serial and predatory sexual conduct.

Several factors emerge from the circumstances of the offences which demonstrate that Mr Thistlethwaite is unfit in the public interest to practise. They are as follows:

  1. The conduct of physical examinations or treatment on eight women in small, isolated rooms at train stations without a genuine medical or clinical purpose for the examination or treatment.
  2. The nature and extent of the inappropriate sexual touching which escalated over time becoming more brazen, commencing by touching breast areas to touching mon pubis for Patients D and F, to hands inside the underwear of Patient G, and fully exposing Patient H’s genitals.
  3. The absence of any informed patient consent.
  4. The conduct was a departure from paramedic education, training, and practice in that there were unnecessary repeated examinations of the breast, abdomen or pubic area after time intervals, the unnecessary removal or interference with the clothing of the patient, and Mr Thistlethwaite being seated whilst the victims were standing, leaving victims feeling uncomfortable.
  5. The ability to commit the offences because of his position as a paramedic.
  6. The offences were difficult to detect because the victims were vulnerable and had no medical training except for Patient H who made a complaint to the police, which brought an end to the offending.
  7. Mr Thistlethwaite’s attitude towards the offending and his ongoing reluctance to admit the offences demonstrates a lack of responsibility and no remorse. His only admission is that he may have acted unprofessionally asking “a few girls out for coffee” but that was “only ever done after treatment and with good intent”.
  8. Mr Thistlethwaite showed no remorse for his criminal conduct or contrition for the impact upon the victims of his crimes. His expressions of regret were focused on what he saw as his loss. Mr Thistlethwaite’s total lack of insight and absence of remorse demonstrates that his prospects of remediation are poor.

Mr Thistlethwaite’s conduct adversely impacted his profession, and his conduct is incompatible with the personal qualities essential for the practice of paramedicine. It brings the profession into disrepute.

Given the matters referred to above, we are satisfied that the circumstances of the offences of which Mr Thistlethwaite has been convicted render him unfit in the public interest to practise paramedicine.

Although not referred to in this case, I am also reminded of the decision in HCCC v Litchfield [1997] NSWCA 264 (cited in Health Care Complaints Commission v McAlpine [2022] NSWCATOD 92 and discussed in the post Paramedic suspended for sexual misconduct directed to a patient (August 22, 2022)). In Litchfield Gleeson CJ, Meagher and Handley JJA said:

Female patients entrust themselves to doctors [and paramedics], male and female, for medical examinations and treatment which may require intimate physical contact which they would not otherwise accept from the doctor [or paramedic]. The standards of the profession oblige doctors [and paramedics] to use the opportunities afforded them for such contact for proper therapeutic purposes and not otherwise. This is the standard that the public in general and female patients in particular expect from their doctors [and paramedics], and which right thinking members of the profession observe, and expect their colleagues to observe.

Mr Thistlewaite took advantage of his position as a paramedic, and the trust that people place in paramedics to abuse those who had come to him for care. As King DCJ said (at [60]):

The offender used medical terminology to establish superiority and authority over the victims and boasted of his professional status to gain their trust, giving him increased opportunity to commit the offences. Each of the victims was feeling unwell and therefore vulnerable. The offender exploited their vulnerability to sexually touch them in circumstances where they were unable to protect themselves and powerless to challenge his treatment. Those who did question the treatment such as [Patient E] and [Patient F], were rebuffed with medical jargon and bogus medical explanations for the touching of their bodies.

Complaint 2

Mr Thistlewaites’ colleague, A, commenced work with Safety Australia Group on 26 March 2019 and left on 29 April after working only two shifts, both with Mr Thistlewaite.

The allegations were:

On 27 March 2019, Mr Thistlethwaite engaged in inappropriate conduct of a sexual nature towards his colleague, Person A, in that he:

  1. said words to the effect of “I like the way they look” when referring to Person A’s black jeans;
  2. said words to the effect of “it will be dangerous to work with you because you are cute”;
  3. showed a photo of his tattoo to Person A which covered his back and buttocks;
  4. said words to the effect of “FYI the contracts don’t state that we can’t have relationships with colleagues and seeing that we’re both single we can message and see what happens”; and
  5. called Person A at approximately 10:15am and said words to the effect of “now you have my number too” before sending two text messages on WhatsApp to Person A.

On 28 March 2019, Mr Thistlethwaite engaged in inappropriate conduct of a sexual nature towards his colleague, Person A, in that he:

  1. at approximately 9:45am said words to the effect of “that’s a shame, I was going to ask you to have lunch with me”;
  2. said words to the effect of “you can nap at my place” and “I promise I won’t watch you when you’re asleep” and “oh, you want me to watch you”; and
  3. sent a text message on WhatsApp to Person A which stated, “Now I could make some crude joke about you having the afternoon off because your pussy needs some attention … but I won’t do that.”

Mr Thistlewaite’s conduct was said to be contrary to ‘clauses 1.2 and 4.2 of the Paramedicine Board of Australia ‘Code of Conduct for Paramedics’ effective June 2018.’  Those clauses dealt with ‘1.2 Professional values and qualities’ and ‘4.2 Respect for colleagues and other practitioners’.

At [37] the Tribunal said:

We have no difficulty in finding Mr Thistlethwaite’s conduct towards Person A to be both unethical and improper. It was persistent, unwelcome, inappropriately personal, and sexually suggestive. It commenced within the first hour on the first day of Person A starting her job as a paramedic. It did not reflect the standards expected of paramedics under the Code. In our view, for Person A to be confronted by something so unwelcome and disempowering at work was an improper violation of the professional respect and courtesy she was entitled to expect from a colleague.

Outcome

The Tribunal ordered that Mr Thistlewaite’s registration as a paramedic was cancelled for a period of not less than 5 years.  That does not mean he will be reinstated in 5 years; it means he can reapply in that time. If he does reapply he will have to show the Board that by virtue of his post-offence behaviour and training he is no longer a risk to the public.

Mr Thistlweaite was ordered to pay the costs of the Health Care Complaints Commission.

He was also prohibited from providing any health care for 5 years.  The Tribunal said that if they would make the order to ensure ‘the protective purpose of the cancellation of Mr Thistlethwaite’s registration is not significantly undermined.’ They said (at [100])

We accept the submission of the Commission that Mr Thistlethwaite was able to be employed as a first responder/medic team leader with Safety Australia Group without being a registered paramedic. Without a prohibition order, there may be nothing stopping him from applying for jobs that do not require registration as a paramedic.

Finally, Mr Thistlewaite had sought an order prohibiting the publication of his name. This was warranted he said because of

… potential media scrutiny [and perhaps being reported on this blog] and the negative impact on himself and his family members. He claimed to have been affected by the events of the last few years and had been diagnosed with PTSD, severe depression, and anxiety. He said further media attention identifying him whilst in prison would be a danger to his personal safety. He maintained that he was not guilty of any crime. He claimed that his parents were undergoing therapy for PTSD related to the criminal proceedings and the publication of his details could have a further negative impact on them.

Australian justice is open justice. The starting point is that anyone can sit in court, and anyone can report matters heard in court. Courts can impose non-publication orders, but they are the exception, not the rule. The court declined to make the non-publication order (and see [113] quoted at the start of this post).

Conclusion

It appears that Mr Thistlwaite continues to deny any wrongdoing (see [68]-[69]) and his biggest concern appears to be the effect of the proceedings on him and his family, rather than any concern for the nine women involved ([70]-[71]).

Despite this he was convicted which means the court accepted – beyond reasonable doubt – that he had committed the offences alleged.  Given the circumstances of the offending the decision to cancel his registration was the only appropriate order the Tribunal could have made.

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

Categories: Researchers

Withholding CPR in the face of parental objection

Today’s question raises the dilemma of first aiders withholding resuscitation but this time where the patient is a child. My correspondent asks:

One of our trainers had a question from one of their students during a training course … The question is “What are the legalities for a first aider if they commence CPR on a child (someone under the age of 18) and the parents are stating that they do not wish for CPR to be commenced on their child?”

The starting point is that consent is a pre-requisite to allow anyone to touch anyone else (Collins v Wilcock [1984] 3 All ER 374).  Consent is not required in an emergency (Rogers v Whitaker (1992) 175 CLR 479) but for that doctrine to apply it ‘there be a necessity to act when it is not practicable to communicate with the assisted person’ (In Re F [1990] 2 AC 1). 

It is not practicable to communicate with a patient in cardiac arrest, but it is, in the context of the question, practicable to communicate with the child’s parent.  The parents of children have responsibility for determining the child’s best interest and for consenting to or refusing consent to medical treatment (Marion’s case [1992] HCA 15; see also for example Minors (Property and Contracts) Act 1970 (NSW) s 49)).  

Although a competent adult ‘… is free to decide whether or not to submit to treatment recommended by the doctor… the patient is entitled to reject the advice for reasons which are rational, or irrational, or for no reason’. (Sidaway v Bethlem Royal Hospital [1985] AC 871; see also PBU & NJE v Mental Health Tribunal [2018] VSC 564, Malette v Shulman (1990) 67 DLR (4th) 321)). When it comes to children an adult decision maker must be guided by consideration of the patient’s best interests rather than giving consent for their own or someone else’s best interests (Marion’s case [1992] HCA 15).

For a person to be capable of giving a valid consent (Gillick v West Norfolk and Wisbech Area Health Authority [1986] 1 AC 112; In Re C (Adult: Refusal of Treatment) [1994] 1 WLR 290) they must be competent; that is they must be able to:

1. take in (and comprehend) and retain the treatment information,

2. believe that information, and

3. weigh that information, balancing risks and needs.

With that information we can answer the question.

Prima facie if the parents withhold consent for treatment, then treatment without that consent would be an assault. But that simple scenario begs several questions.

First, are the parents competent?  Competency is relevant at a specific time and for a specific decision. The parents may normally be competent but if their child is in cardiac arrest they may – at that point – not be competent. For example, if a parent is nursing their dying child and is unwilling to let the child go to allow CPR to be performed, maybe they are so overwhelmed by grief that they cannot ‘take in’ what is being said when those around are urging the parent to let go and let others provide care.

Second, are they acting in the child’s best interests?  This may be uncontroversial if the child is suffering from a life limiting illness and their death was expected. In this case there may be documented DNR orders. The counter example is the child in need of CPR because of an attempt by a parent to smother the child.  In that scenario, the parent is clearly not acting in the child’s best interests.

Finally, there is the practical issue of whether it would be possible to perform CPR or if the parent will physically stop the first aider.  If you cannot access the patient or the parent is going to resist with force, then a first aider will not be able to perform CPR regardless of the legalities.

Risk assessment

We can conduct a legal risk assessment.  A first aider is not under a duty to assist.  If they do not perform CPR because the parents have refused, the child will die.  The cause of the child’s death will be whatever caused them to be in cardiac arrest. The first aider is under no duty to commence CPR so can face no legal issues for not performing CPR. The responsibility for the decision to withhold CPR will fall to the parents in the same way that a person is responsible for the outcome if they refuse their own treatment (Neal v Ambulance Service NSW [2008] NSWCA 346; Malette v Shulman (1990) 67 DLR (4th) 321)).

If you do perform CPR when the parent’s object there is a very small risk that someone may see that as a legal issue. Where the patient was at the end stage of a terminal illness and the parents in consultation with their medical practitioners had determined that CPR was not to provided, and where that is clearly communicated it would be both unlawful and unethical to provide CPR.

In unexpected emergencies, eg drowning or a motor vehicle accident, no court would be critical of an attempt to save a child’s life even in the face of a distraught parent saying ‘no’.  The question would be are they saying ‘no’ to CPR or ‘no’ to the situation they now face?

Remember too that first aiders would enjoy the benefit of good Samaritan legislation (except in Queensland) and provided their actions are in ‘good faith’ ie they have considered the nature of the parent’s statements and are not confident that the decision is being made by a person who is at that moment competent and acting in the child’s best interest, then there is no liability even if that assessment was wrong.

Conclusion

The law is unlikely to ever get involved in the scenario described. The fundamental principle is that it is the parents who consent to care for their children. If a parent refuses consent then treatment should be withheld in the same way that it would be withheld if a person refuses consent for their own treatment. When it comes to children however the parent’s decision must be motivated by the child’s best interests so if the decision is not in the child’s best interests then it may not be lawful. It is beyond a first aiders’ capacity to determine that issue. A first aider may be able to consider whether, at that moment, the parent is competent to make the decision. 

There is no legal obligation to provide CPR particularly if the parent of the child is physically able and prepared to prevent the first aider having access to the child.

The answer to today’s question will ultimately depend on the circumstances of each case – context is everything.

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

Categories: Researchers

NSW RFS firefighter imprisoned for multiple child sexual offences

I took some time thinking about whether I should report on this case. The point of reporting is to distil some lessons for emergency workers or the emergency services not merely to report for its own sake particularly where the particular facts are egregious and may be triggering.  But there are lessons to learn in particular:

  1. The relevance of volunteer service to ‘good character’;
  2. Warnings to those asked to write references; and
  3. The relevance of PTSD.
The case

The case is R v Scholz [2023] NSWDC 222. Mr Scholz was the captain of a NSW Rural Fire Service fire brigade. On 15 March 2023 he was convicted by a jury of 13 sexual offences involving two high school children. The offences occurred between February and April 2021. He was sentenced to 14 years imprisonment with a non-parole period of 8 years and 8 months.  He will remain in gaol until at least 28 September 2031.

We do not need to report on all the facts other than those relevant to the RFS and his RFS service.  The victims, and another complainant, all knew each other from school.  They also knew the offender’s son through school. At least one of the complainants was an RFS cadet. The offending occurred in the offender’s car or during outdoor recreational activities – motorcycle riding, fishing, camping – rather than at or through identified RFS activities though on one occasion with offender and victim were together after the victim had assisted the RFS brigade during flood relief activities.

The relevance of volunteer service to ‘good character’;

A defendant’s good character can be raised in two contexts in the criminal process. An accused person may want to raise their ‘good character’ as part of their defence – in short “I’m not the sort of person who would have committed the offence alleged”.  It may also be raised in sentencing – a prior blameless life of service may mean that there is less need to deter an offender and everyone expects a ‘first offender’ to get a lesser sentence than a person with a long criminal history.  At [109] Aberdee DCJ said:

There was evidence at trial, which I noted in my summing up, regarding his extensive service and attainment of leadership positions within the Rural Fire Service … and his activities in mentoring and incidental involvement in charitable fund-raising.

The problem is how to deal with ‘good character’ when it is that very ‘good character’ (or at least a reputation of good character) that allowed the offending to occur. The victims were ‘both young girls, who essentially lacked fathers’ ([37]).  The offender was trusted by the victims, and their mothers, because of his standing in the community and the RFS.  The Crimes (Sentencing Procedure) Act 1999 (NSW) s 21A(5A) says:

In determining the appropriate sentence for a child sexual offence, the good character or lack of previous convictions of an offender is not to be taken into account as a mitigating factor if the court is satisfied that the factor concerned was of assistance to the offender in the commission of the offence.

At [116] His Honour said:

I am satisfied beyond reasonable doubt that the offender’s good character, in particular, assisted him in the commission of his offending. This appeared to be implicitly acknowledged by the offender at trial; where he portrayed himself as being responsible and, indeed, a pillar of the community – a local RFS ‘hero’ – who prudently made known to the mothers of the two victims his involvement in and role with the RFS – itself a badge of good character – and even went so far as to assure … mother that he had undertaken a ‘working with children’ check. … mother’s knowledge of his having that particular credential helped her to form an assessment of the offender’s good character… His good character was of some assistance to the offender. Accordingly, I do not treat his prior good character, itself, as a mitigating factor.

Warnings to those asked to write references.

The offender had references from three other firefighters including two other brigade captains. At [110]:

They commonly opine that he is a well respected member of the local community who had rendered diligent and conscientious service to, but not limited to, the RFS. Both of the Brigade Captains noted the responsibilities reposed in the occupant of that office and commended the offender for the way he discharged his responsibilities.

When writing a reference for a person before the court, the referee has to consider whether the reference is intended to support the argument that the person is ‘not guilty’ or to support a claim for mitigation of sentence based on their prior good character.  A reference that says ‘in my opinion this person is not the sort of person likely to have committed the offence charged’ is of no value if the person has entered a plea of guilty, or been convicted by a jury. 

Equally a reference that reads like a reference in support of a job application is of no value. As a practising lawyer I always advised clients that the referee need to acknowledge why the reference was being written – ie for the benefit of the court – and where it was to be used in sentencing it had to identify the offences.  The referee has to say “I know person x is appearing before you to be sentenced for these offences …., and even knowing that I’m still prepared to give this testimonial”.  If the referee does not know the offender is being sentenced for multiple child sexual offences, then their character assessment is of little relevance as they may have a different view if they did know what the offender had done.

Another important part of a reference is that it must express the author’s opinion.  As a lawyer I might have given a draft first sentence where it did set out the offences involved; but then ask the author to express their opinion of the offender given that knowledge. In this case His Honour said (at [111]) ‘A slight concern that the Court is a pro forma element to the testimonials: both Brigade Captains used the exact expression …’

If the offender, or the offender’s lawyer, writes the reference then they are of little value.  In this particular case the courts expressed only a ‘slight concern’ and nothing much turned on the particular common part of the reference, but it is a warning to anyone is asked to write a reference, and who wants to support a friend who is also an offender, to make sure they write their own reference in their own words.

The relevance of PTSD

It’s recognised that service with the emergency service is traumatising and many workers – volunteers and employed – will develop PTSD.  There is great sympathy for emergency workers who suffer those symptoms but there are limits to that. 

In this case (at [89]):

The offender placed before this Court no less than four reports from mental health professionals: Dr Rodriguez (a psychologist), Dr Canaris, Professor McFarlane AO and Dr Nagesh. Some of these reports, which preceded the trial, appear to have been created to assist the offender with a civil claim, apparently against the RFS.

At [100]-[102]:

All of the mental health professionals diagnosed the offender as suffering from Post-Traumatic Stress Disorder (PTSD)…

Professor McFarlane and Dr Nagesh also diagnosed him as having a Major Depressive Disorder…

He has apparently been in receipt of workers compensation benefits for his PTSD since April 2021, attributable to the trauma experienced at the RFS. Dr Rodriguez was informed that the offender had attended over 40 serious motor vehicle accidents involving the death of at least one person, and in excess of 20 serious fires involving the death of another. The offender told Dr Canaris that in 2016, he went to a house on fire and stepped on a dead body numerous times; and he had a flashback about that episode in 2021.

The court did not consider that this PTSD contributed to his offending. At [106]-[107] Aberdee DCJ said:

[The Crown Prosecutor] …argued, the mere presence of a mental condition at the time of the offending, if it is not causally connected to the offending, does not automatically lead to a more lenient sentence. That depended on the circumstances. In this case, the offender’s PTSD should not diminish the force to be given to general deterrence.

There was no suggestion advanced on the offender’s behalf that his PTSD reduced his capacity to understand the wrongfulness of his conduct towards the victims or to exercise self-control, reduce his cognitive faculties or emotional restraints nor that he was unaware of the consequences of his actions. In the circumstances, I do not consider that his PTSD reduces the need for general deterrence.

General deterrence is the sentencing principle that the court should set a sentence that would or might deter others from committing similar offences.  Specific deterrence is the need to set a sentence to deter this offender from future offences. With respect to specific deterrence His Honour was of the view that the need for specific deterrence was reduced to the offender’s now acknowledgment of and attempt to get treatment for his PTSD (see [108]).  And at [138] His Honour said:

… the Crown did not dispute that he has PTSD. Whatever be the position in terms of his access to medical treatment, I accept that the custodial setting in which he has been placed will mean that his time in custody will be more onerous than it would be. Although the weight to this factor is limited when considering the length of the sentence, I propose to take this factor into account when considering the length of his non-parole period.

PTSD and other mental illnesses can be relevant if they contribute to the offending, but the mere presence of a mental illness, including one caused by otherwise meritorious service is not a mitigating factor when it comes to sentencing.

Conclusion

This was a distressing case to read. The distress to the victims and their family must be immense. I suspect this case is also a cause of distress to members of the RFS, in particular members of Mr Scholz’s brigade, given the abuse of trust and perhaps their loss of confidence in their ability to judge character. 

The mere fact that an RFS member has been convicted of an offence is not necessarily something I need to report but I felt this case warranted a report given the close connection between the offender’s RFS service and the offending and the discussion of the relevance of his RFS service to his prior good character and PTSD.  The discussion gives some guidance of how and when RFS service may be relevant or, in this case, why it was not relevant.

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

Categories: Researchers

“Medical law expert issues warning to WA hospital staff over patients who want to leave”

Michael Eburn: Australian Emergency Law - 22 June, 2023 - 14:33

As a result of my post No power to detain a patient just because it’s good for them (January 22, 2023) I was invited to speak at the Australian Nursing Federation’s WA Legal Conference in Perth on 19 June.  I was reporting on the law following a case where a person was acquitted of injuring a hospital security guard after the guard, in good faith but illegally, tried to bring the person back into the hospital. The original story was reported by David Weber who was at the ANF conference and who reported on my presentation – see David Weber, “Medical law expert issues warning to WA hospital staff over patients who want to leaveABC (Online) 20 June 2023.

Whilst I was in Perth I also took part in an online CPD session for the Australian College of Emergency Medicine where the issues of patient autonomy and the doctor’s duty were discussed. I anticipate that I will be able to make access to that recording available when the ACEM release it.

I along with colleagues from University of Queensland and the ACEM have submitted a paper to the journal Emergency Medicine Australia. That is yet subject to acceptance but assuming it is published I will also be able to make that available here in due course.

Finally I would like to acknowledge the security officer who was involved in the incident. He has been in contact with me and explained how his injuries became life threatening. The seriousness of his injuries do not determine the legality of the person’s conduct in resisting unlawful detention but do serve to remind health practitioners that if they direct staff to detain a patient, they are putting that staff as well as the patient at risk of physical injury. Where there is no lawful basis for the decision the staff and the hospital may also be at risk of criminal or civil legal proceedings. Before directing a person to be detained health practitioners do need to be sure of the legal basis for their decision and reference to a generic ‘duty of care’ is not sufficient.

See also

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

Categories: Researchers

The legal duty of pool lifeguards

Michael Eburn: Australian Emergency Law - 20 June, 2023 - 17:13

Today’s question is about pool lifeguards. My Queensland correspondent asks:

(1) What is the legal duty, (if any), of lifeguards to be attentive to the safety of pool users. Specifically is there a legal requirement lifeguards must have their eyes focussed on (1) pool users, (2) the surface of pools and (3) under the pool surface including to the bottom of the pool AND is there a legal requirement that the focus of lifeguards must not deviate away from these three areas for more than a set time, (eg 10 seconds), or a specified time, (eg the time it takes for a person to be in danger of inhaling water into their lungs).

My question is prompted by one of my, (more experienced), colleague lifeguards saying to me that there is a legal requirement that lifeguards must keep their eyes focussed “on the pool” whereas the management of our pools states that our job description requires lifeguards to perform other duties concurrently with lifeguarding including:

  • checking that sauna users take towels with them into the sauna;
  • check that sauna users are wearing wristbands showing that they have paid for sauna access;
  • check that children under 10 years are wearing wristbands colour coded to their age above or below 5 years;
  • check that adult supervisors of children under 10 are focussed on their child and not their mobile device and “educate” transgressing adults;
  • check that pool users of all ages do not stay underwater for more than 5 seconds and “educate” transgressing pool users;
  • change pool lane ropes to suit different pool uses including “water exercise classes” versus “various speed lap swimming lanes”;
  • picking up leaves, paper, food, ‘band aids’ from the pool surrounds.

These duties necessitate lifeguards focussing their thoughts and eyes away from the pool and pool users for varying times from 5 seconds to over 25 seconds.

(2) What is the legal duty, (if any), of lifeguards for the safety of sauna users. Specifically, is there a legal requirement for pool user lifeguards to also watch over the lives of sauna users, particularly sauna users who disregard displayed sauna use rules including:

  • do not exercise in the sauna;
  • sit on a towel in the sauna;
  • do not stay in the sauna for more than 15 minutes

and/or sauna users who do not follow internet published sauna advice such as https://explore.globalhealing.com/7-dangers-of-the-sauna/ or https://betterhumans.pub/a-guide-to-using-sauna-to-increase-your-health-and-longevity-4c68d7739132.

The law

There are no specific laws to answer these questions, so the answer has to come from general principles. The operator of the pool – the person conducting the business or undertaking – has both statutory and common law duties to take reasonable care for the safety of those that come into the pool.  Pool users will include people of different physical and intellectual capacities, different ages, different English language skills (whether English is their first language or not) and differing swimming capacities and all of those variations must be considered. 

The Work Health and Safety Act 2011 (Qld) s19(2) says the PCBU has a duty to ‘ensure, so far as is reasonably practicable, that the health and safety of other persons is not put at risk from work carried out as part of the conduct of the business or undertaking’. 

It is axiomatic that the occupier of the premises – the pool – owes a common law duty of care to those that come to use the pool that is, ‘a duty to take precautions against a risk of harm’.  The Civil Liability Act 2002 (Qld) s 9(1) says:

A person does not breach a duty to take precautions against a risk of harm unless—

(a) the risk was foreseeable (that is, it is a risk of which the person knew or ought reasonably to have known); and

(b) the risk was not insignificant; and

(c) in the circumstances, a reasonable person in the position of the person would have taken the precautions.

Although expressed a negative statement – ie when a person is not liable rather than when they are – we can infer that a person does breach a duty to take precautions if they fail to take precautions that a reasonable person would take in response to a foreseeable and not insignificant risk.

The obvious risks with respect to a pool and sauna is the risk from drowning and the risks listed on the websites referred to about the dangers of sauna use.  When considering what a reasonable person would do in response to those risks a court will:

… consider the following (among other relevant things)—

(a) the probability that the harm would occur if care were not taken;

(b) the likely seriousness of the harm;

(c) the burden of taking precautions to avoid the risk of harm;

(d) the social utility of the activity that creates the risk of harm.

One way to avoid the risk of drowning in a pool is to close the pool or have very little water in it. But there is ‘social utility’ in having pools, and sauna’s, available.  So simply closing the pool is not a reasonable response to the risk. If we put that option aside, and if we limit the discussion to the pool (not the sauna) the probability or likelihood of someone getting into difficulty and drowning is quite high.  The Australian Institute of Health and Welfare reports that in 2020-21 there were 570 hospitalisations and 225 deaths from drowning.  29% of those hospitalisations and 1.6% of the deaths arose from incidents in pools.  Presumably the death and injury rate in pools is relatively low because of the precautions taken with respect to pools including compulsory fencing of private pools and the use of lifeguards and supervisors in public pools.

The likely seriousness of any harm is obvious – drowning is a fast and significant cause of death and periods of oxygen deprivation, if not fatal, can lead to permanent and debilitating brain injury.

The risk of drowning is not, however, the only risk at an aquatic facility. People can slip and fall, and as my correspondent has noted, there may be significant risks to sauna users.  Lifeguards are presumably employed or are at least available to save anyone’s life – whether they have drowned or had a cardiac arrest in a sauna.  If a sauna user collapsed it would be part of the lifeguard’s duties to render assistance. A lifeguard could not, reasonably, refuse to provide assistance because the person was not in the pool or failed to take reasonable care for their own safety. The lifeguard, like the PCBU and every employee, has a duty to help look after the health and safety of everyone at their workplace (Work Health and Safety Act 2011 (Qld) s 28).

For guidance on how to manage risks at a pool see WorkSafe Queensland Safety at swimming pools (20 December 2021) and Workplace Health and Safety Queensland Managing risks at publicly accessible pools (2015). One way to mitigate the risk of drowning and other injury and death is to employ lifeguards/first aiders/facility supervisors. It is up to the PCBU/employer to determine what are the duties of people they employ as lifeguards and to ensure there is a safe system of work to deal with all the risks at the workplace (Work Health and Safety Act 2011 (Qld) s 19(3)(c)).

In deciding what is a ‘reasonable’ response to the various risks inherent in a pool and sauna complex, a PCBU/pool operator would look to professional standards. Royal Life Saving Society Australia (RLSSA) publishes Guidelines for Safe Pool Operations (but these are only available for a fee so I cannot comment on the specific guidelines).  The RLSSA make available their document SU 1.01 Bather Supervision (1 July 1996).  That document says, amongst other things, ‘Lifeguards should be in a position to maintain supervision of the water at all times.’

It cannot be the case that every lifeguard must ‘must keep their eyes focussed “on the pool”’ at all times because there are other duties and lifeguards may have to step away to take a break etc. So the ‘rule’ would have to be that there must be sufficient lifeguards ‘in a position to maintain supervision of the water at all times’ taking into account the other duties the lifeguards are tasked to perform and to allow staff rotation and breaks.

Lifeguard training included training in competency SISCAQU006 Supervise Clients in an Aquatic Facility or Environment (see https://www.lifesavingtraining.com.au/course-details/?course_id=91107&course_type=w).  That unit has been replaced with SISCAQU019 – Supervise patron safety in aquatic locations (Release 1). The performance criteria for this unit includes:

2.1. Use scanning and patrolling strategies to monitor patron activity and behaviour in venue areas and in the water.

2.2. Monitor parent or carer supervision of children according to organisational supervision and risk management procedures.

2.3. Monitor activity of patrons at risk and those with special needs, according to organisational supervision and risk management procedures.

2.4. Identify hazardous patron behaviours that pose a risk to the individual and other patrons.

2.5. Inform patrons of unsafe behaviour and clearly, courteously and constructively provide information about safety rules to support compliance and safety.

Discussion

The thinking behind modern Work Health and Safety legislation is that each PCBU must do their own risk assessment and determine how they meet their obligations considering the unique features of their own business.  The legislation has moved away from strict rules – a one size fits all list.  So, there is not a ‘law’ that says ‘lifeguards must have their eyes focussed on (1) pool users, (2) the surface of pools and (3) under the pool surface including to the bottom of the pool AND … the focus of lifeguards must not deviate away from these three areas for more than a set time, (eg 10 seconds), or a specified time…’

In the worst-case scenario of a patron’s drowning death, we would expect that an inquiry by police, WorkSafe or a court action for compensation would explore the procedures at the particular pool to determine if the response to the known risk was ‘reasonable’.  Asking lifeguards to perform other supervisory tasks would appear to be consistent with the training module SISCAQU019. Whether they should be performing those duties would depend on questions such as how many lifeguards are on duty – is supervising the sauna leaving the pool unsupervised or do lifeguards rotate through various duties in order to keep alert?  If they are talking to pool users, are they still able to see the pool or are they required to be in areas away from the water?

The PCBU also has an obligation to sauna users, including an obligation to supervise the sauna and to warn users if they are using the sauna in a way that is exposing them to danger.  Whether supervising the sauna is part of the lifeguard’s duties is a matter for the PCBU and the terms upon which the lifeguards are employed.  A PCBU could employ a dedicated sauna supervisor, or lifeguards some of whom are allocated to the pool and some to the sauna or could task its lifeguards to supervise both the pool and the sauna.  What is reasonable, to return to the points above, would depend on factors such as the size and design of the facility, the number of lifeguards employed, the number of patrons etc. 

Conclusion

There is no law that says specifically how lifeguards must perform their task though there may be standards set out in documents such as the RLSSA Guidelines and training materials.  The law says the conduct of the lifeguards and the PCBU that employs them must be reasonable. It is up to the PCBU to determine whether they employ cleaners, supervisors and lifeguards whose only task is to watch pool users, or whether lifeguards have more general safety duties such as those described.   If the PCBU’s response to the risk is not ‘reasonable’ then the PCBU may face prosecution for breach of the WHS Act or negligent manslaughter or may be liable in a civil claim for damages. 

As the law quoted above shows, what is ‘reasonable’ depends on the consideration of many factors. If lifeguards feel that their duties overstretch them so they cannot keep a reasonable eye on pool users, they should raise that with their employer.

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

Categories: Researchers

Ambulance Victoria appeal against flexible work application dismissed

Michael Eburn: Australian Emergency Law - 17 June, 2023 - 14:22

In my post Application for flexible work arrangements – Ambulance Victoria (February 23, 2023) I reported on the decision of Commissioner Johns in the matter of  Fyfe v Ambulance Victoria [2023] FWC 49. Ms Fyfe is a paramedic who had applied for Flexible Work Arrangements (FWA) to better manage her personal work/life commitments. The issue involved an application to vary Ms Fyfe’s night shift arrangements.  Commissioner Johns explained (at [5]-[9]):

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

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

The application was rejected by Ambulance Victoria (AV). The Ambulance Victoria Enterprise Agreement 2020 cl 23 provides employees the right to apply for flexible work arrangements. Clause 23(4) says ‘The Employer may only refuse the request on reasonable business grounds.’ Commissioner Johns found that AV did not have ‘reasonable business grounds’ to reject the application. In my original post I said:

This was not an order requiring AV to accept Ms Fyfe’s application for flexible work arrangements, rather it was an order that the grounds put forward by AV for refusing the application had not been established. Given, however, that these are the only permitted grounds for refusing an application AV will, presumably, now accept the application.

But AV did not, instead they lodged an appeal to the Full Bench of the Fair Work Commission – Ambulance Victoria v Fyfe [2023] FWCFB 104. 

In the original decision, Commissioner Johns had determined that AV had made no attempt to negotiate with Ms Fyfe to see if mutually acceptable arrangements could be made. Commissioner Johns said (at [102] of his judgment) ‘It is obvious that more could have been done to reach a mutually satisfactory outcome but was not.  Consequently, that renders AV’s decision unreasonable.’  The issue on appeal ([22]) was whether cl 23 of the Enterprise Agreement ‘required … [AV] to genuinely try to reach agreement with the Respondent before it determined the request for a flexible work arrangement.’  AV argued that if they had ‘reasonable business grounds’ to reject the application they did not need to try to reach agreement.  Commissioner John’s approach to cl 23 and his conclusion that AV’s failure to try to reach agreement meant their grounds were not ‘reasonable’ ‘i.e. affected by reason and sound judgment’ ([15]) was, they argued an error in his interpretation of the law and further it was an error that coloured his conclusions. Had he not made that error, they argued, Commissioner Johns would have found that there were ‘reasonable business grounds’ to reject Ms Fyfe’s FWA application.

There were other arguments also going to Commissioner John’s reasoning including that he made a mistake when he said that the question of whether the ‘business grounds’ advanced by AV had to be balanced against the applicant’s circumstances.

Outcome

AV was given permission to appeal because the Full Bench agreed (at [64]) that ‘whether or not there are discussions regarding a request for a flexible work arrangement … does not form part of the assessment of whether there are reasonable business grounds for’ rejecting that application. The conclusion by Commissioner Johns that AV had acted unreasonably in not negotiating with Ms Fyfe ‘permeated his assessment of whether the Appellant had reasonable business grounds to refuse the request’ and this was an error.

Even though they were allowed to appeal, the appeal was dismissed because the Full Bench found that even with this error, Commissioner Johns had come to the correct conclusion that is there were no reasonable business grounds to reject the application. Importantly the Commission looked to the AV FWA policy and procedure documents. At [74] the Commission said:

The FWA Policy and FWA Procedure provide the parties with a framework for determining whether a request for flexible working arrangements will be approved or denied. The framework is based on the Appellant’s stated commitment to provide an inclusive and flexible workplace and acknowledgement of the importance of work/life balance, recognition of family responsibilities and endorsement of flexible working arrangements, whilst balancing operational and business requirements. The framework makes clear flexible working arrangements are not an automatic entitlement but rather, to be negotiated so as to balance the reasonable operational and business requirements and the personal needs of employees. It contemplates discussion and negotiation, albeit not in mandatory terms.

They continued (at [81]; emphasis added):

We accept there were business grounds for the refusal of the request. However, we are not … persuaded an assessment of reasonable business grounds was performed with due consideration to the operational and business requirements and the Respondent’s circumstances, as required by the framework.

That is cl 23 of the Enterprise agreement may have not specifically directed AV to negotiate with the applicant, but the FWA policy and procedure did.  At [86] the Full Bench said:

In the absence of the Appellant adequately following the FWA Policy and FWA Procedure by assessing and balancing the competing considerations involved, we are not persuaded that the Appellant had reasonable business grounds for refusing the First FWA Request.

Discussion

As with the first case this is not an order requiring AV to accept Ms Fyfe’s application. However, the right to ask for flexible work arrangements is set out in both the Enterprise Agreement and the Fair Work Act (Cth) s 65.  The Act says (s 65(5)) ‘The employer may refuse the request only on reasonable business grounds.’  A finding by Commissioner Johns, confirmed by the Full Bench, that AV did not demonstrate ‘reasonable business grounds’ would suggest they should (if not must) now accept Ms Fyfe’s application.  But they may have other arguments and given the original application was made in February 2022 and was proposed for one year, it may be that the application is no longer relevant.  If Ms Fyfe were to make a new application, then AV would have to consider whether there are now ‘reasonable business grounds’ to reject the application.

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

Categories: Researchers